—[*1]In an action to recover no-fault benefits, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated February 10, 2004, as granted the defendant’s motion to vacate a judgment of the same court entered July 11, 2003, upon its failure to appear or answer the complaint.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the motion is denied, and the judgment is reinstated.

It is well settled that a defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The Supreme Court improvidently exercised its discretion in granting the defendant’s motion to vacate the default judgment since the defendant failed to demonstrate a reasonable excuse for its default. Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.

Civil Court of the City of New York, Kings County

55621/03

Delores J. Thomas, J.

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff moves for an order granting it summary judgment.

Plaintiff commenced this action to recover for medical services it provided to five of its assignors pursuant to the no-fault endorsement contained in an automobile policy issued by defendant.

Plaintiff, as to each of its assignors, submits a copy of an assignment of benefits signed by each assignor and a copy of a verification of treatment form for each assignor. With respect to three of the assignors,^[FN1] plaintiff submits a copy of the denial of claim forms issued by [*2]defendant, which on their face indicate receipt by the defendant, and indicate a failure to deny the claim within thirty (30) days of receipt. With respect to the other two assignors,^[FN2] plaintiff submits an affidavit from Fenelly Olivares, in which he claims that he personally mailed the no-fault claims on January 10, 2003, as indicated in the annexed mailing receipt. In addition, plaintiff submits an affidavit from Shiva Hakimian, in which she claims that she is responsible for handling the claims of said two assignors, and that defendant failed to either pay or deny the claims of the two assignors within thirty (30) days of receipt.

A plaintiff establishes a prima facie case for recovery of no-fault benefits by submitting a statutory verification of treatment form showing the amount of the loss (A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 2004 WL 1301910 [AT 2nd & 11th Jud Dists.]; Choicenet Chiropractic, P.C. v. Allstate Insurance Co., 2003 WL 1904296 [AT 2nd & 11th Jud. Dists.]).

In this case, by submitting copies of the assignments, proofs of claim, copies of defendant’s denial of claim forms as proof of mailing of the claims for three of its assignors, and submitting proof of mailing as to the claims for the other two assignors, plaintiff has presented a prima facie case for summary judgment. Defendant’s denial of claim forms which indicate the date the claims were received is sufficient proof of mailing (A.B. Medical Services v. New York Central Mutual Fire Insurance Co., 3 Misc 3d 136 [A], NYLJ, June 2, 2004, p. 27, col. 4, 2004 WL 1302031 [AT 2nd & 11th Jud Dists.]).

In this case, plaintiff seeks reimbursement for services provided to its assignors from October 22, 2002 through January 6, 2003. Plaintiff sent completed verification of treatment forms for said services to defendant in December 2002 and January 2003. With respect to three assignors, the denial of claim forms sent by defendant, after it received the verification of treatment forms, were sent more than thirty (30) days after receipt of the claims. With respect to two of the assignors, there is no indication that any denial of claim forms were sent after receipt of the verification of treatment forms.

In defense of this action, defendant does not rely on the denial of claim forms sent after receipt of the verification of treatment forms, but rather relies on denial of claim forms sent prior to receipt of the subject verification of treatment forms. Prior to receiving the subject verification of treatment forms, defendant sent denial of claim forms with respect to each assignor, indicating that it was the defendant’s position, based on an independent medical examination, that no further medical treatment was necessary for the injuries suffered by each of the assignors. In addition, each denial of claim form provided a cutoff date after which defendant would not pay for medical services. Annexed to each denial of claim form was a report from a doctor which supported the claim that further medical treatment was unnecessary. These types of denials are called blanket disclaimers. It is defendant’s position that once it sent a blanket disclaimer any treatment provided after the cutoff date contained in the denial form would be covered by the blanket disclaimer; so that even if the denial forms sent after receipt of the verification forms were sent more than thirty (30) days after receipt of the claim, they would be timely, based on the earlier blanket disclaimer.

In A & S Medical, P.C. v. Allstate Insurance Co., 196 Misc 2d 322 (AT 1st Dept. 2003), lv to appeal granted NY App. Div. 2004 Lexis 9836 (1st Dept. July 5, 2004), the court, in [*3]passing on blanket disclaimers, stated as follows:

“Although defendant argues otherwise, its belated denial of plaintiff’s no-fault claim is not properly ‘deemed’ timely on the basis of its earlier blanket disclaimer of responsibility to reimburse plaintiff’s assignor for further orthopedic treatment, a disclaimer which predated plaintiff’s rendition of the services billed for and the filing of plaintiff’s claim form. ‘When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate[s] the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.’

The contrary construction urged by defendant effectively authorizing the sub rosa denial of properly filed no-fault claims is inconsistent with the plain language of Insurance Law § 5106(a) and, if adopted, would serve to vitiate the so-called 30-day rule embodied in 11 NYCRR 65.15(g)(3) and to undermine a core objective of the no-fault scheme ‘to provide a tightly timed process of claim, disputation and payment.” (at p. 323-324, citations omitted).

