[*1]

Supreme Court, Appellate Term, Second Department, June 30, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent.

{**12 Misc 3d at 86} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In support of its motion for summary judgment, plaintiff annexed an affidavit of one of its corporate officers. In said affidavit, plaintiff’s corporate officer did not specifically state that he mailed the claims, but rather, stated that proof that he mailed the claims was annexed. However, since no such proof was annexed, plaintiff did not establish that he actually mailed the claims. In addition, there was no admission by defendant acknowledging the receipt of the claims. While plaintiff subsequently submitted a document entitled “Submission by Stipulation of the Parties and Court,” which stated that the parties agreed that the letters annexed thereto from defendant established defendant’s receipt of the claims, said document is not enforceable as it was not signed by the defendant (see CPLR 2104). Since plaintiff failed to establish by competent proof that the claim forms were mailed to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff’s motion for summary judgment was properly denied. [*2]

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

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 May 9, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon completion of discovery and granted defendant’s cross motion to compel discovery.

Appeal from so much of the order as granted defendant’s cross motion to compel discovery dismissed.

Order, insofar as reviewed, modified by providing that plaintiff’s motion for summary judgment is denied and by striking the provision thereof granting plaintiff leave to renew said motion; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms to defendant (see 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]). Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]), neither of which was demonstrated in the instant case (see generally New York & Presbyt. Hosp. v Allstate Ins. [*2]Co., ___ AD3d ___, 2006 NY Slip Op 03558). Plaintiff’s submissions in support of its motion, consisting of an affirmation of counsel without personal knowledge that the claim forms were actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), accompanied by an affidavit of a corporate officer of plaintiff provider, which made no specific reference to the appended claim forms or to proof of mailing, but which merely stated that his file included the original proof of mailing, were insufficient to establish submission of the claim forms (see Dr. Patil, M.D. v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]). Moreover, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its reply affirmation a denial of claim form indicating that a claim was received by defendant is of no relevance since the denial form is not specifically referable to any of the instant claims. Under the circumstances, plaintiff’s motion for summary judgment should have been denied on the merits.

With respect to that branch of the order which granted defendant’s cross motion to compel discovery, since plaintiff failed to submit written opposition to the cross motion, said branch of the order is deemed to have been granted on default and the appeal therefrom by plaintiff, the defaulting party, must be dismissed (CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 29, 2006

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 17, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 17, 2006), reversed, with $10 costs, motion denied, and matter remanded to Civil Court for further proceedings.

An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15[g][1][I]; 2[iii]; Elite Chiropractic Servs., PC v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op. 51735[U] [2005]). While plaintiff states that it responded to defendant’s verification request, no presumption of mailing was created because the affidavit of plaintiff’s representative neither stated that she actually mailed the verifications to defendant nor described plaintiff’s mailing office practice and procedures. Since plaintiff’s submission was insufficient to raise a presumption of receipt (see New York and Presbyterian Hospital v Allstate Ins. Co., AD3d [2006], 2006 NY Slip Op. 03558), its motion for summary judgment should have been denied.

This constitutes the decision and order of the court.
Decision Date: June 29, 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 (Randy Sue Marber, J.), dated September 28, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order reversed without costs, defendant’s motion for summary judgment denied, plaintiff’s cross 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. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, defendant moved for summary judgment dismissing the complaint alleging that the accident was fraudulent. Plaintiff opposed the motion and cross-moved for summary judgment. By order dated September 28, 2005, the court below granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In the court below and on appeal, defendant argues that plaintiff had no standing to bring the instant action since the assignment of benefits forms were defective. However, since defendant did not timely object to the completeness of the forms or seek verification of the assignments, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that defendant untimely denied the claims. However, it is well settled that a defendant is not precluded from asserting the defense that a collision was in furtherance of an insurance fraud scheme, despite its untimely denial (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Contrary to the determination of the court below, we find that the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order of the court below is reversed, defendant’s motion for summary judgment is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 28, 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, Kings County (Eileen Nadelson, J.), entered April 1, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for plaintiff’s failure to prosecute the action and plaintiff cross-moved for summary judgment. By order entered April 1, 2005, the court denied both motions. On appeal, plaintiff contends that it is entitled to summary judgment since defendant’s denial of plaintiff’s claim was untimely and, thus, defendant is precluded from raising its defense of lack of medical necessity.

