—[*1]

Motion by the Superintendent of the New York State Insurance Department for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated October 17, 2002, which was determined by decision and order of this Court dated February 2, 2004, and in effect, for clarification of the decision and order of this Court dated February 2, 2004 [4 AD3d 355].

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is, in effect, for clarification of the decision and order of this Court dated February 2, 2004, is granted, the motion is otherwise denied, the decision and order of this Court dated February 2, 2004, in the above-entitled case is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated October 17, 2002, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent [*2]herewith; and it is further,

Ordered that the petitioner shall serve a supplemental notice of petition (see CPLR 305 [a]) and amended petition (see CPLR 3025 [b]) upon the Superintendent of the New York State Insurance Department, in his capacity as Administrator of the New York Public Motor Vehicle Liability Security Fund, joining him as an additional respondent to the proceeding within 30 days after service upon him of a copy of this decision and order.

In July 1998 the respondent, Neville Hamilton, allegedly was injured in a motor vehicle accident involving the proposed additional respondent Jean R. Lazard. At the time, Hamilton was insured by the petitioner, Eagle Insurance Company (hereinafter Eagle). Hamilton’s policy with Eagle provided compulsory uninsured motorist coverage (hereinafter UM coverage) (see Insurance Law § 3420 [f] [1]). However, Hamilton did not purchase supplemental uninsured motorist coverage (hereinafter SUM coverage) from Eagle (see Insurance Law § 3420 [f] [2]; 11 NYCRR 60-2.3). Lazard was insured by the proposed additional respondent Reliance National Indemnity Company (hereinafter Reliance), a Pennsylvania company authorized to sell insurance in New York. After commencing an action against Lazard, Hamilton learned that Lazard’s insurer, Reliance, had been declared insolvent, and its New York assets were in receivership and were being liquidated by the Superintendent of the New York State Insurance Department (hereinafter the Superintendent) pursuant to Insurance Law article 74. Accordingly, Hamilton sent a letter to Reliance via the Superintendent requesting that it appear in the action on behalf of Lazard. In response, Hamilton was sent a copy of a letter sent to Lazard by the Superintendent stating that, although Hamilton’s claim against Lazard was “covered by the New York Public Motor Vehicle Liability Security Fund [hereinafter the PMV Fund] . . . [a]t this time, the PMV Fund is unable to provide either a defense to or indemnification of this claim insofar as the PMV Fund is financially strained.” Thereafter, Hamilton made a demand upon his own insurance company, Eagle, to arbitrate a claim for uninsured motorist benefits pursuant to his policy with Eagle.

Eagle commenced this proceeding for a permanent stay of arbitration, arguing that the record revealed that Lazard’s vehicle was not uninsured at the time of the accident, but rather, was insured by Reliance. In opposition, Hamilton argued that Reliance’s insolvency triggered UM benefits, relying on Insurance Law § 3420 (f) (2) and Regulation 35-D, specifically 11 NYCRR 60-2.3 (f). In reply, Eagle argued that Insurance Law § 3420 (f) (2) and Regulation 35-D were not applicable, as they applied to SUM coverage only, which Hamilton did not purchase. Rather, Eagle asserted, the UM coverage provided to Hamilton was governed by Insurance Law § 3420 (f) (1), which was triggered, inter alia, when “the insurer disclaims liability or denies coverage.” Here, Eagle argued, Reliance neither disclaimed liability nor denied coverage, but rather was insolvent, which did not trigger UM coverage. The Supreme Court, finding that the Lazard vehicle qualified as an uninsured vehicle for purposes of Insurance Law § 3420 (f) (1), denied a stay of arbitration. We reverse and remit the matter for further proceedings.

The issues raised on this appeal implicate the interplay among various statutes, regulations, and case law related to UM coverage. Insurance Law § 3420 (f) (1) mandates that all policies issued or delivered in this state insuring against loss for bodily injury or death arising from a motor vehicle accident must contain a provision providing for UM coverage. Such compulsory UM coverage is triggered, inter alia, where an insured is entitled to recover damages from an insured motor vehicle but “the insurer disclaims liability or denies coverage.” Insurance Law § 3420 (f) (2) requires an insurer to provide, at the option of the insured, the right to purchase supplementary SUM [*3]coverage. The regulations promulgated by the Superintendent concerning SUM coverage, generally referred to as Regulation 35-D, provide that such coverage is triggered, inter alia, by the “insolvency” of the alleged tortfeasor’s insurer (see 11 NYCRR 60.23 [f] [c] [3] [iii]). Since 1958 the Legislature has also provided for a fund, currently known as the PMV Fund, pursuant to article 76 of the Insurance Law. The PMV Fund provides coverage for, inter alia, allowed claims of injured parties that remain unpaid, in whole or in part, due to the insolvency of an insurer (see Insurance Law § 7604). A claim to the fund is made with the Superintendent pursuant to article 74 of the Insurance Law (see Insurance Law art 74; see also Insurance Law §§ 7607, 7608).

In 1977, before the promulgation of Regulation 35-D (which concerns SUM coverage), the Court of Appeals decided State-Wide Ins. Co. v Curry (43 NY2d 298 [1977]). In State-Wide, the appellant Virginia Curry was injured in a motor vehicle accident. After the accident, the insurer of the alleged tortfeasor’s vehicle was declared insolvent and placed in liquidation. Curry proceeded against her own insurer, State-Wide Insurance Co. (hereinafter State-Wide), seeking UM coverage. State-Wide argued that Curry’s remedy was against the PMV Fund. Curry argued that the insolvency of the tortfeasor’s insurer provided her with option of pursuing either the PMV Fund or State-Wide. The Court of Appeals held that, on the facts presented, the insolvency of the alleged tortfeasor’s insurer did not provide Curry with such an option. Rather, the Court held, the statutory coverage mandated by then Insurance Law § 167 (2-a) (currently Insurance Law § 3420 [f] [1]—i.e., UM coverage) “presupposes that no other liability coverage exists to compensate innocent victims of motor vehicle accidents” (id. at 302). In the case before it, the Court noted, there was such other coverage, i.e., the PMV Fund. Thus, the Court held, “there [was] no need to protect such injured person under the Indemnification Endorsement [UM coverage], since compensation is otherwise available” (id.; see also Matter of Union Indem. Ins. Co. of N.Y., 92 NY2d 107, 113 [1998]). Furthermore, the State-Wide Court noted, the language of then-subdivision 2-a of Insurance Law § 167 [currently Insurance Law § 3420 (f) (1)] was triggered “where the insurer disclaims liability or denies coverage” (State Wide Ins. v Curry, supra at 303). The Court held that the insolvent insurer fit “neither of these categories” (id. at 303). Rather, while that insurer had become insolvent after the accident, “the insurance policy itself survived, and the obligations owed its insured were assumed by the [PMV Fund]” (id. at 303). Thus, the Court concluded, the alleged tortfeasor’s vehicle “was neither ‘an uninsured motor vehicle’ nor ‘an insured vehicle where the insurer disclaim[ed] liability or denie[d] coverage’ within the meaning of subdivision 2-a of section 167 of the Insurance Law [currently Insurance Law § 3420 (f) (1)]” (id. at 303).