The distinction between A & S Medical and this case is that in A & S Medical the blanket disclaimer was served on the assignor, while in this case, defendant claims that the blanket disclaimers were served on plaintiff, the medical provider. Phillip Asciolla, an employee of defendant, claims that he handles claims for no-fault benefits filed with defendant, and that he has reviewed defendant’s records which indicate that the annexed copies of the blanket disclaimer were mailed to plaintiff with respect to each assignor.

Plaintiff, citing several cases, claims that the affidavit submitted by defendant’s employee is not sufficient to prove that the blanket disclaimers were mailed. In the cases cited by plaintiff, the plaintiffs in those cases submitted evidence of the defendant’s failure to deny the claim within thirty (30) days of receipt, so that the defendant’s employee’s claim that he checked the defendant’s records and that the denials had been timely mailed was insufficient. In this case, while plaintiff has shown that defendant’s denials, generated by its verification of treatment forms, were not timely mailed, plaintiff fails to submit an affidavit from a person with knowledge, that plaintiff never received the blanket disclaimers prior to plaintiff’s treating its assignors. Under these circumstances, defendant’s proof of mailing of the blanket disclaimer forms, in the absence of a sworn denial of receipt by plaintiff, is sufficient.

As noted above, the only distinction between this case and A & S Medical is that in A & S Medical the blanket disclaimer was served on the assignor while in this case the blanket disclaimers were served on plaintiff medical supplier. This distinction need not lead to a different result, since the Appellate Term in A & S Medical took a strong position that the no-fault statutory scheme requires the insurer to deny each claim it receives in a timely fashion, and cannot rely on a blanket disclaimer served prior to receipt of the verification of treatment form. As the Appellate Term noted, permitting such a blanket disclaimer would vitiate the thirty-day rule within which a claim must be denied. [*4]

In addition, even if a previously served blanket disclaimer could serve as a timely denial for subsequent medical treatment, the blanket disclaimers herein cannot be used by defendant as a defense. The blanket disclaimers herein are incomplete. They do not list the name of the medical provider in item 23, and unlike the denials served after receipt of the verification of treatment forms, which list the plaintiff medical provider as the applicant for benefits, the blanket disclaimers list the assignors as the applicants for benefits. An incomplete blanket disclaimer, which makes no mention of the medical provider, cannot be considered a timely denial of a claim for treatment which was subsequently provided, even if the blanket disclaimers were served on the medical provider. At the very least, if defendant wishes to rely on a blanket disclaimer, it must be properly completed. Thus, defendant’s belated denials of plaintiff’s no-fault claims cannot be deemed timely denied based on the previously served, but improperly filled out, blanket disclaimers.

Defendant cites Hospital for Joint Diseases v. Allstate Insurance Co., 5 AD3d 441 (2nd Dept. 2004), as standing for the proposition that a blanket disclaimer can act as a timely denial of subsequent treatment. In that case, the plaintiff claimed that it was entitled to summary judgment on two no-fault claims it sent on March 6, 2002, since the defendant had failed to either pay or deny the claims within thirty (30) days of receipt. The defendant submitted evidence that it had previously notified the plaintiff’s assignor that it had terminated her no-fault benefits based on an independent medical examination. In addition, defendant showed that it had previously issued timely denials for identical claims previously submitted by the plaintiff, and that the plaintiff had repeatedly resubmitted the identical claims, until, one time, the defendant failed to issue a timely denial. The court found that the defendant’s denial was timely, since it had previously timely denied the identical claim. This case is quite different from Hospital for Joint Diseases, since defendant herein never issued a timely denial.

A no-fault claim is overdue if it is not paid or denied within thirty (30) days of receipt. Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(1)(i). Since the blanket disclaimers are not valid, and since defendant either failed to pay or deny the claims with thirty (30) days of receipt, or never issued a denial, plaintiff’s no-fault claim is overdue.

Where an insurance company fails to deny a no-fault claim within thirty (30) days of receipt, it is precluded from raising the defense of lack of medical necessity (Amaze Medical Supply, Inc. v. Allstate Insurance Co., 2 Misc 3d 134[A], 2004 WL 758248 [AT 2nd & 11th Jud. Dists.]).

Defendant further argues that the fees sought by plaintiff exceed the Workers’ Compensation fee schedule. Since defendant failed to deny the claims within thirty (30) days of receipt, it is precluded from raising this defense (Mingmen Acupuncture Services, P.C. v. Liberty Mutual Insurance Co., 2002 WL 1362202 [AT 9th & 10th Jud Dists.]; Park Health Center v. Prudential Property & Casualty Insurance Co., 2001 WL 1803364 (AT 2nd 11th Jud Dists.]).

Accordingly, plaintiff’s motion for summary judgment is granted.

