[*1]

Second Department, October 24, 2006

APPEARANCES OF COUNSEL

Picciano & Scahill, Westbury (Robin Mary Heaney and Francis J. Scahill of counsel), for appellant.

Michael A. Forzano, Brooklyn, for respondent.

{**36 AD3d at 93} OPINION OF THE COURT

Miller, J.P.

The plaintiff settled his action to recover damages for personal injuries against the tortfeasor for $25,000, the limit of the tortfeasor’s automobile liability policy, and subsequently commenced this breach of contract action against his own insurer, State Farm Mutual Automobile Insurance Company (hereinafter State Farm), to recover damages under the supplementary underinsured motorist endorsement of his policy. In this appeal, the issue is whether the insurer may raise as an affirmative defense the fact that the insured did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). An examination of the pertinent statutes leads to the conclusion that it may not. Accordingly, the Supreme Court properly granted the plaintiff’s motion to strike that affirmative defense from the insurer’s answer.

I

On December 29, 1997, the plaintiff purchased an automobile liability insurance policy from State Farm. Among other coverages afforded, the policy provided supplementary uninsured motorist coverage in the sum of $100,000 per occurrence. The policy was in effect when, on April 15, 1998, the plaintiff was involved in an automobile accident; his car was hit by a car driven by Roman Seleznev at an intersection in Brooklyn. The plaintiff sued Seleznev to recover [*2]damages for personal injuries in the Supreme Court, Kings County. While the pleadings in the personal injury action have not been included in the record on this appeal, in his complaint in the instant action, the plaintiff alleged that as a result of the accident, he sustained serious injuries, including herniated lumbar discs, bulging cervical discs, and internal derangement of the spine and of the neck, upper back, and lower back, and allegedly sustained “permanent{**36 AD3d at 94} debilitating injuries, medical expense and a loss of enjoyment of life.” He went into greater detail in a bill of particulars he served in this action, alleging, inter alia, a herniated disc at L4-L5, a bulging disc at C5-C6, impingement on the thecal sac, severe upper and lower back injury, a head injury, and postconcussion syndrome. He claimed that he was unable to sit or stand for long periods of time, and unable to sleep, and that he had been permanently partially disabled. He asserted that following the accident, he made an emergency room visit only and, thereafter, he was confined to his home for one month. He was out of work for one month. He stated that health care expenses were paid by the no-fault carrier, and that there were no out-of-pocket expenses.

The plaintiff timely notified State Farm of the accident, and of the commencement of his personal injury action. Seleznev’s insurer tendered its $25,000 policy limit for liability coverage in settlement of the plaintiff’s personal injury action. The plaintiff notified State Farm of the proposed settlement, and on June 19, 2003, requested its consent. The plaintiff claimed that State Farm did not respond within 30 days and thus it was presumed to have consented to the settlement (see 11 NYCRR 60-2.3).

Thereafter, the personal injury action was settled for the sum of $25,000. The plaintiff claimed that his actual damages “far exceeded” the $100,000 limit of his policy with State Farm. He submitted a claim to State Farm in the sum of $75,000 ($100,000 less the $25,000 he received in his settlement with Seleznev’s insurer). In connection with his claim to State Farm, the plaintiff alleged that he submitted to an examination under oath as well as multiple physical examinations, completed claim forms, and provided medical reports and authorizations.

State Farm did not pay the $75,000 claim.

In its answer to the complaint, State Farm denied the plaintiff’s material allegations and raised five affirmative defenses. As relevant here, in its fifth affirmative defense, State Farm alleged that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and, therefore, he had no right to maintain this action; his exclusive remedy was confined to article 51 of the Insurance Law.

By notice of “cross” motion dated January 31, 2005, the plaintiff moved to strike State Farm’s fifth affirmative defense of lack of serious injury. (The motion was styled as a “cross” motion, but there was no recitation in the papers before the Supreme Court, or in the briefs on appeal, that State Farm{**36 AD3d at 95} made a motion in response to which the plaintiff could “cross-move.”) The plaintiff argued that Insurance Law § 5104 (a) provided that the right to recover for pain and suffering was conditioned on the plaintiff sustaining a serious injury in any action by or on behalf of a covered person against another covered person for injuries arising out of negligence in the use or operation of a motor vehicle. This action was not a negligence action by a covered person against another covered person—nor was it a negligence action. It was a breach of contract action. The only way the restriction could apply in this case was if the insurance contract provided for it, but the plaintiff claimed it did not. The record does not contain a copy of the insurance contract.

The plaintiff then explained that, by statute, the serious injury requirement applied to uninsured motorist coverage (the type of coverage that is triggered, for example, when a tortfeasor is unknown, as in a hit-and-run, or where a known tortfeasor has no coverage), pursuant to Insurance [*3]Law § 3420 (f) (1). Supplementary underinsured motorist (hereinafter SUM) coverage, on the other hand, which applies in situations such as the one here, is triggered when a tortfeasor has insurance coverage which is not sufficient to compensate the injured party for the injuries suffered; the SUM coverage then acts as “excess” coverage over that of the tortfeasor. The latter type of coverage is described in Insurance Law § 3420 (f) (2) (A).

