—[*1]

In an action to recover no-fault medical payments, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jonas, J.), dated August 20, 2004, which granted the defendant’s motion to vacate a judgment of the same court entered April 30, 2004, upon its default in opposing the plaintiffs’ motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the judgment is reinstated.

A defendant seeking to vacate a judgment entered upon default is required to demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Carnazza v Shoprite of Staten Is., 12 AD3d 393 [2004]; Henry v Kuveke, 9 AD3d 476 [2004]; Weekes v Karayianakis, 304 AD2d 561 [2003]). The defendant failed to do either. The defense counsel’s excuse of law office failure was conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse (see Fekete v Camp Skwere, 16 AD3d 544 [2005]; Juarbe v City of New York, 303 AD2d 462 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993]).

In addition, the defendant failed to present a meritorious defense to the action. [*2]Contrary to the defendant’s contention, written proof of claim on behalf of Michele Carias was timely submitted to it within 180 days after the date the services were rendered, as required pursuant to 11 NYCRR 65.12 (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]). The affidavit submitted by the defendant’s claims representative was insufficient to demonstrate that the injuries for which Carias was treated did not arise out of an insured incident (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391 [2005]; Santiago v Sansue Realty Corp., 243 AD2d 622, 623 [1997]; Peacock v Kalikow, 239 AD2d 188 [1997]). Moreover, the defendant’s submissions failed to demonstrate that it denied Mario Delgado’s claim for no-fault medical payments within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Accordingly, the defendant’s motion to vacate the judgment entered upon its default in opposing the motion for summary judgment should have been denied (see Presbyterian Hosp. in City of N.Y. v New York Cent. Mut. Ins. Co., 277 AD2d 299, 300 [2000]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered March 30, 2004 (Irving Rosen, J.) which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered March 30, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted, defendant’s cross motion is denied and the matter is remanded to Civil Court for a calculation of statutory interest, an assessment of attorney’s fees due thereon and entry of judgment.

Plaintiff health care provider commenced this action to recover $1,080.90 in first-party no-fault benefits for medical services rendered in February and March 2002 to its assignor, Harnarine Sumeer (Sumeer), for injuries allegedly sustained in a motor vehicle accident on December 17, 2001. Plaintiff mailed its claim on May 30, 2002 and defendant acknowledged receipt thereof on June 3, 2002. The suit is premised on defendant’s failure to pay or deny the claim within 30 days after its receipt. Defendant’s reason for denying the claim, as stated in its Denial Of Claim Form dated August 15, 2002, was Sumeer’s nonattendance at scheduled [*2]examinations under oath (EUOs).

Plaintiff established a prima facie showing of entitlement to judgment as a matter of law by proof that its claim 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]).

Defendant failed to raise triable issues of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing EUOs pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the April 5, 2002 effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are not applicable to claims until new policies containing the revised endorsement are issued or renewed (see Star Medical Services PC v Eagle Insurance Company, 6 Misc3d 56 [2004]). Consequently, absent a showing that the subject policy contained an endorsement permitting EUOs, defendant was not entitled to a tolling of the 30-day period (11 NYCRR 65-3.8[c]) and its denial of plaintiff’s claim was untimely.

This constitutes the decision and order of the court.
Decision Date: September 09, 2005

[*1]

Civil Court of the City of New York, New York County, August 30, 2005

APPEARANCES OF COUNSEL

Thomas G. Connolly for defendant. Leon Kucherovsky for plaintiff.

OPINION OF THE COURT

Manuel J. Mendez, J.

The defendant moves for an order dismissing the case on the ground that the plaintiff lacks standing to prosecute the action. Plaintiff opposes that motion.

Facts

Plaintiff health care provider, T & G Medical Supplies, Inc. as assignee of Yolette Milford, mailed a bill to defendant, National Grange Mutual Insurance Company, regarding treatment for dates of services it rendered the assignor on April 21, 2003, April 24, 2003, April 29, 2003, May 1, 2003, May 5, 2003, and May 6, 2003. Defendant received the bill on June 5, 2003 and timely denied it on June 6, 2003. Defendant now moves this court to dismiss the action on the ground that plaintiff has no standing to sue because no valid assignment has been exchanged with the plaintiff’s responses to the defendant’s discovery demands.

Issue

Does the plaintiff have standing to sue?

Law

To establish a prima facie claim for the recovery of first-party no-fault benefits for medical supplies or equipment, plaintiff assignees must show a policy in effect issued by defendant covering the treated person and motor vehicle collision, assignment of policy benefits, cost of the equipment or supplies, presentation of the claims to the insurer and failure to pay or deny within 30 days (see, 11 NYCRR 65.15 [g] [6]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]; Neuro Care Ctr. II v Allstate Ins. Co., NYLJ, Jan. 28, 2003, at 19, col 5; Metroscan Imaging v American Tr. Ins. Co., NYLJ, Dec. 10, 1999, at 27, col 5 [Civ Ct, NY County]; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287 [2000]; King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d 667 [2003]). Plaintiff must demonstrate it has standing to bring the action and that completed proofs of claims were presented to the insurer who failed to pay or deny within 30 days.