Interest on overdue claims accrues at 2% interest per month. Insurance Law

§5106(a); 11 NYCRR § 65.15(h)(1).

In accordance with 11 NYCRR § 65.17(b)(6)(v), once a court action is commenced, a party may recover attorneys’ fees in the sum of 20% of the amount of no-fault benefits awarded, including the interest awarded thereon, to a maximum of $850.00 per claim (Smithtown General Hospital v. State Farm Mutual Auto Insurance Co., 207 AD2d 338 [2nd Dept. 1994]).

The clerk is directed to enter judgment against defendant on the first cause of action [*5]in the sum of $1360.00, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against defendant on the second cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the third cause of action in the sum of $727.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the fourth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the fifth cause of action in the sum of $812.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the sixth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the seventh cause of action in the sum of $850.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against defendant on the eight cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the ninth cause of action in the sum of $85.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against the defendant on the tenth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York ________________________________

January 4, 2005 DELORES J. THOMAS

Judge, Civil Court

Footnotes

Footnote 1: Zoya Abayeva, Geraldine Aybar and Altagarcia Abayea.

Footnote 2: Alekandra Borukhova and Jeanne Rivkin.

[*1]

District Court of Suffolk County, Third District, December 23, 2004

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiffs. Carman, Callahan & Ingham, Farmingdale (James M. Carmen and Jason Tenenbaum of counsel), for defendants.

{**6 Misc 3d at 649} OPINION OF THE COURT

Toni A. Bean, J.

{**6 Misc 3d at 650}A hearing was held on November 19, 2004 to address certain ethical concerns raised by irregularities in the papers submitted by plaintiffs’ counsel in the above-captioned actions, as set forth in this court’s interim memorandum decision and order dated October 28, 2004. Edward Shapiro and his associate Jason Moroff appeared at the hearing as directed, as well as counsel for the defendants.

The plaintiffs, represented by Edward Shapiro and his law firm, have moved for summary judgment in each of these seven actions for assigned first-party no-fault benefits. Each of the plaintiffs’ motions for summary judgment contains an affirmation by Edward Shapiro in which Mr. Shapiro affirms that the plaintiff’s “bills” were mailed on a particular date by “Edward Shapiro, Attorney at Law.” This affirmation has been offered to establish the timely mailing of each plaintiff’s no-fault claim as part of that plaintiff’s prima facie case.

In response to Mr. Shapiro’s affirmation, defendants Progressive Northeastern Insurance Company and General Assurance Co. have cross-moved for summary judgment and to disqualify Edward Shapiro as attorney for the plaintiffs under the witness-advocate rule, set forth at Disciplinary Rule 5-102 of the Code of Professional Responsibility (22 NYCRR 1200.21), on the ground that Mr. Shapiro’s testimony is necessary to establish a material element of each plaintiff’s cause of action.

The matter was set down for a hearing after it was noted that there were obvious differences in the signatures of Mr. Shapiro and his associate, Mr. Moroff, in papers filed with the court, and that affirmations submitted by Mr. Shapiro and Mr. Moroff contained patently contradictory and misleading language. Specifically, Mr. Shapiro’s affirmations in support of summary judgment indicated that he personally mailed each plaintiff’s no-fault claim, while Mr. Moroff’s affirmations opposing disqualification stated that a nonlawyer employee of the law firm submitted the claims and that “at no time does an attorney submit the bills to the insurance carrier.” These irregularities are of particular concern given the fact that Mr. Shapiro’s law firm has commenced hundreds of actions in the Third District Court on behalf of medical providers for assigned first-party no-fault benefits, and has brought similar motions for summary judgment in many of those actions. The stated purpose of the hearing was to determine whether counsel’s actions constituted sanctionable conduct under 22 NYCRR 130-1.1 (a).{**6 Misc 3d at 651}

At the hearing, both Mr. Shapiro and Mr. Moroff stated that the plaintiffs’ bills were not actually mailed by Mr. Shapiro, but by a representative of the firm. It was their contention that, at the time the bills were mailed to the carriers, the name of the firm was “Edward Shapiro, Attorney at Law.” In January of 2004, the firm’s name [*2]was changed to “Edward Shapiro, P.C.” Both maintained that the office inadvertently failed to change the template on the attorney’s “Affirmation” of mailing to read “Bills were sent . . . by Edward Shapiro, P.C.” Counsel for the plaintiffs contend that it was not their intent to deceive the court and expressed their apologies if that impression was given.