Both coverages are statutory, according to the plaintiff, and thus the statutory provisions control. The uninsured motorist statute requires the plaintiff to sustain a serious injury in order to recover such benefits. In contrast, the statutory provision governing underinsurance coverage contains no such requirement. That made sense, the plaintiff argued, because in a case such as this one, insurance is in place with respect to the tortfeasor, and “the serious injury threshold has been dealt with in that case.” The exhaustion of the tortfeasor’s policy “assumes the existence of a serious injury, or nothing should have been paid at all.” For that reason, the plaintiff maintained, the serious injury requirement was not included in the underinsurance coverage provision.

In opposition to the motion to strike, State Farm submitted, inter alia, a copy of what it represented was the subject State Farm policy, but actually was a copy of the policy’s declarations pages.

State Farm contended that the plaintiff’s argument did not refer to 11 NYCRR 60-2.3, which contains mandatory requirements{**36 AD3d at 96} for SUM endorsements. Among other things, the regulation requires such endorsements to contain an exclusion from SUM coverage for noneconomic loss when the insured has not sustained a serious injury as defined in Insurance Law § 5102 (d). In this case, in accordance with that regulation, the subject policy contained such an endorsement, including the above exclusion. State Farm referred to the policy as proof of that point—but, as noted above, it submitted only the declarations pages, and no such exclusion appears in the papers provided. Thus, State Farm maintained, contrary to the plaintiff’s contention, the subject policy did contain a contractual requirement that the policyholder sustain a serious injury in order to recover SUM benefits under the policy.

In reply, the plaintiff pointed out that the endorsement State Farm referred to was not attached to its papers; rather, only the declarations pages were attached. The declarations pages referred to SUM coverage as one of the subject policy’s endorsements, but the endorsement itself was not provided. In any event, the plaintiff argued, the endorsement State Farm referred to differed from the governing statute, in a way that was less favorable to the insured. In other words, the statute said nothing about a serious injury threshold; thus, any endorsement setting such a threshold conflicted with the Insurance Law § 3420 (f) (2).

The Supreme Court granted the plaintiff’s motion to strike State Farm’s affirmative defense of lack of serious injury. The court stated as follows:

“SUM coverage is available when the monetary limit of the insured’s bodily injury liability coverage is, as here, greater than the same coverage of the tortfeasor. In that case, the injured party’s policy supplements the damages which he or she may recover up to the limits of the SUM coverage once the tortfeasor’s coverage is exhausted.

“Insurance Law § 5104 provides, in part, that the right to recover for non-economic loss is conditioned upon plaintiff having sustained a ‘serious injury’ in any action by or on behalf of a ‘covered person’ against another ‘covered person’ for personal injuries. While plaintiff in this case is a covered person, State Farm is not. Further, [*4]while ‘serious injury’ is a necessary predicate to a claim for ‘uninsured{**36 AD3d at 97} motorist coverage’ (Insurance Law § 3420 [f] [1]), the language contained in Insurance Law § 3420 (f) (2), which relates to ‘supplementary underinsured motorist coverage,’ contains no provision which conditions recovery upon a ‘serious injury.’ To the extent that State Farm asserts that its policy contains an endorsement which requires plaintiff to have sustained a ‘serious injury’ as a condition of SUM coverage, the court finds that the underlying action brought by plaintiff against the tortfeasor (Roman Seleznev) would not have been settled for the policy limits if not for the existence of a ‘serious injury.’ The court further notes that State Farm apparently consented to the settlement. Accordingly, the cross motion by plaintiff is granted.”

State Farm appeals. We affirm.

II

First, State Farm’s contention that this Court already has decided the issue this case presents—in favor of insurers—is without merit. Rather, the issue does not appear to have been litigated in any of the Appellate Division cases State Farm cites. Murray v Hartford (23 AD3d 629 [2005]) was an action, like this one, in contract, by an insured against her insurance company, seeking underinsurance benefits. The insurer moved for summary judgment on the ground that the insured had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court denied the motion, and this Court reversed, following a review of the medical reports and deposition testimony. On the merits, this Court concluded that the insurer made a prima facie showing warranting dismissal, which the plaintiff failed to rebut. Brathwaite v New York Cent. Mut. Fire Ins. Co. (13 AD3d 405 [2004]) is another breach of contract action brought by an insured against her insurer for underinsurance benefits; this Court held that the insurer had not made a prima facie showing that the plaintiff did not sustain a serious injury. Both of the foregoing cases seem to assume that the serious injury threshold requirement of the no-fault law applied—because no one argued, as in this case, that it did not.

Finally, Matter of Allstate Ins. Co. v Torre (264 AD2d 477 [1999]) was a proceeding to stay arbitration between the insured and the insurer. There is no discussion in that case of the issue involved here.{**36 AD3d at 98}

On the other hand, the plaintiff has cited unpublished Supreme Court cases that do involve the issue presented here. Those cases favor his position. Their rationale was adopted by the Supreme Court in this case (see Rankine v GEICO Ins. Co., NYLJ, Mar. 22, 2002, at 21, col 6 [Sup Ct, Nassau County, Lally, J.]; Birch v New York Cent. Mut. Ins. Co., Sup Ct, Richmond County, Mar. 29, 2004, Vitaliano, J., Index No. 13317/03).