Recently, the Appellate Term, Second Department, held that admissible proof authenticating an assignor’s signature on an assignment form is not necessary to establish its prima facie entitlement to summary judgment (see, A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term 2d & 11th Jud Dists 2004]). It also held that the only thing required of a health care provider/assignee plaintiff in regard to an assignment is that it submit a “properly executed assignment” on one of four forms (at 71). The four forms the court names are (1) the NYS form NF-3 which is the prescribed verification of treatment by the attending physician or other provider of service form; (2) the NYS form NF-4 which is the prescribed verification of hospital treatment form; (3) the NYS form NF-5 which is the prescribed hospital facility form, and (4) the NYS form NF-AOB which is the prescribed no-fault assignment of benefits form (see, A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., supra; 11 NYCRR 65-3.11 [b] [2]). [*2]

Courts have also held that a defendant’s failure to pay or deny a claim, whether in whole or partially, within the 30 days mandated by the statute, prevents it from alleging any defense related to the adequacy of the claim forms provided by the plaintiff including the lack of necessary signatures on an assignment form (see A.B. Med. Servs. PLLC v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U] [App Term, 1st Dept 2004]; Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co., NYLJ, June 29, 2005, at 24, col 2 [1st Dept 2005]).

In the case at bar, the defendant moves to dismiss plaintiff’s claim on the ground that plaintiff does not have standing to sue because there is no assignment. This distinguishes it from the cases discussed above where plaintiff moved for summary judgment based on defendant’s failure to pay or deny the claim.

In A.B. Med. Servs. PLLC v CNA Ins. Co. and Diagnostic Rehab. Medicine Serv. v Farm Family Cas. Ins. Co., defendants failed to pay or deny the claim within the statutory time or to seek verification. This case is distinguishable from those cases in that defendant received plaintiff’s bill on June 5, 2003 and issued a timely denial on June 6, 2003 (see A.B. Med. Servs. PLLC v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U], supra; Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co., NYLJ, June 29, 2005, at 24, col 2, supra).

Plaintiff argues that defendant’s motion should be denied because it failed to state any deficiency regarding the assignment in its denial, thereby waiving any defense not included in the denial.^[FN1]

Standing to sue is one of the basic elements in any action. Notably, without it, you are not entitled to begin an action (see Black’s Law Dictionary 1413 [7th ed 1999]). As such, the issue of standing cannot be waived even if a defendant fails to object to the issue of standing beforehand. (See Stark v Goldberg, 297 AD2d 203, 204 [1st Dept 2002]; Axelrod v New York State Teachers’ Retirement Sys., 154 AD2d 827 [1989].) In order to establish standing in a no-fault claim, plaintiff health care providers must produce “properly executed” assignments of insurance benefits, signed by the patient naming the provider as assignee (see 11 NYCRR 65-3.11 [b] [2]; A.B. Med. Servs. PLLC v Highland Ins. Co., NYLJ, May 27, 2003, at 21, col 3; Advanced Med. Rehabilitation P.C. v Travelers Prop. Cas. Ins. Co., 2 Misc 3d 1004[A], 2004 NY Slip Op 50141[U]; T&G Med. Supplies, Inc. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 1017[A], 2005 NY Slip Op 50636[U]). Like any contract, the assignment should reflect the names of the assignor and assignee, the date the accident leading to treatment occurred, the signatures of both parties, and the date the assignment took place (see, T&G Med. Supplies, Inc., 7 Misc 3d 1017[A], 2005 NY Slip Op 50636[U], supra). In fact, the assignment of benefit form provided by New York State Department of Motor [*3]Vehicles provides blank spaces for the patient/assignor’s name; for the health care provider/assignee’s name; for the date of the accident; for the signatures and addresses of both assignor and assignee; and for the date of the assignment (see NYS form NF-AOB). The form clearly illustrates that the particular information requested is required in order for the assignment to be deemed valid and for plaintiff to have standing to sue. In this case, the assignment in question happens to be on a NYS form NF-AOB^[FN2] and the only section of the assignment that is completed is the signature of the alleged assignor. Conspicuously absent is the name of the party receiving the assignment, who in the future would have standing to bring an action.

Conclusion

Upon a review of all the papers, the court finds that defendant made out a prima facie case of its entitlement to summary judgment. Specifically, defendant argues that plaintiff has not established that it has standing to maintain this action. The undated assignment it provided does not contain the name of the assignor, the signature of the assignee or the date of the alleged occurrence.^[FN3] Upon a reading of the purported assignment, one is not certain who the alleged assignor is delegating her rights to or when she did so. The assignment also fails to state when she suffered the injuries leading to the need for medical supplies. These defects in the alleged assignment of benefits to plaintiff illustrate its lack of standing to maintain this action.

Accordingly, defendant’s motion is granted and the action is dismissed.