Although it is Mr. Shapiro’s assertion that it was not his intent to deceive the court as to who actually mailed the claims to the carriers, after reviewing the testimony of both Mr. Moroff and Mr. Shapiro, this court is constrained to conclude otherwise. It is this court’s opinion that Mr. Shapiro engaged in a pattern of behavior which can only be characterized as a deliberate attempt to mislead the court. Each affirmation in support of the motions for summary judgment sets forth the elements for establishing a prima facie case for a no-fault claim. The inclusion of the affirmation of mailing in each of these cases conclusively establishes the awareness by counsel that such documentation was an important element in determining whether summary judgment was appropriate. Moreover, it is inconceivable that Mr. Shapiro, whose practice involves substantial work in the no-fault field, was unaware that an affirmation or affidavit of mailing must be submitted by the person who actually did the mailing. (See, e.g., Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 9th & 10th Jud Dists 2004]; Oceanside Med. Healthcare, P.C. v Progressive Ins., NYLJ, May 23, 2002, at 22, col 4; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290-291 [2000].)

The assertion that it was not their intent to deceive this court is further unbelievable upon this court’s review of Mr. Moroff’s affirmation in MZ Dental, Inc. v Progressive Northeastern Ins. Co. The affirmation of mailing by Mr. Shapiro states that the bills were mailed by “Edward Shapiro, Attorney at Law.” Mr. Moroff in his affirmation states: “In this instance Edward Shapiro, P.C. did not submit the bill in question” (emphasis added). However, in paragraphs 12 and 13, it states that an employee of their office mailed the bill. In raising these arguments in opposition to disqualifying Edward Shapiro, Esq. as attorney for plaintiff, {**6 Misc 3d at 652}it would stand to reason that his reference in paragraph 6 to “Edward Shapiro, P.C.” is in fact Edward Shapiro, Esq.

Notwithstanding the protestations of Mr. Moroff and Mr. Shapiro to the contrary, the language utilized by Mr. Shapiro, i.e., that the bills were mailed by “Edward Shapiro, Attorney at Law,” can only be construed as a representation that Mr. Shapiro personally mailed the bills. There can be no doubt that the statements purportedly made by Mr. Shapiro in these “affirmations” were deliberately false.

Equally disturbing to this court is Mr. Shapiro’s admission that none of the documents purportedly executed by Mr. Shapiro were, in fact, executed by him. Clearly, Mr. Shapiro cannot once again contend [*3]that it was not his intent to deceive the court. Pursuant to the Rules of the Chief Administrator of the Courts, all documents prepared by counsel that are “served on another party or filed or submitted to the court shall be signed by an attorney” (22 NYCRR 130-1.1a [a]). There was not a single excuse or good cause offered by counsel for his failure to execute any of these documents. Mr. Moroff similarly admitted that on at least two occasions he instructed someone else to sign his name to documents submitted to the court even though he was present in the office.

The original signature by counsel is intended to certify that the presentation of the papers or the contents contained therein are not frivolous. (See, 22 NYCRR 130-1.1a [b].) The purported unintended error in the attorney affirmation of mailing may be considered a mistake or an inadvertent error on the first few submissions of these similar motions. However, had counsel reviewed the moving papers, the error would have or should have been detected and corrected. The acknowledgment that the error was only corrected most recently, after this hearing was ordered, demeans the integrity of this court and the profession. The methods practiced by Mr. Shapiro and Mr. Moroff strongly suggest a greater interest in their own monetary benefit than in the integrity of the documents submitted.

Finally, Mr. Moroff and Mr. Shapiro contend that whether the affirmation of mailing satisfies a requirement of their prima facie case is no longer at issue once the carrier acknowledges receipt of the bill on the NF-10 denial of claim form. In support of their argument reference is made to the case of A.B. Med. Servs., PLLC 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 2004]).{**6 Misc 3d at 653}

Recognizing the court’s holding in A.B. Med. Servs., the finding therein is not applicable to at least three of the seven matters herein. In the cases of Olmecs v Progressive, Olmecs v General Ins. Co. and Olmecs v Progressive, an NF-10 was not contained in the moving or opposing papers. Accordingly, the plaintiff was required to make out a prima facie case in the first instance. However, as admitted by counsel, the affirmation of mailing was not executed by the person who actually mailed the bills. The plaintiff has therefore not established a prima facie case in these matters. In addition, the supporting affirmation of mailing was not actually executed by counsel.

In any event, such arguments are not relevant to the court’s concerns regarding counsel’s pattern of misrepresentation. An attorney, as an officer of the court, has an ongoing professional duty to state the truth in papers filed with the court. (See, Advisory Comm Notes, reprinted following NY Cons Laws Serv, Book 4C, CPLR 2106, at 440.) In acknowledgment of the attorney’s awareness of this duty and of the consequences for making a false statement, CPLR 2106 authorizes the attorney to simply sign his or her own statement [*4]and to affirm its truth subject to the penalties of perjury. Such affirmation has the same effect as an affidavit sworn to before a notary public. (See, V. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2106.)