A

The “serious injury” threshold of New York’s no-fault scheme was added by amendment to the Insurance Law in 1973 (L 1973, ch 13). The purpose of the law is to “compensat[e] victims of automobile accidents without regard to fault” (Montgomery v Daniels, 38 NY2d 41, 46 [1975]). Under the no-fault system, a “covered person” is defined as, inter alia, any operator or occupant of a motor vehicle “which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in [section 321 (2)] of such law” (Insurance Law § 5102 [j]). A covered person may recover for “[b]asic economic loss” (defined at Insurance Law § 5102 [a], and includes medical and hospital expenses, and loss of earnings, among other things) up to a maximum of $50,000. Compensation for such loss is payable as “[f]irst party benefits,” following the reduction of the gross amount thereof by certain amounts set out in the statute (see Insurance Law[*5]§ 5102 [b]). ” ‘Non-economic loss’ means pain and suffering and similar nonmonetary detriment” (§ 5102 [c]).

The injured party has a “right to first-party benefits . . . regardless of fault or negligence on the part of the covered person” (Montgomery v Daniels, supra at 47).

The no-fault scheme limits tort recoveries for personal injuries, but only applies to actions between “covered persons.” For example, there cannot be a duplicate tort recovery for basic economic loss. In addition, damages for noneconomic loss are not recoverable in tort unless the plaintiff can establish “serious injury” (Insurance Law § 5104 [a]; see Montgomery v Daniels, supra at 47).

In Walton v Lumbermens Mut. Cas. Co. (88 NY2d 211, 214 [1996]), the Court of Appeals described the no-fault scheme as follows:

“New York’s no-fault insurance law, formally known as the ‘Comprehensive Automobile Insurance Reparations{**36 AD3d at 99} Act,’ was enacted in 1973. It was prompted by the significant problems which had arisen in common-law, fault-based litigation of automobile accidents. Its purposes were to remove the vast majority of claims arising from vehicular accidents from the sphere of common-law tort litigation, and to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of such accidents” (citations omitted).

B

The purpose of the uninsured motorist provision of the Insurance Law is “to provide persons injured by financially irresponsible motorists a fund from which they could seek some compensation for their injuries” (Matter of Lloyd [Motor Veh. Acc. Indem. Corp.], 23 NY2d 478, 481 [1969]). The uninsured motorist provision dates back to 1958, and thus it predates the no-fault law. Writing in 1987, this Court observed that when the uninsured motorist provision legislation was first enacted, “there was no legally significant distinction” between economic and noneconomic losses, and that recovery under the uninsured motorist law as it then existed thus included both those elements of damages (see Fox v Atlantic Mut. Ins. Co., 132 AD2d 17, 21 [1987]). In 1977, just a few years after the no-fault scheme was enacted, the Insurance Law was amended to allow recovery under the uninsured motorist provision for noneconomic loss only in the event of a serious injury (see L 1977, ch 892; Insurance Law § 3420 [f] [1]). In Fox v Atlantic Mut. Ins. Co. (132 AD2d 17, 22 [1987]), this Court commented as follows about the 1977 amendment:

“By engrafting onto the provisions governing mandatory uninsured motorist coverage the requirement that serious injury must be sustained as a precondition to recovery for noneconomic loss, the Legislature effectively eliminated the possibility that an uninsured motorist claimant would receive greater monetary protection than that afforded to a person similarly injured by a properly insured driver.”

The uninsured motorist provision currently is codified at Insurance Law § 3420 (f) (1). Among other things, that subdivision requires that motor vehicle liability insurance policies issued upon motor vehicles principally used or garaged in New York{**36 AD3d at 100} contain a provision committing the insurer to pay to the insured the sums described in the statute which the insured or his legal representative is entitled to recover as damages for personal injury or wrongful death from an owner or operator of an uninsured motor vehicle. In addition to the latter category of owners/operators, the statute also includes the owner or operator of an unidentified motor vehicle that leaves the scene of an accident, [*6]a motor vehicle registered in this state as to which at the time of the accident there was not in effect a policy of liability insurance, a stolen vehicle, a motor vehicle operated without permission from the owner, an insured motor vehicle when the insurer disclaims liability or denies coverage, and an unregistered vehicle (Insurance Law § 3420 [f] [1]). The subdivision continues, stating, “No payment for non-economic loss shall be made under such policy provision to a covered person unless such person has incurred a serious injury, as such terms are defined in [section 5102] of this chapter.” (Emphasis added.) The foregoing coverage is mandatory.

C

On the other hand, underinsured motorist coverage—the type of coverage involved in this case—is not mandatory. It may be purchased at the option of the insured, to supplement other coverages, including those mandated by law. Such coverage is triggered if the limits of liability of other insurance policies of other vehicles liable for damages “are in a lesser amount” than the coverage provided to the insured. Its purpose is as follows:

“Underinsurance coverage is designed to increase the level of protection afforded to policyholders injured by negligent drivers who lack adequate liability insurance. Typically, an underinsurance claim arises when a tortfeasor has insurance that satisfies the minimum legal requirements but is insufficient to provide full compensation to the injured claimant . . .

“Insurance Law § 3420 (f) (2) was enacted to allow policyholders to acquire the same level of protection for themselves and their passengers as they purchased to protect themselves against liability to others” (Matter of Metropolitan Prop.& Cas. Ins. Co. v Mancuso, 93 NY2d 487, 492 [1999] [citations omitted]).