The Court of Appeals found its conclusion bolstered by the legislative history of Insurance Law § 167, the purpose of which was to ” ‘close the gaps . . . with respect to assuring payment of compensation to innocent victims of motor vehicle accidents’ ” (id. at 303, quoting NY Legis Ann, 1958, p 299). The Court stated that “surely the Legislature did not intend to provide another remedy for those insured by insolvent domestic insurers, where, due to [the PMV Fund], no gap had existed as to assuring compensation to such victims for many years” (id.). Finally, the State-Wide Court noted, the Appellate Divisions, First and Third Departments, when confronted with similar issues, had arrived at a different interpretation of Insurance Law § 167. In Matter of Taub (Motor Veh. Acc. Indem. Corp.) (31 AD2d 378, 381 [1969]), the Appellate Division, First Department, held that the insolvency of the alleged tortfeasor’s insurer after the underlying accident “was tantamount to a disclaimer of liability, or denial of coverage.” In Matter of Travis (General Acc. Group) (31 AD2d 20 [1968]), the Appellate Division, Third Department, reached a “like result” when the alleged tortfeasor’s insurer was declared insolvent before the accident. The State-Wide Court held that while both cases “expressed an overly broad interpretation of subdivision 2-a of section 167,” both were correctly decided on [*4]their facts because in each case the alleged tortfeasor’s insurer had not been licensed to do business in New York and, therefore, had not contributed to the PMV Fund (State Wide Ins. v Curry, supra at 304). Thus, payment from the PMV Fund was not available.

The distinction to be drawn between UM coverage and SUM coverage, in light of the language of the various statutes and regulations, and implied by the decision in State-Wide, was made manifest in a decision of this Court after the enactment of Regulation 35-D, dealing with SUM coverage. In American Mfrs. Mut. Ins. Co. v Morgan (296 AD2d 491 [2002]), the alleged tortfeasor’s insurer had been declared insolvent after an underlying motor vehicle accident and was in liquidation. The insured, Karen Morgan, who had purchased SUM coverage from her own insurer, the petitioner American Manufacturers Mutual Insurance Company (hereinafter American Manufacturers), filed a claim for such coverage and demanded arbitration. American Manufacturers sought a permanent stay, arguing that because the alleged tortfeasor’s insurer had paid into the PMV Fund, Morgan’s recourse was against the fund. This Court held that, given the express language of Regulation 35-D (which expressly references insolvency), and the “greater breadth of SUM coverage,” Morgan was entitled to seek SUM coverage from American Manufacturers based on the insolvency of the alleged tortfeasor’s insurer, and need not pursue the PMV Fund (American Mfrs. Mut. Ins. Co. v Morgan, supra at 494; see Matter of Eagle Ins. Co. v St. Julian, 297 AD2d 737 [2002]).

Here, because Hamilton purchased UM coverage only from his insurer (Eagle), and the alleged tortfeasor’s now insolvent insurer (Reliance) paid into the PMV Fund, Hamilton’s recourse is not against Eagle for UM coverage, but against the PMV Fund (see State-Wide Ins. Co. v Curry, supra; Eagle Ins. Co. v St. Julian, supra; American Mfrs. Mut. Ins. Co. v Morgan, supra). However, this is not to say that under no circumstances will Hamilton be entitled to UM coverage from Eagle. Rather, resolution of this issue turns on a question not expressly answered by the analysis, supra, to wit: What is to occur if the Superintendent, as administrator of the PMV Fund, denies Hamilton recovery from the fund. That is, whether this would be a denial of coverage within the meaning of Insurance Law § 3420 (f) (1), thereby triggering Hamilton’s right to UM coverage from Eagle. Resolution of this question implicates the statutory scheme concerning the PMV Fund and its place in the highly regulated area of no-fault benefits. Whether this question need be reached turns on the threshold factual issue of whether coverage from the PMV Fund is being denied. The only evidence in the record concerning this issue—the letter from the Superintendent, carbon copied to Hamilton, stating that coverage from the PMV Fund was being denied “at this time” due to “financial strain,” is wholly insufficient. Given this threshold factual issue, and the potentially broad significance of resolution of the question of whether the denial of recovery from the PMV Fund is a denial of coverage within the meaning of Insurance Law § 3420 (f) (1), these matters are best determined in the first instance by the Supreme Court, on a more fully developed record and after joinder of the Superintendent. Ritter, J.P., Florio, S. Miller and Luciano, JJ., concur.

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In an action to recover no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated February 10, 2004, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and Insurance Law § 5106 (c).

Ordered that the order is affirmed, with costs.

The plaintiff contends that he was entitled to a trial de novo of his no-fault claim pursuant to Insurance Law § 5106 (c) because the amount in controversy was greater than $5,000. We disagree. The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater. Here, the master arbitrator made no monetary award and the statutory predicate for a de novo court adjudication was not satisfied (see General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424 [1989]; Harley v United Servs. Automobile Assn., 191 AD2d 768, 769 [1993]; see also Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573 [1987]).

The plaintiff contends, in the alternative, that the statute is unconstitutional because the $5,000 threshold limits the ability of claimants to obtain de novo court adjudication while allowing insurance companies readier access to the judicial forum. We disagree. Insurance Law § 5106 (c) does not violate due process and equal protection because the classification it creates between claimants and insurance carriers is reasonably related to a legitimate state interest and has a rational basis (see Booth v Hartford Ins. Group, 531 F Supp 481 [1982]; Country-Wide Ins. Co. v Harnett, [*2]426 F Supp 1030 [1977]; see also City of New Orleans v Dukes, 427 US 297 [1976]). Krausman, J.P., Mastro, Rivera and Skelos, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, March 10, 2005

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn, for plaintiff. Bruno, Gerbino & Soriano LLP, Melville, for defendant.

OPINION OF THE COURT

Arlene P. Bluth, J.

Plaintiff moves for summary judgment pursuant to CPLR 3212. For the following reasons, the plaintiff’s motion is denied. [*2]

In this action, plaintiff Vista Surgical Supplies, Inc. seeks to recover first-party no-fault benefits in the amount of $1,282, plus statutory fees, interest, costs, and attorneys’ fees, for medical supplies it allegedly furnished to plaintiff’s assignor, Julian Rosario, on February 5, 2003. Plaintiff argues that defendant failed to timely deny its no-fault claims.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986].) The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts. (See CPLR 3212 [b].) If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied. (See Rebecchi v Whitmore, 172 AD2d 600 [2d Dept 1991].)

In a no-fault context, a health care provider establishes prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that it is an assignee under a properly executed assignment, that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was mailed to and received by the defendant, and that payment of no-fault benefits is overdue. (See 11 NYCRR 65-3.11 [b] [2]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Triboro Chiropractic & Acupuncture P.L.L.C. v Electric Ins. Co., 2 Misc 3d 135[A], 2004 NY Slip Op 50215[U] [App Term, 2d & 11th Jud Dists 2004].) If the plaintiff makes out its prima facie case, the burden then shifts to the defendant.