An “affirmation” of an attorney which has not been signed by the attorney is of no force and effect. (See, Matter of American Sec. Ins. Co. v Austin, 110 AD2d 697 [2d Dept 1985].) Moreover, an affidavit purported to be that of one person, but signed by another is worthless and a nullity. (See, A.B. Med. Servs. PLLC v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists 2004]; Reboul, MacMurray, Hewitt, Maynard & Kristol v Quasha, 90 AD2d 466, 466 [1st Dept 1982], citing 1 NY Jur 2d, Acknowledgments, Affidavits, Oaths, Notaries and Commissioners § 58, at 257.) A falsely subscribed attorney’s affirmation is not only worthless, but may be sanctionable as well. (See, e.g., Park Health Ctr. v Country Wide Ins. Co., 1 Misc 3d 906[A], 2003 NY Slip Op 51529[U] [Civ Ct, Queens County 2003].)

In the court’s opinion, the failure of counsel to sign the affirmations filed with this court in each of these seven actions, without good cause shown, nullifies the motions. (See, 22 NYCRR 130-1.1a.) Plaintiffs’ motions for summary judgment are accordingly denied.{**6 Misc 3d at 654}

Similarly, in each of the actions the original summons and complaint, as admitted by counsel, does not bear his true signature. The fraudulent signatures offered by counsel in feigned compliance with the requirements of 22 NYCRR 130-1.1a are part of the pattern of deceptive practices engaged in by Mr. Shapiro and Mr. Moroff which has prejudiced the defendants in these actions. The court in its memorandum decision in these actions dated October 24, 2004 apprised Mr. Shapiro and Mr. Moroff of the differences in attorney signatures. This irregularity was one of the issues for which the hearing was scheduled. With full knowledge of the false signatures on the summonses and complaints, there was never an attempt or offer to correct the signatures in each action. Consequently, the complaint in each action shall be dismissed without prejudice. (See, 22 NYCRR 130-1.1a [a].) The cross motions are thereby moot.

Viewing the actions in totality, this court finds the actions of Mr. Shapiro and Mr. Moroff to be sanctionable under 22 NYCRR 130-1.2. Despite the comments by Mr. Moroff and Mr. Shapiro, these actions demonstrate an intent to deceive the court and their adversaries. Material factual statements were falsely presented to this court. This conduct is deemed frivolous and sanctionable. The egregious actions by counsel cannot be ignored. A total fine of $35,000 ($5,000 for each action) is hereby assessed against counsel for the plaintiffs to be paid to the Lawyers’ Fund for Client Protection, 119 Washington Avenue, Albany, New York 12210.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (M. Solomon, J.), entered on August 20, 2003, which denied its motion for summary judgment.

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

Plaintiff commenced the instant suit to recover no-fault benefits for medical supplies furnished to its assignor. Plaintiff established prima facie entitlement to summary judgment by proof that it submitted 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]; 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 plaintiff’s motion, defendant failed to establish the existence of a triable issue of fact. Defendant denied plaintiff’s claim for no-fault benefits on the ground that plaintiff’s assignor failed to appear for independent medical examinations (IMEs) scheduled prior to defendant’s receipt of plaintiff’s claim. While defendant was entitled to request IMEs prior to its receipt of plaintiff’s claim, failure to attend such IMEs is not subject to sanctions under the claim [*2]rules of the insurance regulations, and hence, such failure of plaintiff’s assignor did not constitute a proper basis for denial of no-fault benefits (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]). There being no other defense asserted by defendant, plaintiff’s motion for summary judgment is granted and [*3]
the matter is remanded for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: December 22, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered July 23, 2003, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary
judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,243.43 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees on that claim, and for all further proceedings on plaintiff’s remaining claim; as so modified, affirmed without costs.

Plaintiff’s claim in the amount of $1,243.43 was not denied until more than
30 days after it was submitted (see 11 NYCRR 65-3.8 [a], [c]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]), defendant insurer was precluded from raising most defenses. Inasmuch as plaintiff established a prima facie case by the submission of a complete proof of claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue, it was entitled to summary judgment on the claim (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]).

Neither party is entitled to summary judgment on the claim in the sum of $1,196.21. On [*2]April 22, 2002, defendant timely denied this claim, which had been received on April 9, 2002, on the ground that plaintiff’s assignor failed to appear for a chiropractic examination on February 20, 2002 and for an acupuncture examination on February 21, 2002.

An insurer has a right to an IME following an oral or written notice of claim
and prior to the insurer’s receipt of the statutory claim forms or their functional equivalent (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ______ [decided herewith]). Where, as here, 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, or in support of its own motion for summary judgment, the presumption of medical necessity which otherwise attaches to the claim forms is prima facie rebutted, and raises a triable issue as to the medical necessity of the health benefits provided (Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _________ [decided herewith]; Millennium Med. Diagnostics v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388). While a plaintiff may successfully oppose a defendant’s summary judgment motion and avoid the negation of the presumption of medical necessity by establishing in its opposition papers that its assignor’s failure to attend the IME was excusable or that the request was unreasonable in light of all the surrounding circumstances existing at the time of the request, in the instant case plaintiff failed to establish either.