Contrary to plaintiff’s argument, defendant’s denial of plaintiff’s claim was not untimely. Plaintiff asserted that it first submitted its claim to defendant on May 15, 2002 and, after receiving no response from defendant regarding same, it re-submitted its claim on August 3, 2002. However, the affidavit of plaintiff’s owner failed to establish that plaintiff mailed its claim to defendant on May 15, 2002 by either proof of actual mailing or proof of plaintiff’s standard office practice or procedure which was designed to ensure that items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558 [2d Dept, May 2, 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d [*2]679 [2001]). On its denial of claim form, defendant acknowledged receipt of plaintiff’s claim form on August 7, 2002 (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]) and the affidavit of defendant’s claims representative proved that defendant denied plaintiff’s claim on September 3, 2002 on the ground of lack of medical necessity, based on a peer review report annexed to its denial of claim form. Since plaintiff failed to establish that the denial of claim form was untimely, defendant is not precluded from raising its defense
of lack of medical necessity. Said defense raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and, thus, the lower court properly denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 28, 2006

Supreme Court, Nassau County

018617/05

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P. O. Box 1144

Bellmore, NY 11710

Jaffe & Nohavicka, Esqs.

Attorneys for Defendant

40 Wall Street, 12th Floor

New York, NY 10005

Thomas P. Phelan, J.

Motion by plaintiff Mary Immaculate Hospital, a/a/o Thomas Matamoros (Hospital) for an order pursuant to CPLR 3212 awarding it summary judgment is granted.

Cross-motion by defendant Countrywide Insurance Company (Countrywide) for an order awarding it summary judgment dismissing plaintiff’s complaint is denied.

Plaintiff brings this action pursuant to Insurance Law §5101 et seq. to recover no-fault benefits alleged due under an insurance policy issued by defendant Countrywide for $55,105.27 in medical services provided by plaintiff Hospital (as assignee) to Matamoros (as assignor).

The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626).

The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the [*2]absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062).

However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Alvarez v. Prospect Hosp., 68 NY2d 320).

Plaintiff has submitted prima facie evidence that it served the appropriate no fault billing form and that said claim was not timely paid. Payment by defendant was therefor overdue (Dermatossian v. New York City Transit Authority, 67 NY2d 219, 224; see, New York Hospital Medical Center of Queens v. New York Central Mut. Fire Ins. Co., 8 AD3d 640).

In response, defendant submits sufficient evidence to create an issue of fact over whether defendant timely denied plaintiff’s claim premised upon an alleged exclusion from coverage where the injury to plaintiff’s assignor occurred while “committing an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer” (see Insurance Law §5103(b)(3); 11 NYCRR 65.1-1).

Defendant, however, fails to provide evidence to establish, prima facie, entitlement to application of the alleged exclusion. Notably absent from defendant’s proof is that the permitted exclusion was in fact incorporated into the insurance policy upon which plaintiff brings its claim for no fault recovery.

The subject exclusion, while statutorily permitted and specifically included in the mandatory endorsement promulgated by the Superintendent of Insurance, is not required. “[A]n insurer may, at its option, delete the exclusion and cover the risk” (Servido v. Superintendent of Ins., 53 NY2d 1042, [1981] revg. on dissenting op. 77 AD2d 70, 80-81 [1st Dept., 1980]). Defendant neither alleges nor establishes the specific contents of its policy with plaintiff’s assignor, Matamoros.

Moreover, defendant provides nothing to demonstrate that Mr. Matamoros was, in fact, committing a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer. The affidavit by defendant’s eyewitness establishes only that Matamoros was running at the time of the accident and the Police Accident Report provided by defendant is inadmissible (Holliday v. Hudson Armored Car & Courier Service, Inc., 301 AD2d 392 [1st Dept., 2003]).