In support of the motion, plaintiff submits the affirmation of its attorney and affidavit from an officer of plaintiff. It is axiomatic that a party’s attorney “who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment.” (Peters v City of New York, 5 Misc 3d 1020[A], 2004 NY Slip Op 51469, *8 [Sup Ct, Kings County 2004]; see also Zuckerman v City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply Inc. v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists 2004]; Lupinsky v Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002].)

The affidavit of Igor Kats, an officer of Vista Surgical Supplies, is also insufficient. Mr. Kats’ affidavit contains no recitations of fact particular to this case, such as the dates of service, the supplies allegedly provided, dates of mailing or amount outstanding. Rather, Mr. Kats’ affidavit contains boilerplate language^[FN*] about the authenticity of nonspecified bills and assignment from a nonspecified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date. Instead of setting forth the facts in admissible form, Mr. Kats merely adopts the statements of plaintiff’s counsel as contained in the attorney’s affirmation. By adopting the contents of an affirmation which has no probative value, the plaintiff’s affidavit—itself barren of material facts—is also of no probative value.

Moreover, in his affidavit, Mr. Kats declares that “[t]he above is the same testimony that I would present to this court at trial.” If it came to that, plaintiff would lose at trial for failure to set forth a prima facie case. At trial, Mr. Kats would not be able to say, “I adopt whatever my attorney said.”

Because plaintiff’s affidavit does not satisfy CPLR 3212 (b), plaintiff is not entitled to summary judgment. Accordingly, plaintiff’s motion is denied.

Footnotes

Footnote *: Indeed, Mr. Kats’ affidavit is identical to the one he submitted in at least two completely different cases (under Index Nos. 064662/04 and 056074/04), decided simultaneously herewith.

[*1]

Civil Court of the City of New York, Kings County, March 9, 2005

APPEARANCES OF COUNSEL

Harvey L. Woll for plaintiffs. Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP (Thomas J. Nemia of counsel), for defendant.

OPINION OF THE COURT

Jack M. Battaglia, J.

In this consolidated action for first-party no-fault benefits, five providers of physical therapy, chiropractic, acupuncture, or transportation services seek payment from State Farm Mutual Automobile Insurance Company for services provided to six persons allegedly injured in automobile collisions. There are 197 separate bills, which total $78,987.74.

The only issue for trial was whether the alleged injuries arose from “staged accidents.” In two of the four consolidated cases, plaintiffs’ motions for summary judgment were denied, and the denials were upheld on appeal. (See A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 133[A], 2004 NY Slip Op 51432[U] [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., App Term, 2d & 11th Jud Dists, June 22, 2004, No. 2003-1057 KC.) As held by Appellate Term for the Second and Eleventh Judicial Districts in one of the cases, the affidavit of State Farm’s investigator “set forth sufficient facts to demonstrate that [State Farm] possessed a ‘founded belief that the alleged injury does not arise out of an insured accident.’ ” (Id. at SM-2, quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997].) The holding of Appellate Term for the Ninth and Tenth Judicial Districts in the other case is to the same effect. (See A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 2004 NY Slip Op 51432[U], *2.)

In Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]), the Court [*2]of Appeals held that “an insurer, despite its failure to reject a claim within the 30-day period” prescribed by the governing statute and regulations, “may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” (Id. at 199 [emphasis added].) “[T]he preclusion remedy does not apply to a defense of no coverage at all.” (Id. at 202.)

“A deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident.” (State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2d Dept 2003]; see also Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 751-752 [2d Dept 2002].) Indeed, when a collision is “an intentional act, not an accident,” there is no coverage (see Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 928 [2d Dept 2003]), “regardless of whether the intentional collision was motivated by fraud or malice” (see Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522, 523 [2d Dept 2003]).

The insurer “has the burden to come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its] belief’ ” that there is no coverage. (See Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [2d Dept 1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see also Hospital for Joint Diseases v Hertz Corp., 9 AD3d 392, 392 [2d Dept 2004]; St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743, 744 [2d Dept 2003].)

It is not easy for this court to know what to make of the “fact or founded belief” formulation in Chubb. It would seem that either there is coverage, or there is not; that either there was a “staged accident,” or there was not. We generally do not relieve a contracting party from performance under the contract because the party “believes” that performance is not required, whether “founded” or not, if in “fact” performance is required. The formulation does, however, reflect that a determination as to coverage is often a function of circumstance and inference, and the formulation does fairly reflect the evidentiary burdens when there is a dispute as to coverage.

“An insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and also that the loss was a covered event within the terms of the policy.” (Gongolewski v Travelers Ins. Co., 252 AD2d 569, 569 [2d Dept 1998], quoting Vasile v Hartford Acc. & Indem. Co., 213 AD2d 541, 541 [2d Dept 1995]; see also Dato Jewelry v Western Alliance Ins. Co., 238 AD2d 193, 193 [1st Dept 1997].) Whatever the risk or loss covered, it has long been the insured’s burden to prove coverage under the policy. (See Lavine v Indemnity Ins. Co., 260 NY 399, 410 [1933]; Whitlatch v Fidelity & Cas. Co. of N.Y., 149 NY 45, 48 [1896]; Zuckerberg v Blue Cross & Blue Shield of Greater N.Y., 108 AD2d 56, 61 [2d Dept 1985], affd 67 NY2d 688 [1986]; Washburn v Wholehealth Ins. Network, 196 AD2d 813, 815 [2d Dept 1993]; Glogvics v Preferred Acc. Ins. Co. of N.Y., 245 App Div 817, 817 [2d Dept 1935]; Bracey v Metropolitan Life Ins. Co., 54 Misc 2d 175, 180 [App Term, 2d Dept 1967].) [*3]

In an action for first-party no-fault benefits, “a provider’s proof of a properly-completed claim makes out a prima facie case” (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]). To adopt Appellate Term’s conception in the related area of medical necessity, there is a “presumption of [coverage] which attaches to the claim form.” (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004].)

As stated, the insurer bears the burden of coming forward with admissible evidence of “the fact” of lack of coverage or of the “found[ation for its] belief” that there is no coverage. (See Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19-20.) But the burden of coming forward with evidence is not the burden of persuasion. (See McClelland v Climax Hosiery Mills, 252 NY 347, 358 [1930] [Cardozo, Ch. J., concurring].) “Shifting the burden of explanation or of going on with the case does not shift the burden of proof.” (Plumb v Richmond Light & R.R. Co., 233 NY 285, 288 [1922]; Matter of Philip M., 82 NY2d 238, 244 [1993].)

The burden of persuasion stays with the plaintiff, and if the insurer carries its burden of coming forward, “plaintiff must rebut it or succumb.” (See Baumann v Long Is. R.R., 110 AD2d 739, 741 [2d Dept 1985].) Appellate Term appears to have recognized these evidentiary burdens, and their consequences, again in the context of medical necessity.

“[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. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U], *2 [App Term, 2d & 11th Jud Dists 2004].)