Footnotes

Footnote 1: See paragraph 4 of plaintiff’s affirmation in opposition.

Footnote 2: See exhibit C of moving papers, a copy of the assignment of benefit form.

Footnote 3: See exhibit C of the moving papers—the assignment.

[*1]

Civil Court of the City of New York, Queens County, August 30, 2005

APPEARANCES OF COUNSEL

Belesi, Donovan & Conroy, P.C., Garden City, for plaintiff. Bruno, Gerbino & Soriano, LLP, Melville, for defendants.

OPINION OF THE COURT

Denis J. Butler, J.

Plaintiff, Multiquest, PLLC, brought suit to recover payment under the No-Fault Law for medical services provided to assignor Paulette Cleckley. Plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment dismissing plaintiff’s cause of action.

Plaintiff contends that it properly issued a claim on behalf of the assignor and that such claim was not timely denied. Defendant does not dispute the untimeliness of its denial. Defendant contends, however, that plaintiff is not entitled to recover payment for such medical services allegedly provided under the No-Fault Law as the plaintiff’s medical facility was fraudulently incorporated at the time the alleged services were rendered to the assignor. For the foregoing reasons, the court finds in favor of defendant.

Plaintiff proved that it submitted a timely and proper notice of claim, which defendant has not paid in full, for services rendered to the assignor beginning November 5, 1998. The [*2]defendant, according to its denial of claim form, received such claim on July 11, 2001 and issued an untimely denial on August 11, 2001, 31 days after the date of receipt. The No-Fault Law requires the insurer to either pay or deny the claim for no-fault benefits within 30 days from the date the applicant supplies proof of claim. (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3].)

Defendant, in its cross motion, asserts that plaintiff’s medical facility was fraudulently incorporated at the time the services were rendered to the assignor and that plaintiff is therefore not entitled to recover on such claim. In support, defendant provides a copy of plaintiff’s application for employer identification dated September 4, 1998, which lists Yeugeny Gorbatov, a licensed acupuncturist, as president of Multiquest Psychological and Acupuncture Services, PLLC. Defendant also provides a copy of the Articles of Organization filed with the New York State Department of State on July 14, 1998, which lists Mr. Gorbatov and Kathryn Clarke, a licensed psychologist, as “original members and managers” of Multiquest Psychological and Acupuncture Services, PLLC.

Defendant also submits a copy of a stock certificate labeled “Number 2” which was issued to Dr. Joseph Indelicato on September 6, 2001 and which lists Dr. Indelicato as an owner of Multiquest. The defendant, in its affirmation in opposition, asserts that, as president of Multiquest, Mr. Gorbatov should have been issued stock certificate “Number 1” in 1998 when the company was first formed. Therefore, defendant contends that had there been a proper incorporation in 1998 a second stock certificate would have been issued by the medical facility to a licensed psychologist. However, the documents submitted on the motion herein do not indicate that Ms. Clarke or any other licensed psychologist was ever issued a stock certificate by the medical facility in 1998.

Defendant, in further support of such cross motion, submits a copy of a certified transcript of an examination under oath of Ms. Clarke dated April 26, 2004, wherein Ms. Clarke denied ever being a member or owner of Multiquest. Furthermore, Ms. Clarke stated that she never gave Multiquest permission to list her as a principal in the professional corporation. The court notes that defendant submitted, in the cross motion, the Articles of Organization filed by Mr. Gorbatov on July 14, 1998 listing Ms. Clarke as one of the owners. The defendant asserts in its cross motion that Mr. Gorbatov fraudulently listed Ms. Clarke as one of the owners in such document for the sole purpose of acquiring a valid New York state license to perform psychological services.

Plaintiff, in reply to defendant’s cross motion, merely asserts that defendant’s denials were untimely. With respect to defendant’s allegations of fraud and misconduct, plaintiff merely alleges that Ms. Clarke’s testimony is not credible as it was provided pursuant to an agreement wherein defendant agreed not to commence an action against Ms. Clarke in exchange for such testimony. Plaintiff, however, fails to submit any documentary proof rebutting defendant’s assertions of fraud or misconduct. Additionally, plaintiff fails to submit an affidavit from someone with personal knowledge of the facts disputing such allegations by defendant.

The Court of Appeals has ruled that under New York State’s No-Fault Law and implementing regulations, insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises. (State Farm Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005] [Mallela III].) The Mallela III court followed the Superintendent of Insurance’s [*3]promulgation prohibiting the reimbursement of benefits on behalf of unlicensed or fraudulently licensed providers. (11 NYCRR 65-3.16 [a] [12] [eff Apr. 4, 2002].) Accordingly, Mallela III ruled that medical providers fraudulently incorporated are therefore not entitled to reimbursement. Pursuant to the proof submitted in support of the motion and cross motion, it appears that plaintiff provider, Multiquest, was not properly licensed at the time the alleged medical services were provided. Additionally, defendant has submitted uncontroverted testimony under oath that the Articles of Organization improperly listed Ms. Clarke as an owner without her knowledge or consent.