Assuming, arguendo, as alleged in the Police Accident Report that “pedestrian [Matamoros] was struck by veh[icle] #1 while trying to flee security at Barnes and Noble” this, nevertheless, does not create an issue of fact regarding the commission of a felony or flight from lawful apprehension or arrest by a law enforcement officer. Mere conclusions and unsubstantiated allegations or assertions are insufficient to defeat summary judgment (Zuckerman v. City of New York, [1980] 49 NY2d 557, 562; Aghabi v. Sebro, 256 AD2d 287 [2nd Dept., 1998]) as are speculation and surmise (Beecher v. Northern Men’s Sauna, 272 AD2d 281 [2nd Dept., 2000]; Lahowin v. Ganley, 265 AD2d 530 [2nd Dept., 1999]).

Accordingly, plaintiff is awarded summary judgment against defendant on its claim for $55,105.27 together with statutory interest from October 15, 2005, statutory attorney’s fees, costs and disbursements.

The Clerk may enter judgment.

This decision constitutes the order of the court.

Dated: JUNE 28, 2006 THOMAS P. PHELAN

J.S.C.

APPEARANCES OF COUNSEL

City Court of Buffalo

CC-15483

David W. Polak, Esq.

Attorney for Claimants

1220 Liberty Building

424 Main Street

Buffalo, New York 14202

Phyliss A. Hafner, Esq.

Attorney for Defendant

3332 Walden Avenue, Suite 100A

Depew, New York 14043

Henry J. Nowak, J.

Background & Jurisdiction

This matter began as a commercial claim before a hearing officer in the small claims part of this court, pursuant to local rule. The first hearing date was adjourned at the consent of both parties, apparently so that defendant Progressive Casualty Insurance Company [hereinafter “Progressive”] could bring a formal written motion for summary judgment. At the next date, Progressive attempted [*2]to argue its formal written motion but was prevented from doing so by the hearing officer. Because both parties were represented by counsel and motion practice is generally discouraged in small claims court, the hearing officer questioned whether the matter should be transferred out of small claims to a regular part of the court pursuant to 22 NYCRR 210.41-a (d). As a result, the hearing officer sent the matter to a judge in the special term part who agreed to hear the matter as a judge sitting in the small claims part.

Claimant Proscan Radiology of Buffalo [hereinafter “Proscan Radiology”] was the original claimant. At oral argument, in response to defendant’s motion to dismiss for lack of standing, counsel for Proscan Radiology moved to amend the caption by adding Proscan Imaging, Buffalo [hereinafter “Proscan Imaging”] and Dr. Gurmeet Dhillon, as additional claimants bringing the same claim. Over defendant’s objection, this court granted the motion to amend, pursuant to UCCA §1804-A (“the court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading and/or evidence”).

The claim is based on the assignment of first party no-fault benefits from an insured of Progressive’s to claimants, who provided medical services (3 MRI scans) to the insured. Progressive denied payment of the claim based on a peer review report claiming that the MRI tests were premature and not medically necessary at the time that they were performed, and that the fees requested were in excess of the fee schedule.

In addition to those defenses, Progressive also asserts that Proscan Radiology has no standing to sue because it is not the assignee named in the original no-fault assignment. Progressive also moves to dismiss the newly added claim by Dr. Dhillon for the same reason. Progressive moves to dismiss the claim by Proscan Imaging (who it claimed to be the named assignee) because it is not licensed to practice medicine in New York and therefore cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16, as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005).

Both parties are seeking summary judgment at this time. While pre-trial motion practice is generally discouraged in small claims court (Weiner v Tel Aviv, 141 Misc 2d 339 [1988]), it is allowed by 22 NYCRR 210.41-a (l). This court agreed to hear this motion because it appears that this issue will recur repeatedly in small claims proceedings unless the court makes and publishes a ruling.

In making this decision, the court is mindful of the of the goals and intentions of the legislature in enacting the commercial small claims parts in city courts; namely, to provide commercial entities and small businessmen, who have relatively simple and small monetary claims, with a forum that is convenient, simple and quick. The court is also aware of the primary purpose underlying the no fault law; namely, to assure prompt payment of first-party benefits without regard to fault and without expense to those making claims as a result of motor vehicle accidents. To implement this legislative aim of curtailing delay and reducing expense in the adjustment of such claims, the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays (Dermatossian v New York City Transit Authority, 67 NY2d 219, 225 [1986]).