The statute providing for supplementary underinsured coverage did not use that term when it was enacted in 1977. It used{**36 AD3d at 101} the term supplementary uninsured coverage. The statute was amended in 1997 to replace the term “uninsured” with the combined term “uninsured/underinsured” (see L 1997, ch 568, § 1). Prior to that amendment, over time, the two words were used interchangeably. As the Court of Appeals noted in Reichel v Government Empls. Ins. Co. (66 NY2d 1000 [1985]), decided over a decade prior to the 1997 amendment, while the optional coverage afforded by the Insurance Law was commonly referred to as “underinsurance,” it nonetheless is a type of uninsured motorist coverage. The Court of Appeals referred to the statute as it was then written, and observed as follows:

“The statutory allowance for supplementary uninsured motorists insurance coverage expands the ‘uninsured motorist’ category to include one who, while maintaining proof of financial responsibility as required by law, and thus being an ‘insured motorist’, nevertheless may be considered an ‘uninsured motorist’ because he is ‘underinsured’ when compared to the coverage of an insured who has exercised the option to purchase supplementary insurance.” (Id. at 1003.)

In 1991, the Appellate Division, First Department, dealt with a case brought by an insured against his insurance company for underinsured benefits pursuant to his policy. The insured was injured in an accident with an uninsured vehicle. The insurer argued that the arbitrator in that case erred in applying the policy’s underinsurance coverage when the insured was involved in an accident with a car that had no insurance. The insurer further argued that the underinsurance only took effect when the other vehicle had some, but an insufficient amount of, coverage. The First Department rejected that argument, noting that underinsurance is supplementary to uninsured coverage. Insureds may increase uninsured coverage by the payment of extra premiums to obtain underinsurance coverage. As the First Department noted, if the offending vehicle has no insurance at all, then it is underinsured by the full amount rather than just the inadequate amount of the policy (see Hae Sup Kim v General Acc. Fire& Life Ins. Co., 171 AD2d 404 [1991]).

The statutory provision governing uninsured/underinsured coverage—Insurance Law § 3420 (f) (2) (A)—now reads, in relevant part: “Any such policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists insurance for bodily injury, in an amount up to the bodily injury{**36 AD3d at 102} liability insurance limits of coverage provided under such policy.” The statute then sets forth the maxima for various scenarios, and contains other provisions, not directly pertinent here. Notably, the provision does not contain the “serious injury” threshold that the uninsured motorist benefit provision does.

D

In 1992 Insurance Department Regulation 35-D (11 NYCRR 60-2.0) was enacted. According to the Appellate Division, Fourth Department, which noted that the terms “underinsured” and “uninsured” had caused confusion in the courts and in the industry, the Superintendent of Insurance promulgated the regulation “whereby both terms are now, for all practical purposes, synonymous” (Matter of Utica Mut. Ins. Co. [Hurd], 221 AD2d 903, 904 [1995]).

The preamble to the regulations states that they are designed to interpret Insurance Law § 3420 (f) (2), which governs the optional coverage, in light of “judicial rulings and experience,” by establishing a standard form for SUM coverage (see 11 NYCRR 60-2.0 [a], [c]).

The purpose of SUM coverage, according to the regulation, is to protect a policyholder when he or she is involved in an accident with another vehicle whose operator was negligent, and who has no insurance, or who is insured, but only for relatively low liability limits, in comparison to the policyholder (see 11 NYCRR 60-2.1 [a]). Thus, the regulations lump underinsured and uninsured situations together under the SUM umbrella.

According to 11 NYCRR 60-2.3, the prescribed SUM endorsement includes the mandatory uninsured motorist coverage required by Insurance Law § 3420 (f) (1). If the policyholder elects not to purchase the additional, optional coverage, then the insurer must issue, rather than the prescribed SUM endorsement, the mandatory uninsured motorists endorsement prescribed by the Motor Vehicle Accident Indemnification Corporation (MVAIC) and approved by the Superintendent of Insurance (see 11 NYCRR 60-2.3 [d], [e]). If the optional coverage is purchased, then the prescribed SUM endorsement set forth in Regulation 35-D must be used (see 11 NYCRR 60-2.3 [f]).

Among other things, the prescribed endorsement must define the term “uninsured motor vehicle” in such a way that it includes, inter alia, a vehicle that has no insurance coverage at{**36 AD3d at 103} all, as well as one that is covered, but in an amount less than the third-party limit of the policyholder’s contract (see 11 NYCRR 60-2.3 [f]).

There are three prescribed exclusions. The third provides that SUM coverage will [*8]not apply “for non-economic loss, resulting from bodily injury to an insured and arising from an accident in New York State, unless the insured has sustained serious injury as defined in Section 5102 (d) of the New York Insurance Law.” (11 NYCRR 60-2.3 [f].)

Thus, Regulation 35-D appears to mandate, as State Farm contends, that an insured sustain a serious injury in order to recover under the optional SUM endorsement.

III

The Supreme Court correctly struck State Farm’s defense of lack of serious injury.

As observed by the trial courts that have addressed this issue, in the Insurance Law, the Legislature made a point of imposing the serious injury threshold requirement in section 3420 (f) (1), which governs mandatory, uninsured motorists coverage, and involves claims against the funds administered by MVAIC. The Legislature omitted that threshold from the ensuing section, section 3420 (f) (2), which governs the optional coverage an insured may, for an additional premium, purchase from his or her insurer. The omission of the serious injury threshold requirement in section 3420 (f) (2) means that State Farm’s defense in this case of lack of serious injury is legally irrelevant.