In this action, the only witness at trial (other than a witness to allow State Farm to attempt to make an evidentiary record as to a rejected defense) was Robert Battista, who is employed as an investigator in State Farm’s Special Investigative Unit. Mr. Battista provided the affidavits submitted on the motions for summary judgment that Appellate Term for both the Second and Eleventh Judicial Districts and for the Ninth and Tenth Judicial Districts found “sufficient . . . to demonstrate that [State Farm] possessed a ‘founded belief’ ” that the “accidents” here were “staged.” (See A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., June 22, 2004, No. 2003-1057 KC, at SM-2.)

Mr. Battista’s testimony at trial essentially tracked the affidavits submitted on the [*4]summary judgment motions, and it may be that Appellate Term has, in effect, determined that his testimony is sufficient to carry State Farm’s burden of coming forward on the question of coverage, with the result that plaintiffs were then required to rebut State Farm’s “founded belief” in order to sustain their burden of persuasion on coverage. “A denial of a motion for summary judgment is not necessarily . . . the law of the case . . . that will be established at trial.” (Sackman-Gilliland Corp. v Senator Holding Corp., 43 AD2d 948, 949 [2d Dept 1974] [emphasis added].) After all, “the evidence may be different at trial.” (See S.L. Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d 348, 349 [2d Dept 2004].)

That does not mean that there is no place for the law of the case doctrine after denial of a summary judgment motion. (See Seneca Trucking Co. v D.H. Overmeyer Co., 36 AD2d 894, 894 [4th Dept 1971].) Here, two appellate panels and two trial court judges have concluded, based upon evidence virtually the same as that introduced at this trial, that State Farm had a “founded belief” that the “accidents” were “staged.” The avoidance of “inefficiency and disorder” that is the goal of the law of the case doctrine (see People v Evans, 94 NY2d 499, 503-504 [2000]) would be served by this court’s adoption of the conclusions reached by those who have already considered this case.

The court recognizes that there is case law that would suggest a different allocation of evidentiary burdens for allegations of a “staged accident.” “In an action to recover the proceeds of a fire insurance policy, it is the insurer’s burden to establish the affirmative defense of arson,” and the “measure of persuasion is that of clear and convincing evidence.” (Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255, 256-257 [2d Dept 1983]; see also 3910 Super K v Pennsylvania Lumbermens Mut. Ins. Co., 219 AD2d 589, 589-590 [2d Dept 1995].) There are important differences, however, between the “affirmative defense of arson” and the issue of coverage for an intentional collision.

The arson defense requires proof of both the incendiary nature of the fire and that it was set by or with the consent of the insured. (See Chenango Mut. Ins. Co. v Charles, 235 AD2d 667, 668-669 [3d Dept 1997]; Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 45 [2d Dept 1987].) That is why proof of financial motive is so important in arson cases. (See Schlegel v Aetna Cas. & Sur. Co., 282 AD2d 516, 517 [2d Dept 2001]; Chenango Mut. Ins. Co. v Charles, 235 AD2d at 669.) It is “because arson is but one form of fraud in making a claim under a policy” that “an inference of arson must be strong and almost inevitable.” (Hutt v Lumbermens Mut. Cas. Co., 95 AD2d at 256-257 [internal quotations marks, brackets and citations omitted].)

With an alleged “staged accident” or other intentional collision, it is the intent that is crucial, not the motive, financial or otherwise, and even the innocent insured is deprived of coverage. (See McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d 35 [4th Dept 1962], affd 12 NY2d 922 [1963]; Matter of Progressive Northwestern Ins. Co. v Van Dina, 282 AD2d 680 [2d Dept 2001]; Matter of Aetna Cas. & Sur. Co. v Perry, 220 AD2d 497 [2d Dept 1995].) The appellate decisions dealing with intentional collisions, whether “motivated by fraud or malice” (see Government Empls. Ins. Co. v Shaulskaya, 302 AD2d at 523), characterize the insurer’s “defense” as lack of coverage; there is no indication that the evidentiary burdens and “measure of persuasion” (see Hutt v Lumbermens Mut. Cas. Co., 95 AD2d at 256-257) are to differ when an alleged intentional collision might be motivated by fraud.

Similarly, in Dato Jewelry v Western Alliance Ins. Co. (238 AD2d 193 [1st Dept 1997]), where the insurer was estopped from asserting a “dishonest theft” exclusion from coverage for an alleged jewelry robbery, because the insurer did not deny coverage on that basis (see id. at 193), the jury was properly charged that “the burden was on the insured to prove the robbery was legitimate rather than on the insurer to prove it was staged” (see id.). Generally, an insurer bears the burden of proving an exclusion from coverage. (See Neuwirth v Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn., 62 NY2d 718, 719 [1984]; Utica Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 103 AD2d 60, 63 [2d Dept 1984].) Lack of coverage is not an exclusion. (See State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d at 491-492.)

Arson may be established by circumstantial evidence (see Stone v Continental Ins. Co., 234 AD2d 282, 283 [2d Dept 1996]), as may fraud generally (see Booth v Bunce, 33 NY 139, 159 [1865]; Hickok v Cowperthwait, 134 App Div 617, 618 [2d Dept 1909]). “Circumstances insignificant in themselves may acquire probative force as links in the chain of circumstantial proof.” (Van Iderstine Co. v Barnet Leather Co., 242 NY 425, 435 [1926].) It may be that in a case like this, where the only admissible evidence on whether the collision was intentional is that submitted by the insurer, the evidentiary burdens and standard of proof will not determine the result.

The court recognizes, however, that some of the information that Mr. Battista relied upon in his affidavits was hearsay that was not rendered admissible by appropriate foundation, and that those opposing a motion for summary judgment are, within limits, permitted to rely on otherwise inadmissible information. (See Phillips v Kantor & Co., 31 NY2d 307, 311-312 [1972]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453, 453 [2d Dept 2000]; Chubb & Son v Riverside Tower Parking Corp., 267 AD2d 128, 128 [1st Dept 1999].) The Appellate Term opinions here do not specify the information that the respective panels found admissible and sufficient and the information, if any, that was not considered. It is this court’s view that, even without the inadmissible information that was submitted on the motions, State Farm sufficiently established at trial its founded belief that there is no coverage.

Three of plaintiffs’ assignors—Cindy Toledo, Kimberly Toledo and Joseph Murray—were allegedly injured on December 7, 2001 when the vehicle in which they were riding, a 1987 Pontiac Bonneville, was rear-ended by a 1987 Chevy Caprice. The vehicle in which plaintiffs’ assignors were riding was owned by Marianna Manoylo, and was insured by State Farm. Coverage for the Manoylo vehicle was obtained pursuant to the assigned risk program. Although the policy was written in May 2001, it was changed only four days before the collision to cover Ms. Manoylo’s Bonneville. The coverage was canceled less than two months after the collision [*5]because of nonpayment of the premium.

The other three of plaintiffs’ assignors—Yuriy Ozerov, Nathan Shylakh and Marlen Belyavsky—were allegedly injured on February 10, 2002 when the vehicle in which they were riding, a 1991 Ford Tempo, was rear-ended by a 1989 Plymouth Voyager. The vehicle in which plaintiffs’ assignors were riding was owned by Mr. Ozerov, and was insured by State Farm. Coverage for the Ozerov vehicle was obtained pursuant to the assigned risk program approximately one month before the collision, and was canceled one month after the collision because of nonpayment of the premium.