Under both the Uniform City Court Act and the No-Fault Law, the claimants here are entitled to have their claim decided quickly and inexpensively. Therefore this court will not transfer these [*3]matters to a regular part of the court (despite the fact that both sides are represented by counsel), absent a compelling reason to do so; which is not present in this case.

While UCCA 1804-A provides that the hearing of this matter will not be bound by the statutory provisions or rules of practice and procedure, 22 NYCRR 210.41-a (l) calls for no such relaxation during motion practice. Furthermore, because both sides are represented by counsel who are engaged in formal motion practice, this court will require that their submissions comply with the normal rules associated with formal motion practice (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Miller v County of Nassau, 2003 WL 22462114, 2003 NY Slip Op 51307 [2003]; Buell v Dolan, 2003 WL 22462177, 2003 NY Slip Op 51328 [2003]; Nuckle v Huyck, 2002 WL 484315, 2002 Slip Op 40041 [2002], Spiegel v Continental Airlines, 11 Misc 3d 145 [A] [2006]; Jackson v Deer Park Ventures, 9 Misc 3d 1123 [A] [2005]). This court is not bound in the making of this decision by the holdings of any arbitrators (Hobby v CNA Insurance, 267 AD2d 1084 [4th Dept 1999]).

Decision on the Merits

A.Claimants’ Prima Facie Case

A claimant is not required to submit a physician’s affidavit to establish medical necessity as part of its prima facie case, since medical necessity is established in the first instance by proof of submission of the claim form (All County Open MRI v Travelers Insurance, 11 Misc 3d 131 [a] [2006]). To recover first-party no-fault benefits for medical services provided to its assignor, a claimant establishes a prima facie entitlement to summary judgment by proof that it submitted a valid assignment of benefits, a claim setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Mary Immaculate Hospital v Allstate, 5 AD3d 742, 742-743 [2d Dept 2004]).

Courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim. Once the claimant has established a prima facie case, the burden shifts to the defendant to come forward with admissible evidence refuting the claimant’s evidence and demonstrating the existence of a material issue of fact (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 770 [2004]; Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

In support of its motion, Progressive submitted the following documents:

1) a New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form (NYS FORM NF-AOB) listing “ProScan” as the assignee, and Proscan Imaging as the provider of the services;

2) a copy of the Health Insurance claim form, (Form CMS-1500) dated 12/16/04, submitted by the Claimants seeking payment for 3 MRIs: code No.72141 (cervical spine); $1,100.00, code #72146 (thoracic spine); $1,20.00 and code #72148 (lumbar spine); $1,100.00, which listed Dr. Dhillon as the physician/supplier of the services, Proscan Radiology as the facility where the services were rendered and Proscan Imaging as the physician/supplier’s billing name; and

3) NF-10 Denial of Claim Form, listing Dr. Dhillon and Proscan Imaging as assignees, the amount of the claims as $3,400.00, the date of treatment as 12/07/04, [*4]date of bill as 12/16/05, date bill received by insurer as 1/3/05. The denial was based on fees not in accordance to fee schedules and lack of medical necessity based on a peer review. The denial was dated 3/18/05 and signed by Daniel R. Mack as adjuster and representative of insurer.

While the CMS-1500 form is not the statutorily required NF-3 claim form, it has been deemed its functional equivalent (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]).

In this case, the NF-10 denial form, which is admissible as an admission by Progressive, is sufficient to establish prima facie entitlement to summary judgment by claimants Dr. Dhillon and Proscan Imaging , i.e. that the assignment and claim were transmitted, that defendant received them, and that defendant failed to pay or deny the claim within 30 days of receipt [King’s Medical Supply v Country-Wide Insurance, 5 Misc 3d 767, 770 [2004]).

B.Defendant’s Medical Necessity Defense

While Progressive did submit copies of verification requests dated 1/14/05, as well as an affidavit of Georgia Pape stating that she was the adjuster on this claim, it failed to submit proof in evidentiary form (such as an affidavit of mailing) that the follow up verifications were in fact ever sent in order for the denial to be timely (Nyack Hospital v Metropolitan Property & Casualty, 16 AD3d 564 [2d Dept 2005]).