Since it was uncontroverted that the eligible injured person failed to comply
with a reasonable request for a pre-claim-form IME and plaintiff failed to make a prime facie showing of medical necessity, its motion for summary judgment was properly denied. Moreover, defendant’s cross motion for summary judgment should likewise have been denied inasmuch as questions of fact exist, including whether the benefits provided were medically necessary (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]).

Aronin, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order in the following
memorandum:

For the reasons stated in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]), I would affirm the order of the court below.
Decision Date: December 22, 2004

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 (P. Sweeney, J.), entered May 23, 2003, as denied that branch of its motion seeking summary judgment in the sum of $2,176.30.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment in the principal sum of $2,176.30, and matter remanded to the court below for the calculation of statutory interest and assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $4,366.28. Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment on its claims for $1,198.82, $795.30 and $182.18, by showing that it submitted properly completed claim forms to defendant (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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). [*2]

With respect to the claim for $1,198.82, the affidavit of plaintiff’s “practice and billing manager” in which she stated that she herself mailed the claim form from the local post office was sufficient to give rise to a presumption that the claim form was received. Defendant’s mere denial of receipt, in the form of an affirmation of counsel, standing alone, was insufficient to overcome the presumption of receipt which attaches to items which are properly mailed (see Kihl v Pfeffer, 94 NY2d 118 [1999]). Inasmuch as plaintiff, in annexing the certificate of mailing to its reply papers, did not seek to introduce new arguments or grounds in support of the motion, and was merely
attempting to respond to defendant’s claim of nonreceipt, the court below should have considered the reply. Having failed to rebut the presumption of receipt and to pay or deny the claim within the 30-day period prescribed by 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]), summary judgment with respect to this claim should have been granted.

With respect to the claims for $795.30 and $182.18, defendant’s denial was based on plaintiff’s assignor’s failure to attend scheduled independent medical examinations (IMEs). Although defendant had the right to request attendance at IMEs scheduled prior to the insurer’s receipt of plaintiff’s proofs of claim (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op______ [decided herewith]), it failed to establish by competent evidence that it did so. Defendant’s opposition papers consisted of an affirmation of defense counsel who was without personal knowledge of the facts (see Rue v Stokes, 191 AD2d 245 [1993]). Defendant did not submit proof of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) nor did defendant create a presumption of mailing by describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, summary judgment as to these claims was likewise appropriate.

We note that the insurance regulations do not require that the signature of the assignor on the assignment of benefits form be authenticated. In any event, the insurer’s failure to allege in its claim denial form any other alleged deficiencies in the assignment of benefits form constitutes a waiver of any defenses with respect thereto (see Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665 [U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest due on $2,176.30, that portion of the claims for which summary judgment is granted, an assessment of attorney’s fees due on $2,176.30, pursuant to Insurance Law § 5106 [a] and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: December 22, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Waltrous, J.), entered April 11, 2003, denying its motion for summary judgment and granting defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover the sum of $2,157 in first-party no-fault benefits for medical supplies furnished to plaintiff’s assignor, defendant timely denied plaintiff’s claims upon the ground of lack of medical necessity, and based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs).

In addition to requesting an IME as a means of verification of a submitted proof of claim (see 11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5), an insurer has an independent right to [*2]request an IME prior to its receipt of a proof of claim, pursuant to the mandatory endorsement provision of the policy of insurance which, as set forth in 11 NYCRR 65.12 (e) (now 11 NYCRR 65-1.1 [d]), provides that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the company may reasonably require.” Furthermore, where the insurer has timely asserted in its claim denial form an injured person’s failure to comply with a reasonable and proper IME request made prior to the insurer’s receipt of plaintiff’s proof of claim, and raises said ground in support of, or in opposition to, a summary judgment motion, said assertion may operate to negate the presumption of medical necessity which otherwise attaches to plaintiff’s claim forms (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

In the instant case, upon the summary judgment motions, defendant stated that it mailed several IME requests to plaintiff’s assignor prior to its receipt of plaintiff’s proof of claim forms, and that she failed to attend the IMEs which were scheduled. Defendant’s proof of mailing was supported by the affidavits of a manager of defendant and of an employee of Crossland Medical Services (which schedules IMEs for defendant), and was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that the letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Having demonstrated that it made reasonable and proper IME requests and that plaintiff’s assignor failed to comply with such requests, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to plaintiff’s claim forms, and raised a triable issue of fact as to the medical necessity of the equipment supplied to plaintiff’s assignor (see Stephen Fogel Psychological, PC v Progressive Casualty Ins. Co., [decided herewith]). Inasmuch as plaintiff neither offered a valid excuse for its assignor’s nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue as to medical necessity was raised and thus, in addition to denying plaintiff’s motion for summary judgment, the court below should have denied defendant’s cross motion for summary judgment.
Aronin, J.P., and Patterson, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.,
As Assignee of ROSE DANIEL,
Appellant,

