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, Queens County (Charles John Markey, J.), entered on March 3, 2005. The order, insofar as appeal from as limited by plaintiff’s brief, denied plaintiff’s motion for summary judgment seeking to recover the sum of $1,856.42.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment in the sum of $1,856.42 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 health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment, which, on appeal, plaintiff has limited to the sum of $1,856.42 (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]). In opposition, defendant argued that it properly denied the claim for $731.04 because the fees were not in accordance with the Workers’ Compensation fee schedules due to the fact that the treatment rendered constituted “concurrent care.” Defendant further argued that the remaining claims, which totaled $1,125.38, were properly denied based upon the assignor’s failure to attend independent medical examinations (IMEs).

Plaintiff was entitled to summary judgment upon the $731.04 claim as defendant failed to proffer sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact pertaining to this claim (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). With respect to the claims which totaled $1,125.38, where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in [*2]admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen
Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). While defendant timely denied claims based on the nonattendance of plaintiff’s assignor at the pre-claim IMEs, defendant failed to submit proof in admissible form of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) and defendant did not create a presumption of mailing by submission of an affidavit describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the assignor’s failure to attend the pre-claim IMEs did not raise an issue of fact warranting the denial of plaintiff’s motion for summary judgment (see Ocean Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, summary judgment is granted in favor of plaintiff in the sum of $1,856.42, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 14, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendants appeal from so much of an order of the Civil Court, Bronx County (Larry Schachner, J.), entered January 31, 2005, as denied their motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Larry Schachner, J.), entered January 31, 2005, insofar as appealed from, reversed, without costs, and defendants’ motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first party no-fault benefits, the defendant insurers established their entitlement to summary judgment dismissing the complaint. Defendants timely denied the claims in the amounts of $818.89, $620.97 and $1,060.01 on the stated ground that plaintiff’s assignors did not respond to their requests for statements regarding the accident and medical treatment. Since it is uncontroverted on this record that plaintiff’s assignors did not comply with defendants’ repeated requests for statements, defendants’ motion for summary judgment dismissing the causes of action pertaining to the foregoing claims should have been granted (see 11 NYCRR 65.1-1 [d]; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Defendants are also entitled to summary judgment dismissing the remaining claims in the amounts of $793.24 and $604.34 on the ground of non-receipt of said claims, inasmuch as plaintiff’s submissions in opposition were insufficient to raise triable issues of fact.

This constitutes the decision and order of the court.
Decision Date: September 13, 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 (Howard S. Miller, J.), dated September 26, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action. Plaintiff appeals from so much of the order as denied its motion for summary judgment. Plaintiff’s motion for summary judgment was properly denied because plaintiff’s submission of inconsistent affidavits from its treating physician raised a triable issue of fact (see generally Amaze Med. Supply Inc. v Eagle Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50389[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: August 22, 2006

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, Queens County (Joseph Esposito, J.), entered June 17, 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 an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider generally establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the [*2]
loss 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A provider establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. In the instant case, the lower court properly found that plaintiff’s moving papers were insufficient to demonstrate that any of the claim forms were properly mailed. However, said deficiency was cured by defendant’s acknowledgment of receipt in its denial of claim forms (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]) and by the admissions of the claims’ receipt in the affidavits of defendant’s claims adjusters. Accordingly, plaintiff established a prima facie case, and the burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to the determination of the court below, defendant failed to establish that the denial of claim forms were timely mailed to plaintiff. The affidavits of defendant’s claims adjusters merely stated that the claims were timely denied without asserting personal knowledge of the mailing or setting forth sufficient facts to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). Accordingly, since defendant failed to demonstrate that it denied the claims within the 30-day prescribed period following their receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]), it was precluded from raising its defenses, with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; 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]).

We need not reach the issue of whether the letters which stated that payment of benefits was being delayed pending receipt of hospital/physician records were, in effect, verification requests since defendant’s acknowledged receipt of the information recommenced the running of the 30-day claim determination period. Since defendant failed to submit adequate proof of having mailed the claim denials within that period, it did not meet its burden of raising a triable issue of fact.

In view of the foregoing, the court below erred in denying plaintiff’s motion for summary judgment. Accordingly, the order is reversed, plaintiff’s motion for summary [*3]
judgment granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I am constantly amazed by the continued failure of defendants to obtain and submit affidavits by someone with personal knowledge in order to establish sufficient proof of mailing of documents such as denials (NF-10), verifications, requests for independent medical examinations, etc.

Nevertheless, I wish to note that I do not agree with certain propositions of law set forth in cases cited by the majority which are inconsistent with my prior expressed positions and generally contrary to my views.