In addition to the similarities between the December 2001 collision and the February 2002 collision that are apparent from the above recitation, two of the persons riding in the State Farm-insured vehicle at the time of the February 2002 collision had relationships with persons who were involved in the December 2001 collision. Marlen Belyavsky’s mother is Svetlana Manoylo, and they both resided with Marianna Manoylo. And Nathan Shylakh resided with Oksana Shylakh, who was a passenger in the Chevy Caprice that rear-ended the Manoylo vehicle. Moreover, Nathan Shylakh and Yuriy Ozerov, the owner and driver of the State Farm-insured vehicle, were involved in another collision approximately one year earlier.

State Farm obtained examinations under oath of Cindy Toledo and Kimberly Toledo (Dec. 2001 collision) and of Yuriy Ozerov, Nathan Shylakh and Marlen Belyavsky, the latter with his mother, Svetlana Manoylo (Feb. 2002 collision). At the examinations, all three of the assignors who were involved in the February 2002 collision purported to withdraw the claims that had been submitted to State Farm, an effort that was ineffective. (See 11 NYCRR 65-3.11 [d].)

In addition to the circumstances recited so far, based upon evidence admitted at trial, in disclaiming coverage State Farm relied on other circumstances, based upon documents not properly admitted into evidence. State Farm pointed to discrepancies and other problems revealed by the transcripts of the examinations under oath of Cindy Toledo and Kimberly Toledo, but State Farm did not lay any foundation or make any other showing that would support the admissibility of the transcripts.

State Farm also pointed to information obtained from the National Insurance Crime Bureau (NICB), which serves as a clearinghouse of sorts for data from insurance companies concerning claims made against all types of policies. Certainly, such “loss histories” were material to the issues to be determined. (See Rickert v Travelers Ins. Co., 159 AD2d 758, 760 [3d Dept 1990].) But State Farm did not lay any foundation or make any other showing that would support the admissibility of this NICB information. State Farm did cite People v Veloz (273 AD2d 259 [2d Dept 2000]) as authority for the admissibility of NICB information, but the Court there merely stated that “the National Insurance Crime Bureau records were properly admitted into evidence as business records,” without any description of the “records” admitted or of any foundation that may have been laid for admittance (see id. at 259). [*6]

In the interest of completeness, the court notes that the NICB information offered by State Farm indicated a significant insurance claim history for Marianna Manoylo, Svetlana Manoylo and Oksana Shylakh. The information also revealed that the owner and driver of the second vehicle involved in the February 2002 collision, Ediberto Olavarria, had been involved in a collision on December 29, 2001 together with a David Fich, and that Mr. Fich had been in a collision on April 30, 2001 together with Svetlana Manoylo. Again, this information is inadmissible hearsay.

In addition to the inferences arising from the facts and circumstances related to the collisions, State Farm argues that the purported withdrawal of claims by the assignors involved in the February 2002 collision evidences a “consciousness of guilt” that constitutes an “admission by conduct,” at least as to those assignors. (See Nowack v Metropolitan St. Ry. Co., 166 NY 433, 437, 439, 442 [1901]; Kamenov v Northern Assur. Co. of Am., 259 AD2d 958, 959 [4th Dept 1999]; Bazza v Banscher, 143 AD2d 715, 716 [2d Dept 1988].) Since State Farm is not offering the purported withdrawal to divest plaintiffs of their title to the claims sued upon (see Tierney v Fitzpatrick, 195 NY 433, 434 [1909]; Dinnebeil v Ringer, 101 Misc 658, 663-664 [App Term, 1st Dept 1917]), the inference that arises from the assignors’ conduct appears to be admissible against plaintiffs (see Leon Sylvester, Inc. v Aetna Cas. & Sur. Co., 227 AD2d 212 [1st Dept 1996]; see also Kamenov v Northern Assur. Co. of Am., 259 AD2d at 958-959). Since the withdrawal of the claims, however, is not unequivocally referable to “guilt,” the inference here has some, but not substantial, probative value.

Although an insurer’s “founded belief” that a collision was “staged” cannot be based upon “unsubstantiated hypotheses and suppositions” (see A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9-10 [App Term, 2d Dept 2003]; Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1-2 [App Term, 2d & 11th Jud Dists 2004]), of necessity in most cases it will be established by circumstantial evidence (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d at 491; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 83, 84-85 [App Term, 9th & 10th Jud Dists 2004]; Matter of Progressive County Mut. Ins. Co. [McNeil], 4 Misc 3d 1022[A], 2004 NY Slip Op 50998[U], *2 [Sup Ct, Nassau County 2004]; Matter of National Grange Mut. Ins. Co. v Vitebskaya, 1 Misc 3d 774, 775-777 [Sup Ct, Kings County 2003]). Mr. Battista testified that the facts and circumstances that he relied upon in reaching his conclusion that the two collisions here were “staged” are recognized as probative in the field of insurance fraud investigation, but State Farm made no attempt to introduce any documents or other evidence of that.

Mr. Battista’s trained opinion is entitled to some weight (see Matter of Travelers Indem. Co. v Morales, 188 AD2d 350, 351 [1st Dept 1992]), but, at least in this action, the strength of the inferences must be measured by “common sense” and the “logic of common experience itself” (see Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]). So measured, the court considers the evidence sufficient to carry State Farm’s burden of coming forward with a “founded belief” that the collisions were “staged.” [*7]

This conclusion is buttressed by the failure of plaintiffs to call any of the assignors to testify at trial. The assignors would have been expected to give testimony that was material and noncumulative, and, most importantly, testimony that would be favorable to plaintiffs. (See People v Savinon, 100 NY2d 192, 197 [2003].) Plaintiffs made no showing that any of the assignors was “unavailable,” either in fact or on a plea of privilege (see id. at 197-199), and no explanation was offered for their not having been subpoenaed to testify (see id. at 199-200). It may be that even “Herculean lengths” (see id. at 199) would not have produced any of the assignors in court, but on this record the court takes a “permissive adverse inference” (see id. at 201) that they would not have helped plaintiffs’ cause.

Plaintiffs introduced no evidence to rebut the inferences supporting a conclusion that the State Farm policies provide no coverage for the December 2001 and February 2002 collisions. Any statements by the drivers that the investigating officers noted in the respective police accident reports were, in the context of this action, inadmissible to establish that an “accident” occurred. (See Cover v Cohen, 61 NY2d 261, 274 [1984]; Bates v Yasin, 13 AD3d 474, 474 [2d Dept 2004]; Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509, 510 [2d Dept 1999].)

Counsel ably attempted, by cross-examination of Mr. Battista and argument, to weaken the strength of State Farm’s showing. One may accept, for example, that older vehicles will often be insured pursuant to the assigned risk program. And one could agree that it is more likely for an older vehicle damaged in a collision not to be repaired, and for its insurance to be allowed to lapse. But, here, we have two collisions that occurred within a short window of insurance coverage, with four vehicles each more than 10 years old, and relationships linking an owner or at least one occupant of three of the vehicles. In each of the collisions, moreover, the State Farm vehicle was rear-ended when stopped, and, according to the police accident reports, the drivers of the vehicles that hit them were particularly accommodating in acknowledging fault.