-against-

Golia, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:

Although I agree with the findings of my colleagues that defendant’s proof of mailing IME scheduling letters demonstrated that defendant, in conjunction with Crossland Medical Services, adhered to established business practices of proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that plaintiff failed to come forward with an acceptable excuse for its assignor’s nonattendance, it is my opinion that plaintiff’s failure to have done so warrants the granting of defendant’s cross motion for summary judgment and the substantive
sanction of dismissal, for the reasons set forth in my dissent in the case of Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

I note that defendant’s denial of claim form also asserted that the fees charged for the medical equipment were not “in accordance with fee schedules.” Had this issue been raised in the motion papers or on the appeal, I would have, where appropriate, entertained it, notwithstanding my concurrence in the decision of Amaze Med. Supply v Allstate Ins. Co. (3 Misc 3d 43 [2004]).
Decision Date: December 22, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 22, 2004

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for appellant. Baker & Barshay, LLP, Hauppauge (David M. Barshay of counsel), for respondent.

{**7 Misc 3d at 19} OPINION OF THE COURT

Memorandum.

Order modified by deleting the portion of the order which granted plaintiff summary judgment; as so modified, affirmed without costs.

In this action to recover $969.61 in assigned first-party no-fault benefits, defendant insurer denied plaintiff health provider’s claim on the ground that the eligible injured person failed to appear for independent medical examinations (IMEs) which defendant scheduled before plaintiff filed its statutory claim forms. Defendant moved for summary judgment contending that its proof of plaintiff’s assignor’s nonappearance established a defense to the action.

The insurance regulations provide for IMEs as part of an insurer’s entitlement to “additional verification” following the insurer’s receipt of a provider’s statutory claim forms in order to determine, inter alia, the medical necessity of the health benefits provided the injured person (11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [d]; see also 11 NYCRR 65.15 [g] [1], now 11 NYCRR 65-3.8 [a] [1] [IME “verification” deemed received “on the day the examination was performed”]). An insurer need not pay or deny a claim until demanded verification is [*2]provided (11 NYCRR 65.15 [g] [1] [i]; [2] [iii], now 11 NYCRR 65-3.8 [a] [1]; [b] [3]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Where an eligible injured person fails to comply with an insurer’s timely postclaim IME verification request, {**7 Misc 3d at 20}the insurer’s time to respond to the claim does not begin to run, which may entitle the insurer to dismissal of the action seeking no-fault benefits (Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004], supra; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004], supra; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; see also 11 NYCRR 65.15 [g] [2] [i], now 11 NYCRR 65-3.8 [b] [1]).

The first question presented is whether an insurer has a right to an IME following an oral or written notice of claim (11 NYCRR 65.15 [c] [1], [2], now 11 NYCRR 65-3.4 [a], [b]) and prior to the insurer’s receipt of the statutory claim forms or their functional equivalent (11 NYCRR 65.15 [d] [1], [5], now 11 NYCRR 65-3.5 [a], [f]), the event which, under the regulations, triggers the verification process (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). If such a right exists, we must determine the consequences, if any, of the injured person’s failure to attend an IME sought before any claim form has been submitted.

The insurance regulations provide, in the mandatory personal injury protection endorsement, which is independent of the verification protocols, that “[t]he eligible injured person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (11 NYCRR 65.12 [e], now 11 NYCRR 65-1.1 [d] [emphasis added]). In light of this broad language, and because this provision is included in the mandatory endorsement and not in the verification protocols, there appears to be no reason to preclude an insurer from requesting an IME prior to its receipt of the statutory claim form. This analysis is particularly reasonable given the fact that the insurer, upon receipt of an oral or written notice of claim, is under an obligation to commence the claim processing procedure (see 11 NYCRR 65.15 [b], [c] [1]-[2], now 11 NYCRR 65-3.3, 65-3.4 [a]-[b]). Accordingly, we conclude that an insurer is entitled to request an IME upon the receipt of a notice of claim, whether orally or in writing. This conclusion was implicit in Millennium Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003]) which also involved an IME sought before the submission of the statutory claim forms (see also Informal Op, NY State Ins Dept, Apr. 12, 2002). In so concluding, we recognize the importance of a timely held IME in the detection of fraudulent claims, the sharply rising incidence of which has drawn attention from law enforcement agencies and the courts{**7 Misc 3d at 21} (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 867 [2003]), and has stimulated significant revisions in the insurance regulations.