Having imposed the threshold requirement in the other contexts outlined above, the Legislature surely could have imposed it in situations such as the one presented here. There is no reason to engraft a threshold requirement at bar, not only because that is a legislative prerogative, but also because the policies the threshold requirement reflects in the no-fault and uninsured vehicle situations are not implicated here. The plaintiff paid an additional premium to his insurer for supplementary protection that would be triggered in the event he was injured in an accident with a driver who was insured in compliance with New York law, but allegedly not enough. Following the insurer’s objection to payment once that situation unfortunately arose, the insured now is pursuing a contract claim against his insurer for benefits the insurer allegedly promised to pay in exchange for the additional premium. The no-fault scheme’s concern with filtering a class of tort claims out of the{**36 AD3d at 104} court system is not implicated here. Nor is the mandatory uninsured motorist scheme’s concern with equalizing the respective positions of claimants injured by uninsured and those injured by properly insured motorists.

In many instances, the issue presented in this case probably will not arise because the underlying personal injury matter will involve a serious injury. But that will not always necessarily be the case. Here, for example, Seleznev’s insurer may have tendered his $25,000 policy limit to settle the plaintiff’s claim because the plaintiff sustained a serious injury (although that issue does not appear to have been litigated), or simply because, regardless of the serious injury issue, the insurer simply chose to avoid the cost of litigation. In the latter situation, when the injured party then proceeds against his or her own insurer for underinsurance protection that he or she has opted to bargain and pay for, and he or she has paid for, there is no reason to impose a serious injury requirement.

To the extent Regulation 35-D imposes such a threshold in the underinsurance context, it would appear unauthorized, and this Court need not follow it. As the Court of Appeals noted in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451, 459 [1980]):

“Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual [*9]data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. If its interpretation is not irrational or unreasonable, it will be upheld . . . Where, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (citations omitted).

Here, the exclusion mandated by 11 NYCRR 60-2.3 (f), concerning compensation for pain and suffering when there is no serious injury, finds no support in Insurance Law § 3420 (f) (2). As noted, the Legislature certainly knew how to add such provision,{**36 AD3d at 105} as it did so in the immediately preceding subdivision (f) (1).

One could then argue that if the regulation is disregarded as not reflective of legislative intent, then the serious injury threshold, while not mandated by law, nevertheless may be imposed by contract. However, Insurance Law § 3420 (a) provides, in relevant part, that “[n]o policy or contract insuring against liability for injury to person . . . shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions which are equally or more favorable to the insured” (emphasis added). Thereafter, the statute lists various “standard” provisions, including, inter alia, the uninsured motorists and SUM provisions described above.

Thus, a contract provision imposing a serious injury threshold requirement in the underinsurance context is less favorable to the insured than section 3420 (f) (2) and should not be given effect. Accordingly, State Farm’s contention that the parties’ contract contained a serious injury threshold applicable here is of no avail.

IV

In conclusion, State Farm’s fifth affirmative defense properly was stricken, as the plaintiff was not required to demonstrate a serious injury, within the meaning of Insurance Law § 5102 (d) in his contract action against his insurer to recover benefits under the optional, underinsurance endorsement of his insurance policy. Accordingly, on the Court’s own motion the notice of appeal from a decision of the Supreme Court, Kings County, dated May 4, 2005, is deemed a premature notice of appeal from the order dated June 30, 2005 (see CPLR 5520 [c]), and the order is affirmed.

Luciano, Lifson and Covello, JJ., concur.

Ordered that on the Court’s own motion, the notice of appeal from a decision of the Supreme Court, Kings County, dated May 4, 2005 is deemed a premature notice of appeal from the order dated June 30, 2005 (see CPLR 5520 [c]); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 25, 2006, affirmed, with $10 costs.

Plaintiff health care provider established a prima facie entitlement to summary judgment by submitting “evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Plaintiff sufficiently described a standard office procedure designed to ensured that the claims forms were properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). In opposition, defendant failed to raise any triable issues of fact.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered May 17, 2006, which denied its motion to vacate the notice of trial and statement of readiness.

PER CURIAM:

Order (Fernando Tapia, J.), entered May 17, 2006, affirmed, with $10 costs.

In this action seeking recovery of no-fault benefits totaling $1,118.58, the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

District Court of Nassau County, Third District

3901/04

Bonnie P. Chaikin, J.

In this action for recovery of assigned first party no-fault benefits, plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment in its favor against the defendant. For the reasons set forth below, the motion is granted.

In this type of action, plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g][3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]; A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 781 NYS2d 818 [S Ct NY App Term 2004]).

In this case, it is undisputed that the bill for an MRI in the sum of $879.73 was received by the defendant on May 24, 2004, and that the denial was dated November 1, 2004. (See NF-10 annexed to the moving papers.) Thus, plaintiff has established its prima facie entitlement to summary judgement in its favor.

Once the movant demonstrates a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact that would require a plenary trial of

the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In opposition to this motion, defendant alleges that the claim was denied because it arose from a staged event. It supports this allegation with an attorney’s affirmation, an affidavit by Allstate special investigator Susan Denicola, as well as copies of the EUO transcripts of the assignor and her passenger in the vehicle at the time of the accident.