The court is mindful that there was no direct evidence that any of the plaintiffs here knowingly participated in any insurance fraud scheme, or even suspected one. But “[w]here a loss is caused by the fraud of a third party, in determining the liability as between two innocent parties, the loss should fall on the one who enabled the fraud to be committed.” (Fidelity Natl. Tit. Ins. Co. of N.Y. v Consumer Home Mtge., 272 AD2d 512, 514 [2d Dept 2000].) Although any fraudulent conduct of the assignors might not be “properly imputed” to plaintiffs (see id.; see also A&S Med. v Allstate Ins. Co., 196 Misc 2d 322, 324 [App Term, 1st Dept 2003], affd 15 AD3d 170 [1st Dept 2005]), plaintiffs would be among the “primary beneficiaries of [the] fraud” (see Chubb & Son v Consoli, 283 AD2d 297, 299 [1st Dept 2001]). And, generally, “[a]n assignee stands in the shoes of the assignor” (see Arena Constr. Co. v J. Sackaris & Sons, 282 AD2d 489, 489 [2d Dept 2001]).

Plaintiffs, moreover, have remedies available to them that are not available to the millions of New York motorists that pay the additional premium costs that the Court of Appeals has identified as resulting from automobile insurance fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 [*8]NY2d 854, 861 [2003]). Service providers may explicitly include in their assignment documents provision for recourse against the assignor if the insurer does not pay because of lack of coverage, and the providers may bring an assignor into any action against the carrier when the carrier defends nonpayment on the ground of lack of coverage.

Plaintiffs have failed to persuade this court that the State Farm policies provide coverage for the claims at issue.

Judgment awarded to State Farm, dismissing the claims.

Supreme Court, Queens County

8934 2004

Jaime A. Rios, J.

By order dated November 23, 2004 this court (Rios, J.) determined, inter alia, that the petitioner Government Employees Insurance Company (Geico) was aware of the respondents’ uninsured motorist (UM) claim in June, 2003, yet failed to request discovery for 10 months, until after the respondents demanded arbitration. As a result, the court denied Geico’s petition to permanently or temporarily stay the UM arbitration demanded by the respondents pending their provision of such discovery. [*2]

Geico moves to reargue asserting, inter alia, that: (1) upon the receipt of the respondents’ application for no-fault benefits, it sent a letter dated June 24, 2003, reserving its right to discovery; (2) although the respondents filed a Notice of Intention to Make Claim dated June 10, 2003, that notice did not indicate that the respondents intended to make a claim for UM benefits and was served with no-fault paperwork; (3) the respondents never made a formal claim for UM benefits until they demanded arbitration by demand dated March 16, 2004; (4) notice of the no-fault claim did not constitute notice of the UM claim; (5) as a result, in connection with the UM claim, it timely requested discovery by letter dated April 5, 2004; and, (6) its policy obligates the respondents to provide discovery prior to arbitration.

The respondents oppose the motion contending, inter alia, that they served a notice of intention to make a claim for UM benefits in June, 2003, and Geico failed to request any discovery until after they demanded arbitration.

The respondents’ Notice of Intention to Make Claim, sworn to on June 10, 2003, appears to be on a form provided by Geico. Section 10 of that form asks the person making a claim to indicate the reason for the application. The reasons listed on the form are: “Uninsured Car,” “Denial of Coverage” “Disclaimer,” “Stolen Car,” “Unidentified Car,” “Uninsured Automobile Endorsement on your Policy” and “Qualified Person.”

The respondents placed an “x” mark next to each such listed reason, and returned the Notice of Intention to Make Claim with the no-fault authorizations requested by Geico. In response, by letter dated June 24, 2003, Geico advised the respondents’ attorney that because it believed the tortfeasor carried a policy of liability insurance with Allstate on the date of the accident, “it does not appear that your client has a valid claim for uninsured motorist benefits at this time.”

In the same letter, Geico stated that if the respondents obtained proof that the tortfeasor was uninsured, they should provide Geico with documentation to substantiate the UM claim. Geico added that once it confirmed the validity of the respondents’ SUM or UM claim, it might require them to provide certain discovery.

Geico did not request discovery from the respondents for 10 months, until April 5, 2004, after it was served with the respondents ‘ demand for arbitration.

In view of these facts, the court grants the motion to reargue and, upon reargument, adheres to its original determination set forth in the order dated November 23, 2004 (see New York Cent. Mut Fire Ins. Co. v Gershovich, 1 AD3d 364 [2003]; Matter of Allstate Ins. Co. v Faulk, 250 AD2d 674 [1998]; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623 [1994]; cf. Allstate Ins. Co. v Moya, 288 AD3d 309 [2001]; Metropolitan Prop & Cas. Ins. Co. v Keeney, 241 AD3d 455 [1997]). [*3]

Dated: March 7, 2005

J.S.C.

Civil Court of the City of New York, Kings County

062603/03

Arlene P. Bluth, J.

Upon the foregoing cited papers, defendant moves to vacate and set aside a judgment entered against it on August 12, 2004, to enforce an alleged settlement and discontinuance agreement, and for sanctions. Plaintiff cross-moves for sanctions and costs. For the following reasons, defendant’s motion and plaintiff’s cross-motion are denied. [*2]

The pertinent facts on this motion and cross-motion are as follows: On April 8, 2003, plaintiff Brooklyn Heights Medical, P.C. sued to recover first-party No-Fault benefits in the amount of $4,199.05 plus statutory interest, costs, and attorneys’ fees for healthcare services allegedly rendered to plaintiff’s assignor, Elene Barrow. On May 24, 2004, this Court, in an Order by the Hon. Sylvia Hinds-Radix after oral argument, awarded summary judgment to plaintiff in the amount of $4,199.05 “as set forth in the summons and complaint.” Thereafter, the parties negotiated a settlement of the case for $3,000, apparently to facilitate swifter payment to plaintiff than by execution of the judgment, albeit of a lesser sum. On June 9, 2004, plaintiff’s counsel faxed to defendant’s counsel a typed, unsigned stipulation of settlement and discontinuance. The first page stated: “Please sign for confirmation and fax back to our office ASAP.” The stipulation of discontinuance also provided that if full payment was not made within 30 days, the stipulation would become null and void.

Defendant’s counsel telephoned plaintiff’s counsel requesting that signed stipulations be forwarded. Plaintiff’s counsel informed him that the firm’s policy was to require that the opposing party sign the documents first. On July 8, 2004, plaintiff’s counsel faxed a letter to

defendant’s counsel stating that, although 30 days had passed with no payment on the settlement forthcoming, defendant’s counsel would be given an additional seven days to submit payment and return the signed documents. Otherwise, the letter warned, the settlement would be deemed null and void. Defendant’s counsel did not submit payment or sign the stipulation. Defendant’s counsel claims he faxed a letter to plaintiff’s counsel on July 19, 2004 demanding a signed stipulation; however, the fax report appended to defendant’s exhibit indicates a failed transmission.