The court now must determine whether 11 NYCRR 65-3.16 (a) (12) (eff Apr. 4, 2002) applies to claims made prior to the effective date of April 4, 2002 and, if so, whether such ruling applies when there is an untimely denial. This court finds that the intent of the Mallela III court was that 11 NYCRR 65-3.16 (a) (12) be applied to claims prior to April 4, 2002. The analysis of this court concurs with the decision in Metroscan Imaging P.C. v GEICO Ins. Co., to the extent that reading “the Mallela III decision as only pertaining to claims maturing post-April 4, 2002 is simply illogical” and would negate the intent of the Mallela III court. (Metroscan Imaging PC v GEICO Ins. Co., 8 Misc 3d 829, 834 [Civ Ct, Queens County 2005].) The Mallela III court, in considering such determination, relies on the argument presented in the amicus brief of the Superintendent of Insurance which alleges that such rule was promulgated to “combat rapidly growing incidences of fraud in the no-fault regime, fraud that he has identified as correlative with the corporate practice of medicine by nonphysicians.” (4 NY3d at 320 n 2.) Clearly, the Mallela III court strongly concurred with the findings of the Superintendent of Insurance that services provided by fraudulently licensed no-fault “providers” should not be reimbursed.

It is well settled that despite an untimely denial, an insurer is not precluded from raising the issue of coverage such as a breach of a condition precedent of the terms of the insurance contract. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].) In addition, the court notes that proper licensing of a medical provider is a condition precedent to payment. (Valley Physical Medicine & Rehabilitation v New York Cent. Mut. Ins. Co., 193 Misc 2d 675 [App Term, 2d Dept 2002].)

Furthermore, defendant, in its cross motion, alleges that plaintiff in addition to being improperly incorporated is also seeking compensation for medical tests provided to the assignor which were administered by individuals who were not licensed to administer such tests. Business Corporation Law § 1504 (a) provides that a professional service corporation may not “render professional services except through individuals authorized by law to render such professional services as individuals.” At the examination under oath dated April 26, 2004, Ms. Clarke testified that she was merely employed as an independent contractor for Multiquest and that she witnessed “assistants” administering psychological testing to the patients. Pursuant to the New York Workers’ Compensation Psychology Fee Schedule, “psychological services will be rendered by or under the active supervision of an authorized psychologist.” (12 NYCRR 333.2 [incorporated by reference].) It appears from the testimony of Ms. Clarke that Multiquest has provided psychological services which were not administered by or under the supervision of an authorized psychologist. [*4]

Accordingly, as the plaintiff has failed to proffer sufficient evidence to rebut defendant’s allegations that the medical provider was fraudulently incorporated at the time the alleged services were provided to the assignor and that it provided services by unlicensed psychologists, the medical services provided by the plaintiff to its assignor are therefore not covered under the No-Fault Law. Accordingly, plaintiff’s motion for summary judgment is denied, plaintiff’s cross motion for summary judgment is granted and the case is dismissed.

Supreme Court, Kings County

28371/04

Yvonne Lewis, J.

Mr. Richard Martinez and Geico Insurance Company have moved this court, pursuant to CPLR 3211 (a) (5), for an order to dismiss the within action on the ground that the action is barred by the applicable three year statute of limitations for personal injury and subrogation actions (CPLR 214[5]). The defendants contend that the accident underlying the within action unquestionably occurred on August 17, 2001, and that “[t]he present action [against Mr. Martinez] was commenced on September 8, 2004, well over three years past from the date of the accident on [said] August 17, 2001.” Mr. Martinez received the summons and complaint in the mail on September 25, 2004. Geico was served on October 12, 2004. The defendants also assert that the subrogation action is fatally flawed inasmuch as “[t]he complaint only alleges that the defendant GEICO provided insurance coverage to the defendant Martinez on the date of the accident[;] and New York State Insurance Law section 3420 (b) states that no action can be brought on the liability portion of a policy against an insurer until a judgment has been entered against the covered party.” In this instance, Palisades Insurance Company, not Geico, paid Grigory Belovskiy ($61,500.00) under the uninsured (sic) provisions of his policy. Lastly, the defendants state that the action against Mr. Martinez should additionally be dismissed since he was only served by regular mail, and not as specified for proper service in CPLR 308.