I further wish to note that I would find that the letters sent to plaintiff herein denoted as “delay letters” should serve to toll the 30-day claim determination period. They are, in fact, verification requests irrespective of terminology, indeed at the very least they are a functional equivalent of a verification request.

In support of this finding, I cite the majority opinion in the case of Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists]). Whereas I filed a concurrence in that case and did not reach the issue at hand, the case held that even if a document is labeled a verification request, it will not serve to toll the 30-day period if it merely informs that the claim is delayed pending an investigation but fails to specify the particular information sought.

The “delay letters” in the case at bar not only informed the plaintiff that payment of the claim was being delayed, but also specifically set forth the particular information sought, to wit: the hospital/physician records. Clearly these “delay letters” must serve as a verification request inasmuch as the plaintiff was well aware of what information was required to complete the claims filed. They therefore serve the same purpose. For me, this is a matter of substance over form.

I point to plaintiff’s counsel’s assertion in his moving papers that this information should have been requested from the prescribing physician and not from the plaintiff herein which does not maintain or have direct access to a medical file. Given that assertion, plaintiff has effectively acknowledged that the defendant must seek the requested information from a different source. That is exactly what the defendant herein did.

Decision Date: August 18, 2006

Supreme Court, New York County

105241/06

Eileen Bransten, J.

Pursuant to CPLR 7502 and 7503, Allstate Insurance Company (“Allstate”) petitions for a Judgment, among other things, staying an arbitration commenced by respondent Sallie Merrick (“Ms. Merrick”).

Background

By Denial of Claim form dated September 27, 1996, Allstate informed Ms. Merrick that “all no-fault claims benefits will be denied effective 10/04/96.” Affirmation in Support (“Supp.”), Ex. B.

Ms. Merrick contends that in April 2002, “within the six-year period of the statute of limitations,” she “properly commenced” an arbitration before the American Arbitration Association (“AAA”), contesting Allstate’s denial of no-fault benefits. Affirmation in Opposition (“Opp.”), at ¶ 3. In May 2002, Ms. Merrick provided additional information responsive to an inquiry from AAA.

On January 9, 2003, after receiving no further communications, a paralegal for Ms. Merrick’s counsel contacted AAA to ascertain a date for arbitration proceedings. The paralegal swears that AAA advised her that “they were unable to locate the file” and that an Arbitration Request Form and check for $40 should be resubmitted. Opp., Ex. C, at ¶ 7. That very day, the paralegal resubmitted the materials. Id.

Again, the paralegal contacted AAA inquiring about the status of Ms. Merrick’s arbitration. She “continued to call every six months and received the same response that [Ms. Merrick] would be hearing by way of a letter indicating the name of the Arbitrator and the date of the arbitration.” Opp., Ex. C, at ¶ 8. After “many calls,” the paralegal was advised to resubmit yet another set of papers. Id., at ¶ 9. On February 17, 2005, Ms. [*2]Merrick’s attorney forwarded the papers to AAA, along with a new check and a letter indicating that “the enclosed request was previously submitted.” Opp., Ex. E. AAA returned the arbitration request because it was incomplete. Opp., Ex. F.

AAA received additional papers on June 8, 2005. Supplemental Affirmation from Allstate (“Allstate Aff.”), Ex. A. On June 15, 2005, AAA confirmed “acceptance of an arbitration request.” Id.

On September 19, 2005, in response to an email from the AAA no-fault conciliator assigned to the matter informing Allstate that there was “no record of receiving a submission from Allstate to date,” a Staff Claim Adjuster explained that the company had “no notice of this arbitration * * * This case has never been assigned we never [received AAA] notice.” Allstate Aff., Ex. A. That very day, the conciliator offered to forward Allstate a copy of the filings and notices. Id.

Subsequently, in a September-26-2005 email to the AAA no-fault conciliator, an Allstate Senior Staff Claim Service Representative noted that the file on the claim was old and stated: “I would suspect that there are some statute of limitations applicable here.” Allstate Aff., Ex. C. (There is no indication that Ms. Merrick’s attorney received a copy of the email.)

On October 19, 2005, counsel for Ms. Merrick and Allstate were informed that an arbitrator had been appointed and that a hearing was scheduled for November 22, 2005. Supplementary Affirmation in Opposition (“Supp. Opp.”), Ex. A. Counsel were advised to “attend promptly with * * * witnesses and be prepared to present * * * proofs.” Id. A few days before the hearing, on November 17, 2005, attorney Peter C. Merani wrote the AAA case manager assigned to Ms. Merrick’s claim, advising that “the above captioned matter has been assigned to our office to appear as counsel to the insurer in the pending No-Fault arbitration. Please note your files accordingly, advise us of all scheduled hearing dates, adjourned dates, direct all correspondences and awards to our offices.” Supp. Opp., Ex. B.