It is now well established that an untimely denial of claim will not preclude a lack of [*2]coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 659 NYS2d 246 [1997]). However, the insurer must do more than simply allege that it has a well founded belief. As the Court explained in Mount Sinai v Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 (2d Dept 1999), the burden is on the insurer “to come forward with proof in admissible form to establish the fact’ or the evidentiary found[ation for its] belief. Applying these principles to the case at bar, it is clear that the burden is on Allstate to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the instant claim arose from a staged incident rather than a covered accident. Based upon the documents submitted, defendant fails in this regard.

The sworn statement of special investigator Denicola alludes to “information … acquired

that indicates the possibility that the accident was intentionally caused to defraud insurance companies, in general, and Allstate, in particular”, but Investigator Denicola fails to reveals such information.She relies wholly upon the EUOs annexed to the opposition papers, pointing to their inconsistencies and alleged deficiencies.

The court has read both EUOs and is not persuaded that they support a finding that the accident at issue was a staged incident.

Accordingly, the court finds that defendant has failed to come forward with proof in admissible form to show either a staged event or raise a material issue of fact that would necessitate a denial of this motion. There being no triable issues of fact regarding the defendant’s failure to pay or properly deny plaintiff’s claim within thirty days of receipt of said claim, summary judgment is granted in favor of the plaintiff.

The plaintiff is awarded the sum of $879.73, together with interest at the statutory rate of 2% per month from June 24, 2004, plus attorneys fees equal to 20% thereof, not to exceed $850.00. [Insurance Law §5106(a); 11 NYCRR §65-3.9 (a) and ] and 11 NYCRR §65-4.6(e)].

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

____________________________

District Court Judge

Dated:October 13, 2006

cc:Israel, Israel & Purdy, LLP

Stern & Montana, LLP

Civil Court of the City of New York, Kings County

121948/2005

Genine D. Edwards, J.

In this action to recover No-Fault benefits, statutory interest and attorney’s fees, plaintiff makes a motion for summary judgment. Defendant cross-moves for the same relief on the ground that the services allegedly provided by the plaintiff were not medically necessary.

To establish a prima facie case of entitlement to No-Fault benefits the plaintiff must demonstrate that it provided defendant with a claim for services rendered, setting forth the facts and amount of the loss and that the claim was not paid nor denied nor was verification requested. Nyack Hospital v. Metropolitan Property & Casualty Insurance Company 16 AD3d 564 (2nd Dept. 2005); Mary Immaculate Hospital v. Allstate Insurance Company 5 AD3d 742 (2nd Dept. 2004); Careplus Medical Supply Inc. v. General Assurance Company 7 Misc 3d 126(A) (App. Term 9th & 10th Jud. Dists. 2005). If plaintiff’s burden is met then the defendant has the burden of proving that triable issues of fact exist. Montefiore Medical Center v. New York Central Mutual Fire Insurance Company 9 AD3d 354 (2nd Dept. 2004); Liberty Queens Medical, P.C. v. Liberty Mutual Insurance Company, 2002 NY Slip Op. 40420 (U) (App. Term 2nd & 11th Jud. Dists. 2002); A.B. Medical Services PLLC, DAV v. Allstate Insurance Company, 8 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2005). Upon such proof, the plaintiff is obligated to rebut such evidence or risk dismissal. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Insurance Company, 7 [*2]Misc 3d 822 (N.Y.C. Civ. Ct. Kings County 2005); Bedford Park Medical Practice P.C. v. American Transit Insurance Co., 8 Misc 3d 1025(A) (N.Y.C. Civ. Ct. Kings County 2005).

In the instant case, the plaintiff demonstrated its entitlement to no-fault benefits in the amounts of $129.28 and $182.86, via appending the defendant’s denial of claim forms to its motion. King’s Medical Supply Inc. v. Country-Wide Insurance Company, 5 Misc 3d 767 (N.Y.C. Civ. Ct. Kings County 2004); Capri Medical, P.C. v. New York Central Mutual Fire Insurance Company, 11 Misc 3d 1073(A) (N.Y.C. Civ. Ct. Kings County 2006); AT Medical P.C. v. Utica Mutual Insurance Company, 11 Misc 3d 142(A) (App. Term 2nd & 11th Jud. Dists. 2006); A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2004); Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 119 (2nd Dept. 2006). Also, plaintiff’s burden of proof for the claim in the amount of $297.12 was established since the defendant attached its denial of claim form, indicating that it received the claim, to its cross-motion. Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 126(A) (App. Term 2nd & 11th Jud. Dists. 2006); Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co., 12 Misc 3d 130(A) (App. Term 2nd & 11th Jud. Dists. 2006).

With respect to the claim for the amount of $129.28, it is clear and plaintiff agrees that payment was made, albeit late. The query is whether plaintiff is still entitled to attorney’s fees. According to Insurance Law §5106, the plaintiff is entitled to recover attorney’s fees when the claim was denied or overdue. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 (1997); Function Supply v. Progressive Ins. Co., 9 Misc 3d 1123(A) (N.Y.C. Civ. Ct. Queens County 2005).

Now we move to defendant’s cross-motion. It is clear that Kelly Andre’s affidavit established that all of the subject denials were timely served upon the plaintiff. With respect to the claims in the amounts: $297.17 and $182.86, the defendant denied the claims based upon lack of medical necessity. In support of this contention the defendant attached an admissible peer review report that set forth a competent physician opinion. Thus, the defendant sustained its burden of production of a material issue of fact for trial. Triboro Chiropractic and Acupuncture PLLC v. Electric Insurance Company, 2 Misc 3d 135(A) (App. Term 2nd & 11th Jud. Dists. 2004); Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A) (App. Term 9th & 10th Jud. Dists. 2006). However, upon review of the subject bills and the corresponding peer review report, this Court is not persuaded that the defendant is entitled to summary judgment. The presumption of medical necessity that attached to the claim forms has not been rebutted by the defendant’s peer review report. Bedford Park Medical Practice P.C., supra.