In opposition, the plaintiff (Palisades) notes that prior to settling with its insured (Mr. Belovskiy’s), Mr. Martinez’ insurer, Geico, had offered to settle Mr. Belovskiy’s personal injury claims for twenty-five thousand dollars; however, the “. . .same was not accepted so that PALISADES would preserve its subrogation rights.” With regards to the remaining points raised by the defendants, the plaintiff asserts that 1. “[b]ased.on the tolling provisions of CPLR §204 (b), this action was tolled on November 11, 2002 when Mr. Belovskiy’s attorney, Barry Feldman, filed and served his demand for arbitration. . . .until September 17, 2003 when the underinsured arbitration was held and an award was rendered (citing, Joseph Francese, Inc. v. Enlarged City School District of Troy, 95 NY2d 59, 710 NYS2d 315 [2000])[;] ” 2. Mr. Martinez was served with process pursuant to CPLR §308(4) on September 24, 2004 and January 5, 2005; and,

3. “. . .an insurer’s subrogation rights accrue upon payment of the loss and at that point the insurer who has paid the policy limits possesses derivative and limited rights of the insured and may proceed directly against the negligent third-party to recoup the amount paid.” [*2]

The defendants’ reply to the foregoing points out that CPLR 204(b) is herein inapplicable inasmuch as the parties and claims in the New Jersey arbitration proceeding to which the plaintiff referred were different from those present in the within action. A fortiori, the defendants assert that not only were they not parties to the arbitration, but the “[p]laintiff’s own papers clearly show that there was a judicial determination that there was no jurisdiction over defendant Martinez in

New Jersey.” In other words, since the demand to arbitrate between Gregory Belovskiy (the insured) and Palisades (his insurer) is different from the now subrogated common-law negligence action by Mr. Belovskiy against Mr. Martinez, the tolling provisions of CPLR 204(b) do not apply. Lastly, the defendants argue that Geico’s offer of settlement was of no consequence herein since the Court of Appeals has made it clear that it is “. . .incumbent on a carrier to pay its insured so as to commence any subrogation action before the statute of limitations passes or to be sure that its subrogation rights are protected in any action already brought by its subrogor” (citing, Allstate Ins. Co. v. Stein, 1 NY3d 416, 775 NYS2d 219).

The matter of Allstate Ins. Co. v. Stein, supra, is dispositive of the main issue herein presented, inasmuch as the Court of Appeals’ aptly noted therein that “a subrogatin claim is derivative of the underlying claim and that the subrogee possesses only such rights as the subrogor possessed, with no enlargement or diminution. It is likewise consistent with the principle that a defendant in a subrogation action has against the subrogee all defenses that he would have against the subrogor, including the same statute of limitations defense that could have been asserted against the subrogor.” The court went on to elucidate between traditional equitable subrogation [governed by the three (3) year statute of limitation for personal injury actions pursuant to CPLR 214(5)] in contrast to entitlements established or imposed by statute (eg. No-fault MVIAC benefits) which create new and independent statutory rights and obligations [governed by the three (3) year statute of limitations for an action to recover upon a liability, penalty, or forfeiture created or imposed by statute, pursuant to CPLR 214(2)]. Finally, the court made the following caveat; to wit, that “. . .the subrogee acquires only the rights that the subrogor had, and so any subrogee may

find its claim defeated by a defense based on the subrogor’s action or inaction. In such case, the subrogee’s remedy is against the subrogor, for conduct that has prejudiced the subrogee’s right.

In the matter sub judice, the defendants have clearly established that the plaintiffs are seeking common law subrogation relief, not any statutorily derived benefit. Since it is a matter of general construction that a statute of limitations begins to run the day after a cause of action accrues (Gen. Const. L. §20), and since a cause of action for personal injury that is predicated on negligence accrues when the injury is sustained (Vigilant Ins. Co. of America v. Housing Authority of El Paso, 87 NY2d 36), it irrefutably follows that the plaintiffs’ claims are indeed time barred by the three year statute of limitations which commenced to run as of the date of the underlying accident [CPLR 214(5)].

The assertion by the plaintiffs that the statute of limitations was tolled is also unavailing.

“The purpose of the CPLR 204(b) tolling statute is to preserve a remedy to a litigant who has [*3]mistaken his forum (See D’Angiolillo v. Singh, 2002 WL 31940753 (NY Supp App. Term), 2002 NY Slip Op. 450511, citing Francese, Inc. v. Enlarged City School Dist. Of Troy, supra). Therefore a claimant who makes a demand concerning her contractual rights to uninsured motorist benefits under her insurer’s policy, who thereafter commences a common law negligence action against the defendant tortfeasor and/or his insurer cannot be said to be pursuing an action upon such [initial] claim within the meaning of CPLR 204(b) [See D’Angiolillo v. Singh,, supra, citing Bright v. Pagan, 236 AD2d 350, 653 NYS2d 645]. Lastly, the plaintiffs’ have neither offered nor has this court uncovered any legal or equitable basis to support their contention that an offer of settlement would somehow invoke the tolling provisions of CPLR 204(b).

WHEREFORE, Mr. Richard Martinez and Geico Insurance Company’s motion, pursuant to CPLR 3211 (a) (5), for an order to dismiss the within action on the ground that the action is barred by the applicable three year statute of limitations for personal injury and subrogation actions (CPLR 214[5]) is granted. This constitutes the decision and Order of this Court.

___________________________________

JSC

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on July 14, 2004, as denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. in the sum of $14,669.64.