Proceedings were conducted on November 22, 2005. “Briefs were submitted and testimony was taken on that day.” Opp., at ¶ 10. Attorney Sammy Lesman, an associate in the office of Peter C. Merani, Esq., delivered an opening statement and cross-examined Ms. Merrick. Supp. Opp., at ¶ 6. After “oral testimony was declared closed” by the arbitrator, Mr. Lesman requested to respond by producing Allstate’s No-Fault records regarding Ms. Merrick’s claim. Id., at ¶ 7. On November 25, 2005, Mr. Lesman sent “a copy of [Allstate’s] submissions for the No-Fault Matter” to the AAA, requesting that the materials be forwarded to the assigned arbitrator. Allstate’s counsel made no mention of any statute of limitations defense at the hearing or in its post-hearing submissions. Opp., at ¶ 10; Supp. Opp., at ¶ 9.In late February, the Arbitrator requested production of Ms. Merrick’s 1996-1997 tax returns and proof that she did not work following the accident. [*3]Opp., at ¶ 11; Supp. Opp., at ¶ 11. Ms. Merrick’s attorney submitted the materials to AAA and Allstate’s counsel on March 3, 2006. Opp., at ¶’11. On March 10, 2006, Ms. Merrick’s attorney was notified that a further hearing was scheduled for April 18, 2006. Id. He was subsequently advised, however, that the April 18, 2006 hearing was cancelled and “that there would be a decision fairly soon.” Opp., at ¶ 11.

On April 17, 2006, Allstate commenced this proceeding, seeking a Judgment staying Ms. Merrick’s arbitration on the ground that more than six years passed since denial of no-fault benefits. Supp., at ¶ 6. Allstate contends that a “review of the Arbitration Request[] Forms of Sallie Merrick stamped by [AAA] as found on their website adr.org, and in her submission shows that the earliest possible receipt date of her application is February 22, 2005,” which is beyond the statute of limitations. Supp., at ¶ 5. Allstate also requests an Order “staying the enforcement of any judgment” entered in accordance with the arbitration. Order to Show Cause, at 2; Supp., at ¶ 7.

The following day, “an attorney from the Law Offices of Peter C. Merani appeared on behalf of [Allstate] for the hearing on April 18, 2006.” Reply, at ¶ 9. Ms. Merrick’s counsel, believing that the session had been canceled, did not appear. Supp. Opp., at ¶ 12.

On April 19, 2006, Ms. Merrick’s attorney received Allstate’s Verified Petition. Supp. Opp., at ¶ 13. Ms. Merrick strongly opposes Allstate’s application. She urges that she should not be prejudiced simply because her submissions were misfiled once in 2002, and again in 2003. Opp., at ¶ 14. Ms. Merrick points out that the initial April 2002 arbitration request was sent to Allstate’s counsel; thus, Allstate had notice of the dispute and the AAA filing within the statute of limitations.

Analysis

Because Allstate participated in the arbitration proceeding—Allstate’s counsel made an opening statement, cross-examined Ms. Merrick and submitted evidence—it waived its rights to seek a judicial stay. CPLR 7503(b) provides that “a party who has not participated in the arbitration * * * may apply to stay arbitration on the ground that * * * the claim sought to be arbitrated is barred” by the statute of limitations applicable to the same causes of action under New York law. See also, Matter of Civil Service Employees Assn. [County of Erie], 303 AD2d 1050, 1051 (4th Dept. 2003) (“participation in the arbitration constituted a waiver of any right * * * to raise a statute of limitations defense in court or obtain a stay of arbitration on statute of limitations grounds”); Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7503:2 (“participation in the arbitration will constitute a waiver of the right to seek a judicial stay and thus foreclose raising, in court, threshold defenses relating to arbitrability and the statute of limitations. The opponent’s participation in arbitration is deemed inconsistent with his position that the dispute is nonarbitrable”); Siegel, NY Prac. § 592, [*4]at 1043 (4th ed.).

Allstate argues that because Ms. Merrick did not comply with the provisions of CPLR 7503(c), which provides that a “party may serve upon another party a demand for arbitration or notice of intention to arbitrate” that must be served in a particular manner and must set forth specified information, it is still free to seek a stay notwithstanding its participation. Allstate is wrong.