Defendant’s attempt to escape the judgment against it by breathing life into an unconsummated settlement has no legal support. The CPLR is clear that “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” CPLR § 2104. Neither plaintiff nor plaintiff’s counsel ever “subscribed” i.e., signed the stipulation at issue. Therefore, plaintiff is not bound by the settlement.

Plaintiff was free to attach any conditions it wished to its settlement offer. Likewise, defendant was free to reject the offer based on objections to any of plaintiff’s terms. By failing to sign the stipulation and forward payment thereunder, defendant effectively rejected plaintiff’s offer, and allowed it to lapse on its terms.^[FN1] The case law cited by defendant is inapposite. Although detrimental reliance on an oral stipulation may preclude the application of CPLR [*3]

§ 2104, that exception does not apply on these facts. See La Marque v. North Shore Univ. Hosp., 120 AD2d 572, 573 [2nd Dept 1986].

Accordingly, defendant’s motion to vacate the judgment against it and enforce the settlement is denied. Because the Court does not find that either party acted in bad faith, defendant’s motion for sanctions and plaintiff’s cross-motion for sanctions and costs are both denied.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

Footnotes

Footnote 1: The Court notes that if defendant’s counsel would have in fact signed and returned the stipulation, it would have been binding on plaintiff even without signature by plaintiff or its counsel. See Stefaniw v. Cerrone, 130 AD2d 483 [2nd Dept 1987].

Civil Court of the City of New York, Kings County

035013/04

Arlene P. Bluth, J.

Upon the foregoing cited papers, plaintiff moves for summary judgment pursuant to CPLR § 3212, and defendant cross-moves to compel depositions of plaintiff, plaintiff’s assignor, and plaintiff’s treating physicians pursuant to CPLR § 3124 and 3126. For the following reasons, plaintiff’s motion is granted, and defendant’s motion [*2]is denied as moot.^[FN1]

In this action, plaintiff Vital Points Acupuncture, P.C. seeks to recover first-party No-Fault benefits in the amount of $2,299 plus statutory, interest, costs, and attorneys’ fees, for healthcare services it allegedly rendered to plaintiff’s assignor, Muller Pierre, from May 28, 2003 to August 6, 2003, following an alleged accident on May 16, 2003.

Plaintiff submitted six bills to defendant, all of which were denied. The first four bills, mailed on June 10, 2003; June 25, 2003; July 15, 2003; July 28, 2003; and August 12, 2003, were each denied on August 15, 2003 on the ground that “medical justification ha[d] not been established”since plaintiff’s assignor had failed to appear for two independent medical examinations (IMEs). The last two bills were denied on September 22, 2003, and included an additional ground for denial: a so-called “low impact study” commissioned by the insurer and conducted on August 26, 2003, which found that the extent of injuries alleged could not have been caused by the accident.

To establish a prima facie entitlement to summary judgment as a matter of law, a plaintiff healthcare provider must submit proof in admissible form demonstrating that it is an assignee under a properly executed assignment, that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was mailed to and received by the defendant, and that payment of no-fault benefits is overdue. See NYCRR 65-3.11(b)(2); Mary Immaculate Hosp. v. Allstate Ins. Co. 5 AD3d 742 [2d Dept 2004]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A) [App Term, 2d & 11th Jud Dists 2004]. Plaintiff in this case has done so, thereby shifting the burden to defendant. The alleged defects in plaintiff’s proof of claim and assignment of benefits raised by defendant are without merit because defendant has waived any objections to plaintiff’s proof of claim and assignment form by not requesting verification of either during the prescribed 30-day period. See Park Health Ctr. v. Eveready Ins. Co., 2001 NY Slip Op 40665(U) [App Term, 2d and 11th Jud Dists 2001]; Mt. Sinai Hosp. v. Triboro Coach, 263 AD2d 11 [2d Dept 1999].

Further, defendant’s denials based on Mr. Pierre’s failure to attend IMEs were ineffective because defendant did not comply with the regulations governing requests for additional verification. The regulations treat a request for an IME as a request for additional verification. See 11 NYCRR 65-3.5(c). Thus, the insurer was required to give Mr. Pierre a second opportunity to undergo the requested IMEs by following up with a second verification request within 10 calendar days of the first request. See 11 NYCRR 65-3.6(b).

Irrespective of the untimeliness of its denials, however, defendant has raised a defense of lack of coverage. An insurer may assert at any time that the accident arises from an insurance fraud scheme or that the alleged injury was not caused by an insured incident and is therefore not covered under plaintiff’s policy. Central Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195 [1997]; Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]; Amaze Med. Supply, Inc. v. AIU Ins. Co., 5 Misc 3d 139(A) [App Term, 9th & 10th Jud Dists 2004]; S & M Supply, Inc. v. Nationwide Mut. Ins. Co., 3 Misc 3d 138(A) [App Term, 2nd & 11th Jud Dists 2004]. A defense based upon lack of coverage must be “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” See Central Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997]; see also A.B. Medical Svcs. P.L.L.C. v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 143(A) [App Term, 2d and 11th Jud Dists 2004] .

Defendant bases its lack of coverage defense on the results of a so-called low-impact study which claims to show that the alleged accident could not have caused the injuries allegedly suffered by plaintiff’s assignor. In support of its allegation, defendant submits the sworn affidavit of Alfred Cipriani, an employee of FTI/SEA Consulting Applied Science, the company that conducted the study at defendant’s request. The low-impact study by itself, [*3]however, does not create a triable issue of fraud or lack of coverage. See A.M. Med., P.C. v. New York Cent. Mut. Ins. Co., 2 Misc 3d 918 [Civ Ct, Queens Cty 2004]. Mr. Cipriani’s affidavit does not explain in any detail and in non-technical language how the study was conducted and what the results mean. It does not specify the documents or physical evidence FTI/SEA relied upon, and does not establish any factual basis for the study’s conclusions or why such conclusions are reliable. Mr. Cipriani does not explain how the test was conducted, nor does the affidavit explain how the injuries of plaintiff’s assignor are incompatible with the study results.

Likewise, the affidavit of Justin Barth, a no-fault specialist for the insurer, does not indicate why the insurer believed that the alleged injury did not arise out of an insured incident and decided to commission a low-impact study in this case. Further, it fails to specify whether the alleged fraudulent conduct was a staged accident or the provider’s unilateral scheme to obtain no-fault benefits for unnecessary or excessive medical treatment, the latter being precluded by defendant’s untimely denials. See Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92, [App Term, 2nd Dept 2004].

Therefore, defendant has failed in its opposition papers to allege facts with the requisite particularity to create triable issues of fraud or lack of coverage. See A.B. Medical Services PLLC v. State Farm Mutual Auto Ins. Co., 3 Misc 3d 130(A) [App Term, 2d & 11th Jud Dists 2004]; Amstel Chiropractic P.C. JYQ Acupuncture P.C. v. Omni Indemnity Co., 2 Misc 3d 129 [2d and 11th Jud Dists 2004] (finding that unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of the assignor’s fraud); cf. Ocean Diagnostic Imaging P.C. v. State Farm Mut. Ins. Co., 2004 NY Slip Op 24498 [2d and 11th Jud Dists 2004] (investigator’s affidavit set forth ample facts and founded beliefs to establish the existence of a triable issue of fact as to whether there was a lack of coverage).