Order insofar as appealed from unanimously reversed without costs, motion by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Appeal by plaintiff Daniel Kim’s Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to the determination of the court below, the defendant’s denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiffs sent, and that defendant received, the claims (see Capio 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]; 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]). Moreover, the lack of authentication of an assignor’s signature, in and of itself, does not [*2]constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Diagnostic Rehab. Med. Servs. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

It is uncontroverted that defendant timely denied the claims. In opposition to plaintiffs’ motion, defendant argued, inter alia, that the claims were properly denied on the ground that plaintiffs’ assignors failed to attend independent medical examinations (IMEs) scheduled by A. Samenga & Associates at the request of defendant’s claims representative. 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 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, 22 [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 plaintiffs have effectively conceded receipt of the IME notices dated August 6, 2001 and August 7, 2001 addressed to the assignors’ attorney, there was no competent proof of mailing to assignor Khlevner (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), and defendant has acknowledged that no notices were mailed to assignor Sultan. Under the circumstances, defendant’s opposition papers are insufficient to rebut the presumption of medical necessity (see Careplus Med. Supply Inc. v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]).

Inasmuch as no issue is raised relating to the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]). [*3]

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C., 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.
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 29, 2004, which denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment, deemed an appeal from a judgment of the same court, entered August 23, 2004, awarding plaintiff the sum of $1,819.20.

Judgment unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). Assuming arguendo that defendant timely denied the claims, it nevertheless had to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra).

In the instant action, defendant’s denial was predicated upon the failure of plaintiff’s assignor to appear for pre-claim independent medical examinations (IMEs). Although the failure of plaintiff’s assignor to appear at a pre-claim IME can be sufficient to rebut a prima facie case established by plaintiff, to properly interpose such opposition to plaintiff’s cross motion for summary judgment, defendant had to proffer evidence in admissible form establishing the failure of plaintiff’s assignor to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). While defendant’s counsel and defendant’s claims representative averred that plaintiff’s assignor failed to appear for pre-[*2]claim IMEs, they failed either to establish that they had personal knowledge that the requests for such IMEs were mailed to plaintiff’s assignor or to create a presumption of mailing by submitting an affidavit describing the standard office practice or procedures defendant uses to ensure that such letters are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff was entitled to summary judgment because defendant failed to rebut the prima facie case established by plaintiff (see Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; S & M Supply v GEICO Ins., 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U], supra; cf. Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on February 19, 2004, as denied its cross motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, order entered December 7, 2004 dismissing the action vacated, plaintiff’s cross motion for summary judgment granted in the sum of $1,432.43, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff established a prima facie entitlement to summary judgment in in the sum of $739.80, as assignee of Clara Suckragh, and the sum of $692.63 as assignee of Peter Suckragh, for a total of $1,432.43, by proof that it submitted the claims, setting forth the fact and the amount 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]). In opposition, defendant argued that it properly denied the claims on the grounds, inter alia, that the documentation submitted by plaintiff was not an accurate representation of the actual cost of the equipment and that certain of the claims were in excess of the “average” wholesale cost of the billed medical supplies.

The record indicates that defendant denied the claims beyond the 30-day period within which it was required to pay or deny the same (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). While a timely verification request may extend the 30-day period, the affidavit of defendant’s litigation examiner was insufficient to demonstrate proper mailing of the verification [*2]request as to assignor Clara Suckragh since there is no allegation by one with personal knowledge that the letters were actually mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing
procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Accordingly, as to assignor Clara Suckragh, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including the defense, in effect, of excessive charges (cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio 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]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]).

While defendant’s submissions were adequate to establish a tolling of the 30-day period with regard to assignor Peter Suckragh by proof of its receipt of the verification requested, defendant has failed to submit proof in admissible form in support of its defense that the documentation submitted by plaintiff was “not an accurate representation of [plaintiff’s] actual cost” of the equipment. Moreover, defendant’s partial denials of certain of the claims on the ground that these were in excess of the “average” wholesale cost of the billed medical supplies, fail to state a valid basis for denial under the insurance regulations then in effect (see e.g. Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; King’s Med.
Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]). The insurance regulations governing medical equipment and supplies applicable to the instant action limits the amount recoverable by a provider of medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]). The defendant’s denial of benefits on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location has been rejected for claims under the regulations in effect prior to October 6, 2004 (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44, supra; King’s Med. Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U], supra).

We note that pursuant to the revised Insurance Department regulations regarding durable medical equipment and supplies, effective October 6, 2004 (see Circular Letter No. 8 [2004]; 11 NYCRR Appendix 17-C, part F, eff. October 6, 2004), the fee schedule for medical equipment sets forth, in addition to the 150% limit, the “usual and customary price charged to the general public” (11 NYCRR Appendix 17-C,
part F [a] [2]), whichever is less.