Here, the denial of claim was dated March 18, 2005, well beyond the 30 days to pay or deny the claim. Progressive’s assertion that it timely denied the claim lacks merit because the record does not contain an affidavit from a person with personal knowledge stating either that the March 18, 2005 denial of claim form was mailed, or setting forth a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (A.B. Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]). The proof submitted amounts to unsubstantiated hearsay

(Boai Zhong Yi Acupuncture v New York Central Mutual, 8 Misc 3d 1011[A] [2005]).

Mr. Pape claims to have personal knowledge of requests for verification and that the denial was timely, but provides not proof of the same; especially as to how he knows when, if ever, that Daniel R. Mack, the adjuster named on the Denial of Claim Form, mailed the documents in question (see Hospital for Joint Diseases v Nationwide Mutual Ins, 284 AD2d 374, 375 [2d Dept 2001]; Careplus Medical Supply v Travelers, 7 Misc 3d 133 [A] [2005]).

Here, the defendant has failed to offer proof in admissible form that it sought verification of the claim, or that it timely denied the claim (Summit Psychological v General Assurance, 9 Misc 3d 8, 9-10 [2005]; Delta Diagnostic v Geico, 10 Misc 3d 145 [A] [2006]). An insurer who fails to pay or deny the claim, or seek verification of the particulars of the claim-within the applicable time periods, is thereafter precluded from raising any defenses to the claim, other than lack of coverage or fraud (Metropolitan Radiological v State Farm, 7 Misc 3d 675 677 [2005]; King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]; Presbyterian Hospital v Maryland Casualty Co., 90 NY2d 274 [1997]).

Therefore, Progressive is barred from denying the claims by Dr. Dhillon and Proscan Imaging based on lack of medical necessity (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]).

However, even if Progressive could proceed on the lack of medical necessity defense, it [*5]would fail because the peer review report that it relied upon, and the subsequent affidavit provided by the chiropractor, did not provide an appropriate rationale for lack of medical necessity or explain how the MRI tests could be medically unnecessary when they did in fact yield positive findings (Nir v Allstate, 7 Misc 3d 544, 548 [2005]).

While the MRI results were provided by way of a sur-reply affidavit, such affidavits can be considered by the court where, as here, Progressive had an opportunity to reply to that submission and took advantage of that opportunity by offering further submissions of its own (Hoffman v Kessler, 28 AD3d 718 [2d Dept 2006]; Hayden v County of Nassau, 16 AD3d 415 [2d Dept 2005]),

Such scant factual basis and medical rationale will not sustain defendant’s burden of proof. Nir v Allstate, 7 Misc 3d 544, 548 [2005]). This court will not second guess a doctor who decides that a medical test is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient; especially in light of positive findings (Alliance Medical Office PC v Allstate, 196 Misc 2d 268, 270 [2003]; Nir v Allstate, 7 Misc 3d 544, 548 [2005]). Putting weight on the treating physician’s prescription serves the reasonable expectations of the insured. An insured expects coverage for treatment recommended by a physician because he trusts that the physician has recommended a reasonable treatment consistent with good medical practice; the insured’s expectations can best be fulfilled by construing the policy liberally, so that uncertainties about the reasonableness of treatment will be resolved in favor of coverage (Oceanside Medical Healthcare v Progressive, 2002 WL 1013008, 2002 Slip Op 50188 [U] [2002]).

C.The Defense that Claimants Lacked Standing

Next, Progressive has alleged that Proscan Radiology and Dr. Dhillon cannot seek payment under the assignment because they were not listed as the assignee of the benefits in this matter.

If Progressive had any concerns about who the proper claimant was or who held the valid assignment of the benefits it had to raise that objection in its original denial of claim (which it did not do) or it would be deemed waived (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]). Since Dr. Dhillon and Proscan Imaging were listed on the initial claim form, and Progressive did not question the validity of the request for reimbursement based on the assignment in its denial, it is precluded from raising that issue now as a defense (Summit Psychological PC v General Assur Co, 9 Misc 3d 8, 11 [2005]).