CPLR 7503(c) affords a party desirous of arbitrating a claim with a mechanism to impose a very short and strict 20-day deadline for challenging arbitrability, including raising the argument that arbitration is time barred. Within 20 days of proper service of a valid CPLR 7503(c) notice or demand, a party seeking to avoid arbitration on statute-of-limitations grounds must apply to stay arbitration or suffer the consequences of being precluded from raising the argument in court at any time—before or after the arbitration—regardless of whether the party actually participates in the proceedings. See, CPLR 7503(c); CPLR 7511(b)(2)(iv).

In contrast, when, as here, there has been no CPLR 7503(c) notice or demand to arbitrate, there is no strict 20-day limit for applying to stay arbitration and a party that did not participate in the proceedings retains the right to challenge the award because the arbitrated claim was time barred. CPLR 7503(c), however, does not in any way nullify the rule that a participant in the arbitration cannot subsequently seek a judicial stay based on passage of the statute of limitations.

That Allstate informed the AAA in an informal email that it suspected “there are some statute of limitations” issues, is equally unavailing. To obtain a judicial stay on statute-of-limitations grounds, Allstate was required to commence a special proceeding before participating in the arbitration. It cannot make arguments before the arbitrator, conduct cross-examination and submit evidence—costing all of the parties time and money—and then, for the first time, argue to the Court that the matter should never have gone to arbitration in the first place because the claim is time barred.

Accordingly, it is

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.

This constitutes the Decision, Order and Judgment of the Court.

Dated: New York, New York

August 17, 2006

E N T E R

[*5]

Hon. Eileen Bransten

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, Queens County (Joseph Esposito, J.), entered May 26, 2005. The order granted plaintiff partial summary judgment in the principal sum of $4,671.57 and denied defendant’s cross motion for summary judgment dismissing the action.

Order affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, since defendant admitted that it received the five claim forms at issue, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, and in support of its cross motion for summary judgment, defendant asserted that it timely denied plaintiff’s claim which sought to recover the sum of $1,968.36 based upon a sufficiently detailed affirmed peer review annexed to defendant’s denial of claim form. The affidavit submitted by defendant’s no-fault specialist was sufficient to [*2]establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). As a result, both plaintiff’s motion and defendant’s cross motion for summary judgment upon this claim were properly denied.

However, defendant’s assertion that the plaintiff’s motion for summary judgment upon its claims for $390.85, $2,290, $205.77, and $1,784.95 should have also been
denied lacks merit. The affidavit executed by defendant’s no-fault specialist was insufficient to prove actual mailing of the verification requests or to create a presumption of mailing (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). In light of defendant’s failure to establish the mailing of its verification requests, defendant did not establish that the 30-day claim determination period was tolled. As a result, defendant was precluded from raising most defenses to the claims for $1,784.95, $205.77, $2,290 and $390.85, with exceptions not relevant herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). Consequently, the court properly granted plaintiff partial summary judgment upon these claims.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum. [*3]

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I note that if defendant’s claim manager had expanded his affidavit by stating that requests for verifications follow the same mailing procedures as denial of claim forms, then it would have been sufficient, at least to me, to establish a timely mailing of the verification demands.
Decision Date: August 15, 2006

[*1]

Supreme Court, Appellate Term, First Department, August 15, 2006

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Baker, Barshay & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**13 Misc 3d at 23} OPINION OF THE COURT

Per Curiam.

Order entered March 18, 2005, reversed, with $10 costs, and the matter remanded for a new trial.

In this action to recover assigned first-party no-fault benefits, the parties stipulated to defendant’s receipt of plaintiff’s no-fault bills, the issuance of a timely denial by defendant, and that the sole defense was the lack of medical necessity for diagnostic computerized range of motion and muscle tests conducted by plaintiff. Defendant’s peer review doctor and trial expert testified that his peer review report and conclusion of lack of medical necessity were based upon a review of the records and reports prepared by plaintiff. Plaintiff moved to preclude the expert’s testimony on the ground that his testimony was based upon medical records not in evidence. The court granted plaintiff’s motion to preclude and directed judgment in favor of plaintiff.

We reverse. Plaintiff’s challenge to the reliability of the medical records and reports relied upon by defendant’s expert is unavailing given the fact that the records were prepared by plaintiff’s own principal, who personally treated the assignor and conducted the tests in question (cf. Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]). In these circumstances, plaintiff may not be heard to argue that defendant’s expert opinion was not derived from a “professional[,] reliable” source or to otherwise challenge the reliability of its own medical records and reports. Moreover, defendant’s expert, in forming his opinion, relied upon the records only to the extent that they documented the assignor’s injuries, plaintiff’s diagnosis [*2]and the treatment rendered.

Davis, J.P., Gangel-Jacob and Schoenfeld, JJ., concur.

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 (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians to the extent of directing all parties to appear for examinations before trial.