Accordingly, plaintiff’s cross motion for summary judgment is granted in the sum of [*3]$1,432.43, 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.
Decision Date: August 17, 2005

Civil Court of the City of New York, Kings County

121508/04

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on Plaintiff’s motion for an order granting summary judgment against Defendant; and Defendant’s cross-motion for an order granting summary judgment dismissing the claim:

Notice of Motion for Summary Judgment

Attorney’s Affirmation in Support of Motion for Summary Judgment

(affidavit)

Exhibits A-M

Notice of Cross-Motion

Affirmation in Support and in Opposition

Affidavit

Exhibits A-C

Reply

The parties appeared as follows: Plaintiff by Alden Banniettis, Esq. and Defendant by Netanel Benchaim, Esq. of the Law Offices of Stacy R. Seldin.

These competing motions require the Court to consider the relationship between an opposer’s showing of a triable issue of fact sufficient to deprive the initial movant of summary judgment and the opposer’s prima facie showing of an entitlement to judgment as a matter of law sufficient to warrant summary judgment on the opposer’s cross-motion. This in the context of an action for first-party no-fault benefits after the insurer denied payment for lack of medical necessity.

Bedford Park Medical Practice, P.C. submitted ten bills to American Transit Insurance Company for physical medical and rehabilitation services rendered to its assignor,Sandra Berger, from October 23, 2002 through April 15, 2003. The bills total $6,091.78. At oral argument on the return date, American Transit stipulated that Bedford Park had submitted proper proof of claim for each of the bills, and Bedford Park stipulated that American Transit had made timely denial of each of the bills for lack of medical necessity based upon a medical examination of [*2]Bedford Park’s assignor.

The medical examination of Sandra Berger was conducted on July 9, 2002 by Dr. Irving Liebman, a board-certified orthopedic surgeon, and the findings and opinions of Dr. Liebman are summarized in an affirmed report of the same date. A copy of Dr. Liebman’s report was apparently sent to Bedford Park on July 22, 2003, three months before it rendered the services billed for and subject to this action. Dr. Liebman’s affirmed report is provided by American Transit on its motion. Bedford Park provides no evidence of medical necessity other than its Verification of Treatment forms.

In similar opinions issued on the same day, Appellate Term for the Second and Eleventh Judicial Districts and Appellate Term for the Ninth and Tenth Judicial Districts made clear that the burden of production, at least, on the issue of medical necessity rests on the insurer.

“[A] provider’s proof of a properly-completed claim makes out a prima facie case upon its motion for summary judgment…thereby shifting the burden to the insurer who, if not precluded, may rebut the inference by proof in admissible form establishing that the health benefits were not medically necessary…If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment.”(Amaze Medical Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d and 11th Jud Dists]; Damadian MRI In Elmhurst, P.C. v Liberty Mutual Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U], *2 [App Term, 9th and 10th Jud Dists]; see also A.B. Medical Services PLLC v Lumbermens Mutual Casualty Co., 4 Misc 3d 86, 87 [App Term, 2d and 11th Jud Dists 2004].)

And subsequently:

“[W]here the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact.” (A.B. Medical Services v New York Central Mutual Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U], *2 [App Term, 2d and 11th Jud Dists]; see also CPLR 3212[b].)

In Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co. (7 Misc 3d 18 [App Term, 2d and 11th Jud Dists 2004]), an opinion addressing the effect of an insured’s failure [*3]to attend a pre-claim medical examination, the court stated that the failure to attend “negates the presumption of medical necessity which otherwise attaches to [the provider’s] claim forms” (Id., at 22-23).

There is no appellate decision that explicitly addresses the burden of persuasion on medical necessity in the no-fault context, and one court’s survey of decisions rendered under general medical insurance policies did not reveal any that explicitly addressed the question. (See Oceanside Medical Healthcare, P.C. v Progressive Ins., 2002 NY Slip Op 50188[U], *15-*16 [Civ Ct, Kings County]; but see Igor Shtarkman, Neurologist, P.C. v Allstate Ins. Co., 2002 NY Slip Op 50568[U][App Term, 9th and 10th Jud Dists]). Although this Court once held otherwise (see Elm Medical, P.C. v American Home Assurance Co., 2003 NY Slip Op 51357[U], *8-*9 [Civ Ct, Kings County]), the Court is now of the view that the insured / provider bears the burden of persuasion on the question of medical necessity. Specifically, once the insurer makes a sufficient showing to carry its burden of coming forward with evidence of lack of medical necessity, “plaintiff must rebut it or succumb.” (See Baumann v Long Island Railroad, 110 AD2d 739, 741 [2d Dept 1985].)

Courts have recognized, however, that a proffer that is sufficient to raise a triable issue of fact may not be sufficient to establish an entitlement to judgment as a matter of law. (See American Honda Finance Corp. v Progressive Casualty Ins. Co., 290 AD2d 850, 852 [3d Dept 2002]; Ocean Diagnostic Imaging P.C. v State Farm Mutual Automobile Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50535[U][App Term, 9th and 10th Jud Dists]; Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50081[U][App Term, 2d and 11th Jud Dists].) This Court is unaware of an explicit articulation of the difference, except where a triable issue might be found by reason of the more “flexible” evidentiary requirements imposed on the opposer. (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453, 453 [2d Dept 2000]; A.B. Medical Services PLLC v State-Wide Ins. Co., 7 Misc 3d 136[A], 2005 NY Slip Op 50785[U], *2 [App Term, 2d and 11th Jud Dists].)