Progressive is correct, however, that Proscan Radiology has never put forth any proof that it has ever submitted any claim in this matter. Therefore, its claim is dismissed.

D. The Defense that Claimant is Not Licensed to Practice Medicine

Progressive is also correct that a business entity that is not licensed to practice medicine in New York cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16(a)(12), as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). Additionally, such a defense is not waived by failing to state it in the original denial of claim (AB Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]; SK Medical Services, 11 Misc 3d 1086 [A] [2006]; Metroscan Imaging v Geico, 8 Misc 3d 829, 834-835 [2005]).

In support of its claim that Proscan Imaging is not entitled to payment on this claim because it is not licensed to practice medicine in New York State, and therefore in violation of 11 NYCRR 65-3.16(a)(12), Progressive attached uncertified copies of search results from (1) the New York State Department of State, Division of Corporations, Entity Information website, which can be found [*6]at http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry, and (2) the New York State, Education Department, Office of the Professions, On-Line Business Entities Verification website; which can be found at http://www.op.nysed.gov/opsearches.htm,

This court will take judicial notice of the records kept and maintained by the State of New York and other states on their official government websites and will accept that information as an exception to the hearsay rule under CPLR Rule 4518(a), the business records exception and State Technology Law § 306 (see Miriam Osborn Memorial Home Assc v City of Rye, 9 Misc 3d 1019 [2005]; Citibank NA v Martin, 11 Misc 3d 219 [2005]; Cali v East Coast Aviation, 178 FSupp2d 276, 287 [EDNY 2001]).

Here, since Progressive has met their initial burden in showing that Proscan Imaging is not licensed to practice medicine in New York State, a prerequisite to perform and seek reimbursement for diagnostic services under the no-fault law under 11 NYCRR 65-3.16(a)(12), and Proscan Imaging having offered no proof in response on the issue, this court must dismiss its claim.

To be clear, this is not the type of matter that was decided by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). There is no allegation of fraud. This is more of the nature of a “technical” violation described by the court in Mallela, but the importance of licensed professionals performing these tests is not lost on the court.

It should be noted that (1) the New York State Department of State, Division of Corporations’ Entity Information website; (2) the State of Ohio’s Secretary of State, Corporate Database Search (http://www.sos.state.oh.us/); and (3) the New York State, Education Department, Office of the Professions’ On-Line Business Entities Verification website all show that all of the principals in Proscan Radiology and Proscan Imaging, including Dr. Dhillon, are licensed to practice medicine in New York State.

Under this type of fact pattern, fairness would seem to dictate that Proscan Imaging simply be allowed 60 days to apply, pay the required fees and be issued a license in order for it to maintain its claim, much like unauthorized foreign corporations seeking to maintain an action in New York once their corporate status is discovered in the middle of litigation (McIntosh v Ball, 247 AD2d 103, 105-106 [3d Dept 1998]). However, that type of remedy need not be addressed in this case since Dr. Dhillon has met his burden for summary judgment in this matter.

E.Defendant’s Claim of Nonconformity with the Worker’s Compensation Fee Schedules

Finally, Progressive has alleged that the fees requested for the services performed are beyond those allowed by statute. Normally, the charges for such services are limited by the fee schedules established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determine that usual procedures or unique circumstances justify the excess charge (Insurance Law § 5108 [a]).

The court will also take judicial notice that according to the controlling Official New York State Workers’ Compensation Medical Fees Schedule, effective October 1, 2003; the allowable fees for the date of service in the 14221 zip code were: # 72141 (cervical spine): $707.11; code # 72146 (thoracic spine): $771.31; and code #72148 (lumbar spine): $733.04; which are lower than the amounts being claimed here.

However, having failed to establish a timely denial of the claim, Progressive is precluded from raising its defense of nonconformity with the Worker’s Compensation fee schedules (Ultra Diagnostics v Liberty Mutual, 9 Misc 3d 97, 98 [2005], Rigid Medical of Flatbush v New York [*7]Central, 11 Misc 3d 139 [A] [2006]).