Appeal from so much of the order as directed all parties to appear for examinations before trial dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment and defendant cross-moved to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of directing all parties to appear for examinations before trial. Plaintiff failed to submit written opposition to defendant’s cross motion, but instead argued in its reply papers that it was entitled to summary judgment without addressing defendant’s argument that it was entitled to examinations before trial. Since so much of the order as granted [*2]defendant’s cross motion to the extent of directing all parties to appear for examinations before trial was entered on default, the appeal therefrom by plaintiff, a defaulting party, must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]).

A provider 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]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the post office ledger annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Moreover, plaintiff’s attorney’s affirmation was based on allegations by a person without personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the denial of claim form annexed to plaintiff’s moving papers was insufficient to establish that plaintiff sent, and that defendant received, the claim since the denial of claim form indicated that defendant received a claim for the sum of $1,922 from plaintiff and the bill annexed to plaintiff’s moving papers was for the sum of $1,804.50 (cf. A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment. Accordingly, the lower court properly denied plaintiff’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: August 14, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from so much of an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered September 28, 2005, as denied its cross motion for summary judgment dismissing the complaint, or, in the alternative, to compel discovery.

PER CURIAM:

Order (Eileen A. Rakower, J.), entered September 28, 2005, modified (1) to dismiss the third and fourth causes of action pertaining to assignor Ramon Albino, and (2) to direct plaintiff to provide verified responses to questions 6-9, and 23 of the interrogatories, to respond to items 4-6, 8-9, 16, and 29-30 of defendant’s demand for discovery and inspection, and to comply with defendant’s notice of examination before trial requesting the deposition of Dr. Rafael; as so modified, affirmed, with $10 costs.

Defendant’s cross motion for summary judgment should have been granted to the extent of dismissing the third and fourth causes of action seeking no-fault benefits in the sum of $2,016.27 as to assignor Ramon Albino. It is undisputed on this record that the no-fault claims with respect to Albino were submitted to arbitration prior to the commencement of the action herein. By electing to arbitrate, plaintiff waived its right to commence an action to litigate any no-fault claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]).

Civil Court properly denied that branch of defendant’s cross motion which sought dismissal of the causes of action pertaining to assignors Odilis Garcia and Gilberto Hernandez. Defendant waived the affirmative defense of a “prior action pending” with regard to assignor Garcia by failing to raise the defense in its answer or in a pre-answer motion to dismiss (see CPLR 3211 (e); Charlton v United States Fire Ins. Co., 223 AD2d 404 [1996]). While defendant’s documentary submissions are sufficient to raise issues of fact with respect to its defenses that plaintiff is a fraudulently licensed corporation and that the medical services were provided by an independent contractor, they are insufficient to warrant judgment as a matter of law on these issues. [*2]

Defendant is entitled to discovery insofar as relevant to the foregoing defenses, as above indicated. This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: August 10, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), dated April 4, 2005, which denied its cross motion to compel discovery and granted plaintiff’s motion for a protective order.

PER CURIAM:

Order (Sharon A.M. Aarons, J.), dated April 4, 2005, modified to direct plaintiff to fully respond to item 10 of defendant’s demand for discovery and inspection and to comply with defendant’s amended notice of examination before trial, and as modified, affirmed, with $10 costs.

Item 10 of defendant’s demand for discovery and inspection, which calls for information pertaining to the employment status of the treating health provider, is relevant to the issue of whether the medical services were performed by an independent contractor (see 11 NYCRR 65-3.11 [a]). Plaintiff only submitted a partial response to item 10 of defendant’s demand and is accordingly directed to fully comply therewith. Plaintiff is also directed to comply with the defendant’s amended notice of examination before trial, requesting the depositions of Dr. Dipak Nandi, plaintiff’s president, and of Nan Ni Gilbert, Lic. Ac., the treating provider, as their testimony bears directly upon the foregoing defense.

Plaintiff’s motion for a protective order with regard to defendant’s remaining discovery demands was properly granted even if the motion was not timely made, as the disclosure sought was palpably improper because it was duplicative (see Matter of Williamson, 261 AD2d 147 [1999]), unduly burdensome (see Albert v Time Warner Cable, 255 AD2d 248 [1998]), irrelevant (Duhe v Midence, 1 AD3d 279 [2003]), and pertained to defenses not at issue in this case. Finally, while an insurer may delay payment of a claim to investigate whether a professional corporation was fraudulently incorporated, defendant has failed to meet the threshold requirement of “good cause” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and thus is not entitled to disclosure pertaining to such defense. [*2]

This constitutes the decision and order of the court.

Decision Date: August 02, 2006