Accordingly, plaintiff is awarded summary judgment in the amount of $2,299 plus statutory interest, costs, and attorneys’ fees.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

Footnotes

Footnote 1:This decision is issued in conjunction with this Court’s decision in a companion case, Vital Points Acupuncture, P.C. a/a/o Claudette Pierre v. New York Central Mutual Fire Insurance Company, Index Number 35007/04.

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 (R. Garson, J.), entered March 30, 2004, as denied their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding plaintiff A. B. Medical Services PLLC partial summary judgment in the sum of $14,602.46 on 29 claims, plaintiff D.A.V. Chiropractic P.C. partial summary judgment in the sum of $2,232.58 on 14 claims, and plaintiff Lvov Acupuncture P.C. partial summary judgment in the sum of $6,016.12 on 12 claims, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining three claims; as so modified, affirmed without costs.

Plaintiff health care providers commenced this action to recover first-party no-fault benefits for medical services rendered to their assignors for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $23,214, which was comprised of $14,727.90 in claims (consisting of 30 bills) for A.B. Medical Services PLLC, $2,299 in claims (consisting of 15 bills) for D.A.V. Chiropractic P.C., and $6,186.12 in [*2]claims (consisting of 13 bills) for Lvov Acupuncture P.C. Upon a review of the record, we find that with the exception of three of the 58 claims, plaintiffs established a prima facie entitlement to summary judgment by showing that they submitted claims setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or properly deny 55 of the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Although the 30-day period may be extended by a timely request for verification, a letter which merely informs a claimant that a decision on the claim is delayed pending an investigation, and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period (see Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; see also Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as the letters sent by defendant in the instant case were not requests for verification, they did not operate to toll the 30-day period.

Insofar as the claim denials were based upon “multiple fraud indicators,” defendant neither interposed a defense of fraud in its answer, nor provided in its papers in opposition to plaintiff’s summary judgment motion any support for its allegations of fraud. Moreover, to the extent that some of the claim denials which were timely were based upon lack of medical necessity, they were not supported by a sufficiently detailed factual basis and medical rationale (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the absence of any such support, said defense was waived. Accordingly, with the exception of the three claims set forth below, plaintiffs were entitled to summary judgment.

With respect to the A.B. Medical Services PLLC claim form dated March 4, 2003 for $125.44 for services rendered on February 3, 2003 and February 27, 2003, the D.A.V. Chiropractic P.C. claim form dated March 3, 2003 for $67.40 for services rendered on February 3, 2003 and February 27, 2003, and the Lvov Acupuncture P.C. claim form dated March 5, 2003 for $170 for services rendered on February 3, 2003 and February 27, 2003, summary judgment was properly denied. Plaintiffs did not allege the date that defendant received those claim forms, and failed to submit proof that defendant’s requests for verification and follow-up requests for the “applicant’s completed NF-2” and a “complete narrative report” were complied with. Assuming the verification requests by defendant insurer were timely submitted, it had no obligation to act on the claims until it received the requested verification (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). Absent proof of compliance with the verification requests, plaintiffs cannot be said to have made out a prima facie case upon the instant motion with respect to those three claims (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on the aggregate sum of $22,851.16, that portion [*3]of the claims for which summary judgment is granted, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining three claims.
Decision Date: March 02, 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 (A. Schack, J.), entered November 24, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to dismiss, deemed an appeal from the judgment of the same court entered pursuant thereto on February 10, 2004, awarding plaintiff the principal sum of $3,268.85, plus statutory interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, it moved for summary judgment on the ground that defendant had failed to pay or deny its claims within 30 days of their receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). Plaintiff further alleged that defendant had failed to extend the statutory time period by issuing a timely verification request on the prescribed forms. A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]; see also 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 show the existence of a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant opposed plaintiff’s motion and cross-moved for summary judgment on the ground that it had sent timely letter requests for verification, which tolled the commencement of the 30-day period within which it was obligated to pay or deny the claim. The motion court found in favor of plaintiff, finding that defendant’s verification requests were not made on the prescribed forms, and therefore did not operate to toll the 30-day period.

We disagree with the lower court’s determination that a request for additional verification may not be made by letter and must be made on a prescribed form (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]; see also S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). However, we affirm the order, albeit for reasons other than those stated by the court below, on constraint of Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374 [2001]). The record on appeal in that case establishes that defendant insurer’s employee averred in his affidavit in opposition to plaintiff’s motion for summary judgment that “in the regular course of business at Nationwide, denial letters that are sent to the provider . . . are sent by regular mail on the day that the letter is dated.” Noting that the employee had no personal knowledge that the denial of claim form had been mailed on the date it was issued, the Appellate Division, Second Department, also found that the allegation regarding defendant’s office practices was conclusory and
insufficient to establish that the office followed practices which were geared to ensure the likelihood that denial of claim forms were always properly addressed and mailed on the date issued. Similarly, in the case at bar, the assertion of defendant’s no-fault claims examiner that it was “the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated” was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant’s opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the
30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra). [*3]Accordingly, plaintiff was entitled to summary judgment.
Decision Date: March 02, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (S. Krauss, J.), entered on October 29, 2003, as denied the motion for summary judgment by plaintiff A.B. Medical Services PLLC, seeking the sum of $8,182.88.

Order, insofar as appealed from by A.B. Medical Services PLLC, unanimously modified by providing that, upon searching the record, summary judgment is awarded
to defendant dismissing the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiff Royalton Chiropractic P.C. unanimously dismissed.

Plaintiffs A.B. Medical Services PLLC (A.B. Medical) and Royalton Chiropractic P.C. commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors in the sum of $10,394.42. In their brief on appeal, plaintiffs have withdrawn the claims of Royalton Chiropractic P.C. and have limited the appeal to the claims of A.B. Medical for the sum of $8,182.88.

In support of its motion for summary judgment, A.B. Medical annexed the NF-3 claim forms which identified it as the “provider.” The item calling for information where the “treating provider is different than [the] billing provider,” indicated that the licensed “treating provider” was Desh D. Sachdev, M.D., and that the “business relation” was that of “independent contractor.” In opposition to the motion, defendant argued that it properly denied A.B. Medical’s claims on the ground that the medical provider of services was an independent contractor, and that A.B. Medical was not entitled to recover no-fault benefits as a licensed billing provider of those services.

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek [*2]recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

In the instant action, it is uncontroverted that both A.B. Medical and Dr. Sachdev are licensed providers of health care services, and as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see informal opinions dated February 21, 2001, February 5, 2002, March 11, 2002, and October 21, 2003; see also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444 [Civ Ct, Queens County 2004]) which is entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

Accordingly, the order of the court is hereby modified by providing that, upon searching the record, summary judgment is awarded defendant dismissing the complaint as to plaintiff A.B. Medical.

Inasmuch as no issue is raised by the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 01, 2005