Accordingly it is hereby,

Ordered that plaintiff’s summary judgment motion is granted only as to the claim for attorney’s fees for the claim amount of $129.28. Judgment should be entered in favor of the

plaintiff in the amount of $60.00. It is further ordered that defendant’s cross-motion for summary judgment is denied. Issues of fact exist regarding the medical necessity of the claims in the amounts of $297.17 and $182.86.

This constitutes the decision and order of the Court.

Dated: October 12, 2006__________________________________

Genine D. Edwards, J.C.C.

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Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 26, 2006, which permitted plaintiffs to withhold payments for claims that defendants-appellants had made before April 4, 2002 and dismissed plaintiffs’ causes of action for fraud and unjust enrichment regarding payments made before that date insofar as such causes of action were based on defendants’ improper corporate form, and order, same court and Justice, entered March 3, 2006, which denied defendants-appellants’ motion to strike plaintiffs’ affirmative defenses to defendants’ counterclaims insofar as said defenses were based on defendants’ improper corporate form, unanimously affirmed, without costs.

The Insurance Department regulation on claims for personal injury protection benefits (11 NYCRR 65-3.16 [a] [12]) states that “A provider of health care services is not [*2]eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York.” This regulation was initially promulgated to take effect on September 1, 2001, but implementation was stayed by court order until April 4, 2002. Relying on this regulation, the Court of Appeals has held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]), and that “no cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before . . . April 4, 2002” (at 322).

Mallela is dispositive as to plaintiffs’ fraud and unjust enrichment claims. Even if the quoted excerpt was dictum, we would find it highly persuasive. Plaintiffs’ attempt to distinguish Mallela by saying that their claims rest on the common law, not just on section 65-3.16 (a) (12), is unconvincing; in any event, the claims would not be cognizable (see Oxford Health Plans [NY] v BetterCare Health Care Pain Mgt. & Rehab, 305 AD2d 223 [2003]).

With respect to the bills that plaintiffs have not yet paid, the clear import of section 65-3.16 (a) (12) is that as of April 4, 2002, defendants were no longer eligible to be paid, even if they had already performed services. The very word “reimbursement,” used in the regulation, implies that the services had already been provided. Moreover, Mallela involved pre-April 4, 2002 claims, so it would be illogical to read that case as applying only to claims submitted on or after April 4, 2002 (see e.g. Metroscan Imaging P.C. v GEICO Ins. Co., 8 Misc 3d 829, 834 [Civ Ct, Queens County 2005], affd 13 Misc 3d 35 [App Term 2006]).

We do not find this allegedly retroactive application of the regulation problematic. “Ameliorative or remedial legislation . . . should be given retroactive effect in order to effectuate its beneficial purpose” (Matter of Marino S., 100 NY2d 361, 370-371 [2003], cert denied 540 US 1059 [2003]). The purpose of the regulations of which section 65-3.16 (a) (12) is a part was to combat fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862 [2003]). Indeed, the notice of adoption stated that “The Insurance Department is taking this action in order to implement a new regulation which will ensure that the public receives the benefits of reduced fraud and abuse provided by the proposed regulation at the earliest possible moment” (NY Reg, May 9, 2001, at 19).

Contrary to defendants’ argument, we do not find that section 65-3.16 (a) (12) impaired vested rights or created a new right. The law prior to Mallela was unclear, so defendants did not have a vested right to reimbursement (see Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325, 330 [1990]). Because there were decisions going both ways before Mallela, that case did not create a “new” right that had never before existed.

We are not persuaded by defendants-appellants’ claim that the allegedly retroactive application of section 65-3.16 (a) (12) would violate article I, § 10 (1) of the US [*3]Constitution. There was no contract between defendants and plaintiffs; defendants’ right to reimbursement from plaintiffs was purely a creature of regulation, viz., 11 NYCRR 65-3.11. Concur—Buckley, P.J., Mazzarelli, Williams, Gonzalez and Sweeny, JJ. [See 11 Misc 3d 810 (2006).]

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered September 6, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $5,404.38, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claims forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended forms to defendant. Plaintiff’s corporate officer did not state that he actually mailed the claims to the defendant nor did he describe his office’s standard practice or procedure designed to ensure [*2]that items are properly addressed and mailed (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). The certified mail receipts did not prove that the particular claims being sued upon were actually received by defendant (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548). However, defendant’s letters to plaintiff, which were attached to plaintiff’s moving papers, adequately established that defendant received 10 of the 12 claims being sued upon (Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]). We note that we cannot consider the affidavit by plaintiff’s secretary regarding proof of actual mailing since it was improperly introduced for the first time in plaintiff’s reply papers submitted upon the motion for summary judgment (Fischer v Weiland, 241 AD2d 439 [1997]). Accordingly, plaintiff shifted the burden to defendant with regard to 10 of the 12 claims.