Pursuant to rule, since the fees sought are beyond the applicable fee schedule, and no unique circumstances have been claimed, Dr. Dhillon is not entitled to attorneys fees on his claim (11 NYCRR 65-4.6 [i]; Matter of the Medical Society of New York v Superintendent of Ins, 100 NY2d 854, 871 [2003]).

Conclusion

Therefore, it is hereby ordered that Dr. Dhillon is entitled to recovery of unpaid no-fault benefits for services he provided to the Progressive’s insured, and his motion for summary judgment is granted in the sum of $3,400.00, with statutory interest from February 2, 2005. Interest shall be calculated by the clerk of the court at the statutory rate of 2% per month; plus normal small claims costs and disbursements, if any. It is further ordered that Progressive’s motion for summary judgment is granted as to Proscan Imaging and Proscan Radiology.

This decision constitutes the order of this Court.

Hon. Henry J. Nowak

Buffalo City Court Judge

Dated:June 27, 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, Kings County (George J. Silver, J.), entered July 11, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny its claims within 30 days of their receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). In its opposition papers, defendant stated that it sent plaintiff timely requests for verification which tolled the 30-day period within which it was obligated to pay or deny the claims. After receiving the requested verification, defendant paid a portion of plaintiff’s bills and timely denied the remaining balance based on the ground that the fees charged by plaintiff for the services rendered were in excess of the Workers’ Compensation fee schedule. The lower court granted plaintiff’s motion for summary judgment on the ground that defendant failed to establish that it timely mailed the requests for further verification and, thus, the 30-day statutory time period within which it was required to pay or deny each claim was not tolled.

We disagree with the lower court’s finding that defendant failed to establish the timely mailing of its verification requests. In an affidavit annexed to defendant’s opposition papers, defendant’s claims examiner stated that “[i]t is [defendant’s] business practice to mail all verification requests to the address the applicant lists on the bill on the same day the verification request is generated. In compliance with that policy on the day [that] each verification request was generated: 2/25/02, 4/01/02 and 3/19/02, the verification request was mailed to [plaintiff].” In addition, unlike the affidavit of defendant’s claims examiner in the case of Contemp. Med. [*2]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]), defendant’s claims examiner further stated that he had “personal knowledge of [defendant’s] office practices and policies and [is] responsible for ensuring that they are enforced.” Defendant’s opposition papers thereby sufficiently established the timely mailing of the verification requests since the affidavit of defendant’s claims examiner was from one with personal knowledge of the standard office practice used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In view of the tolling of the 30-day period within which defendant was required to pay or deny the claims, defendant’s denials of claims were not untimely. Accordingly, plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 23, 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, Kings County (Eileen Nadelson, J.), entered February 25, 2005, deemed an appeal from a judgment of the same court, entered May 13, 2005. The judgment, entered upon the order of February 25, 2005 granting plaintiffs’ motion for summary judgment, awarded plaintiffs the principal sum of $3,947.06.

Judgment reversed without costs, order entered February 25, 2005 vacated, plaintiffs’ motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action to recover first-party no-fault benefits for health care services rendered to their assignor, plaintiffs providers established a prima facie entitlement to summary judgment by proof that they submitted 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A given basis for denial of all the claims was that an investigation had revealed that the injuries alleged were not related to the subject motor vehicle accident. In opposition to plaintiffs’ motion, defendant submitted, inter alia, an accident analysis report (referred to as a “low impact study”) accompanied by an affidavit of the technical consultant/accident [*2]reconstructionist who prepared the report. Contrary to the finding of the court below, a low impact study may constitute a proper basis for a denial (see Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]), provided it is in admissible form (cf. Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment should not have been granted, and the matter is accordingly remanded for further proceedings.

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 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.
Decision Date: June 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, Kings County (Eileen Nadelson, J.), entered March 16, 2005. The order granted defendant’s motion to vacate the default judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, a default judgment was entered and defendant moved to vacate same. Upon a review of the record, we find no basis upon which to disturb the lower court’s finding that defendant established both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). Accordingly, the lower court’s order granting defendant’s motion to vacate the default judgment should be affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 22, 2006