On a provider’s motion for summary judgment, the insurer may meet its burden of production with “affirmed reports based upon independent medical examinations (IMEs) conducted by the [the insurer’s] physicians, which sufficiently raise issues of fact as to the necessity of the medical services and treatment provided.” (Park Health Center v Prudential Property & Casualty Ins. Co., 2001 NY Slip Op 40650[U], *2 [App Term, 2d and 11th Jud Dists].) Presumably, the medical examination report must, like a peer review report submitted for the same purpose, “set forth a factual basis and medical rationale” for the claim’s rejection. (See S & M Supply Inc. v Kemper Auto & Home Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op

50209[U], *1 [App Term, 2d and 11th Jud Dists].)

Here, Dr. Irving Liebman concluded in the report of his July 9, 2002 examination of Bedford Park’s assignor that there was “no necessity for further treatment” and “no necessity for household help or a special transportation allowance.” Specifically, he found “no orthopedic [*4]objective evidence of disability.”

Dr. Liebman notes that x-rays of Sandra Berger’s cervical and lumbar spine were negative, but that an MRI of her left shoulder revealed a “supraspinatus tendinopathy”. He found no muscle spasm in her cervical, dorsal or lumbosacral spine; “full range of motion” throughout the spine; in both shoulders and hips; her elbows, wrists and hands; her knees, ankles and feet; and that the “straight leg raising test was unrestricted bilaterally.” He also reports that there was “no sensory loss” and that “cranial nerves were intact.”

The Court finds sufficient “factual basis and medical rationale” in Dr. Liebman’s report to raise a triable issue as to medical necessity, and to warrant, therefore, denial of Bedford Park’s motion. Does the report, however, establish prima facie that any subsequent treatment was not medically necessary? Are these the “appropriate circumstances” where the provider’s failure to come forward with admissible proof in reply warrant granting summary judgment to the insurer? (See A.B. Medical Services v New York Central Mutual Fire Ins. Co., 2004 NY Slip Op 50507[U], at *2.)

It seems to this Court that, in the absence of any specific direction from the appellate courts, an appropriate reference would be to caselaw describing the insurer’s prima facie burden on a motion to dismiss for absence of “serious injury” as defined in Insurance Law §5102(d). If the evidence submitted on lack of medical necessity would not be sufficient to preclude a claim for non-economic loss, it is difficult to see why it should suffice for cessation of benefits. After all, the no-fault scheme is intended to provide “prompt payment for basic economic loss…in exchange for a limitation on litigation to cases involving serious injury.” (See Pommells v Perez, 4 NY3d 566, 571 [2005].)

In this case, the Court finds that Dr. Liebman’s report would not establish prima facie the absence of “serious injury”, in that it fails to describe the “objective tests” he performed that support his findings and opinions, including his findings that Ms. Berger exhibited “full range of motion”. (See Edwards v New York City Transit Authority, 17 AD3d 628 [2d Dept 2005]; Korpalski v Lau, 17 AD3d 536 [2d Dept 2005]; Hanna v Alverado, 16 AD3d 624 [2d Dept 2005]; Nembhard v Delatorre,16 AD3d 390 [2d Dept 20005]; Remekie v Atileh, 6 Misc 3d 134[A], 2005 NY Slip Op 50191[U][App Term, 2d and11th Jud Dists].) Moreover, Dr. Liebman does not describe the significance of the MRI finding of “supraspinatus tendinopathy” in Ms. Berger’s left shoulder.

Under these circumstances, the “presumption of medical necessity which…attaches to [the provider’s] claim forms” (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., 7 Misc 3d at 22-23), in particular that attaches to the treating doctor’s order for additional treatment, is not sufficiently rebutted to establish prima facie that the insurer is entitled to judgment as a matter of law. As in the “threshold” cases, even in the absence of specific, additional evidence of medical necessity, American Transit’s motion must be denied. (See Hanna v Alverado, 16 AD3d 624; Nembhard v Delatorre,16 AD3d 390; Qu v Doshna, 12 AD3d 578 [2d [*5]Dept 2004].)

Plaintiff’s motion for summary judgment is denied. Defendant’s cross-motion for summary judgment is denied.

Defendant shall serve a copy of this order with Notice of Entry upon Plaintiff within 20 days after entry.

August 12, 2005

Judge, Civil Court

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 June 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it 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]). In opposition to the motion, defendant submitted peer reviews asserting a factual basis and medical rationale sufficient to raise a triable issue as to the medical equipment’s medical necessity (Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687[U] [App Term, 2d & 11th Jud Dists]).

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

Golia, J., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o Lacos Moscoso Martinez,

Appellant,

-against-
HEREFORD INSURANCE COMPANY,

Respondent.

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 disagree 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 11, 2005