Since defendant’s opposition to plaintiff’s motion for summary judgment was based entirely on plaintiff’s alleged failure to make out a prima facie case, plaintiff’s motion for summary judgment should have been granted to the extent of awarding partial summary judgment as to the ten claims. Consequently, the matter is remanded to the court below for the calculation of the statutory interest and an assessment of attorney’s fees due on $5,404.38, the amount for which partial summary judgment is granted, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder, and for all further proceedings on the remaining claims for $1,653.32.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Sondra K. Pardes, J.), dated August 30, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by
proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Annexed to plaintiff’s moving papers was defendant’s explanation of benefits form which indicated the date on which the claim was received, thereby adequately establishing that plaintiff sent, and that defendant received, the claim (see Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; Capio [*2]Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]). Thus, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 9th & 10th Jud Dists]).

Because defendant failed to establish that it mailed a timely denial of claim form to plaintiff (see 11 NYCRR 65-3.8 [c]), it is precluded from raising the proffered defense of lack of medical necessity (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U], supra). As a result, plaintiff’s motion for summary judgment should have been granted. Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006

District Court of Suffolk County, Third District

HUC 1104-05

Edward Shapiro, P.C.

Attorney for Plaintiff

3351 Park Avenue

Wantagh, NY 11793

Robert P. Tusa, Esq.

Attorney for Defendant

898 Veterans Memorial Highway

Suite 320

Hauppauge, NY 11788

C. Stephen Hackeling, J.

After submission of stipulated facts by the parties , Dependable Ambulette, Inc., (hereafter “Dependable”) seeks to recover the sums of $2,015, $1,755, $975, $1,040, for transportation services rendered after April 5, 2002, upon automobile insurance policies issued prior thereto which contained assignability clauses. Dependable, the assignee herein, argues that the NYS Insurance Commissioner’s April 5, 2002 amendment to Art. 68, did not terminate existing policy endorsements but simply required all future insurance policies issued or renewed after April 5, 2002 to contain new endorsements prohibiting assignment of claims. In support of this decision, the plaintiff advances the unreported decision of Dependable Ambulette, Inc. V. Allstate Insurance Co., June 2, 2004, No. 0032/04 (Nassau Co. Dist. Ct. 2004) which holds that revised Insurance Department Regulation 68 can not be retroactively applied to claims made upon policies existing pre April 5, 2002.

This Court is sympathetic to Judge Janowitz’s legal reasoning in creating an “existing policy” exception to the Regulation 68 amendment which barred assignability of ambulance transportation services. However, the Appellate Courts appear to have subsequently clearly settled this controversy. The Second Department, citing to the Court of Appeals,

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unequivocally upheld the dismissal of a post April 5, 2002 transportation no-fault insurance claim. See A B Medical Services PLLC, v. Motor Vehicle Acc. Indemnificatin Corp., 10 Misc 3d 145A (App. Term, 2nd Dept. 206) citing to Medical Society of State of New York v. Serio, 100 NY2d 854 (NY 2003). Though the Second Department and the underlying Appellate Term decision do not address the issue of an pre-existing April 5, 2005 policy endorsement; they expressly hold that the claims were properly dismissed as ” the plaintiffs therein… submitted its transportation copies subsequent to April 5, 2002 regulation… which no longer permit the assignment”. This holding does not appear to grant this Court license to find an exception to the established rule.

The Court notes that the “no-fault”automobile insurance system (NY Ins. Laws Art. 51) is a statutory creature which the legislature has given the Insurance Commissioner broad discretion to regulate. The rights running to the benefit of claimants are principally established via statute and regulation and only secondarily by endorsements made by the insurance carriers. The rights of the insurance carriers and their policy holders do not exist independently of the “no-fault” insurance system and can not be considered in any manner which is inconsistent to the regulations’ intent and purpose. The April 5, 2002 amendment properly voided any existing policy assignment language as “contrary to public policy”. See Medical Society of State of New York v. Serio, 100 NY2d 854 (2003)

Accordingly, the Court dismisses the plaintiff’s complaint.

_____________________________

J.D.C.

Dated: October 3, 2006

Huntington Sta., NY

Decision to be published ____yes___no.

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SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 16, 2005, deemed an appeal from a judgment of the same court entered May 16, 2006 (see CPLR 5501 [c]). The judgment, which awarded plaintiff the sum of $4,518.30, was entered pursuant to the order entered September 16, 2005 which, upon reargument, adhered to the prior determination granting plaintiff’s motion for summary judgment.

Judgment reversed without costs, order entered September 16, 2005 vacated and, upon reargument, plaintiff’s motion for summary judgment denied.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, facts set forth in an attorney’s affirmation are of no probative value absent the attorney’s assertion of a basis for his or her personal knowledge of the facts (Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim forms were admissible under the business records exception to the hearsay rule (see CPLR 4518; see also People v Kennedy, 68 NY2d 569 [*2][1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of plaintiff, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of plaintiff’s counsel’s apparent lack of personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; People v Kennedy, 68 NY2d 569, supra; Zuckerman v City of New York, 49 NY2d 557, supra; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Stahl v Stralberg, 287 AD2d 613 [2001]).

We note that even if plaintiff had established a prima facie case, in the instant matter, defendant’s opposition to plaintiff’s motion for summary judgment amply demonstrated the existence of a triable issue of fact as to whether “the alleged injur[ies] do[] not arise out of an insured incident,” a defense which may be raised for the first time in opposition to plaintiff’s motion for summary judgment (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, upon reargument, the court should have denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557, supra).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.