However, the right to an IME at this juncture is not afforded by the verification procedures and timetables (see 11 NYCRR 65.15 [d], [e], [g], now 11 NYCRR 65-3.5, 65-3.6, 65-3.8), because 11 NYCRR 65.12 (e) (now 11 NYCRR 65-1.1 [d]) is not, on its face or contextually, a “verification” provision, and because the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form (but see Bronx Med. Servs. v Windsor Ins. Co., 2003 NY Slip Op 50885[U] [App Term, 1st Dept 2003]). Such a rewriting of the regulations is a matter for the Legislature or the Insurance [*3]Department, and indeed, a comprehensive response to the Court of Appeals’ call for the enactment of “more synchronized provisions in the highly technical and regulated . . . no-fault universe[ ]” is awaited (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Having determined that the insurer has a right to request an IME prior to the submission of the claim form, we now turn to the second inquiry: What are the consequences of the injured person’s failure to attend an IME sought before the statutory claim form is submitted? As an insurer’s rights and/or remedies upon nonreceipt of matter sought pursuant to the postclaim verification procedures (11 NYCRR 65.15 [g], now 11 NYCRR 65-3.8; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 570) are inapplicable (but see Bronx Med. Servs. v Windsor Ins. Co., 2003 NY Slip Op 50885[U] [2003], supra), the consequences of an insured’s failure to attend a preclaim IME must be sought in the general principles of no-fault claims determinations.^[FN*] Generally, a plaintiff health provider’s proof of a properly submitted statutory claim form, or its substantial equivalent, establishes a prima facie case of medical necessity on a plaintiff’s motion for summary judgment (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A],{**7 Misc 3d at 22} 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; see also Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists 2003]). The burden then shifts to defendant who, if not precluded, may rebut the presumption and establish the lack of medical necessity by submitting proof, such as a detailed peer review report or the results of an IME, that the health benefits provided were not medically necessary (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [2003], supra; see also Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [2003], supra). However, when an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper preclaim 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. While not establishing the lack of medical necessity so as to warrant reverse summary judgment in its favor, such proof defeats the motion. As the courts disapprove of a movant seeking to submit proof for the first time in a reply paper (see Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]), a plaintiff should not be permitted to submit its independent proof of medical necessity for the first time at such juncture. Of course plaintiff, having been alerted to the insurer’s assertion of the eligible injured person’s failure to attend such IME in the claim denial form, may support its motion with proof of medical necessity (independent of the presumption of medical necessity that attaches to the claim form), or may explain the eligible injured person’s failure to attend the IME by offering a valid excuse for such nonappearance, or proof that, under the circumstances, the IME request was unreasonable and, thus, not authorized by 11 NYCRR 65.12 (now 11 NYCRR 65-1.1). In such case, plaintiff may [*4]be entitled to prevail on its summary judgment motion should defendant’s opposition papers otherwise fail to raise a triable issue of fact.

Where, as here, an insurer moves for summary judgment (or cross-moves for summary judgment) to dismiss the action on the sole ground that the eligible injured person failed to appear for an IME which was reasonably and properly requested prior to its receipt of any claim form (assuming such ground was preserved by having been previously asserted in the insurer’s denial of claim form), the insurer’s motion will not warrant a dismissal of the action, since such ground, as noted above, does not establish a lack of medical necessity. Rather, its effect is only a procedural one: it negates the presumption of medical necessity {**7 Misc 3d at 23}which otherwise attaches to plaintiff’s claim forms, thereby raising a triable issue as to the medical necessity of the health benefits provided (Millennium Med. Diagnostics v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003], supra). For plaintiff to ultimately prevail in its action, it must then independently establish medical necessity by admissible evidence at trial. Of course, plaintiff may successfully oppose such motion by the insurer and avoid the negation of the presumption of medical necessity which attaches in the first instance to its claim form by establishing in its opposition papers that the eligible injured person’s failure to attend the IME was excusable or that the request was unreasonable in light of all the surrounding circumstances existing at the time of the request.

Since, in the instant case, it was uncontroverted that the eligible injured person failed to comply with a preclaim form IME request, the reasonableness of which was not challenged, plaintiff should not have been granted summary judgment. However, defendant’s motion for summary judgment was properly denied inasmuch as questions of fact exist, including whether the benefits provided were medically necessary.

Golia, J., concurs in part and dissents in part, and votes to reverse the order and grant defendant’s motion for summary judgment in the following memorandum: We all agree that “plaintiff should not have been granted summary judgment.” I regret to say that is where we part company. I dissent as to the reasoning behind the majority’s holding and as to the refusal to grant judgment to the defendant dismissing the complaint.

A careful reading exposes the inaccuracies, misstatements and misunderstandings relied upon by the majority.

The majority presents a two-tiered question. The first question is, does an insurer have the right to demand an independent medical examination (IME) prior to receipt of a formal claim? If so, does the eligible injured person’s failure to attend an IME sought before any claim form has been submitted result in any consequences? My answer to both questions is “yes.”

The majority found that a demand for an IME is permitted pursuant to the mandatory personal injury protection endorsement, which is set forth in the insurance regulations as well as the contract of insurance, and is independent of the verification protocols which are only in the insurance regulations.

Having made the finding that the IME in question does not fall under the verification protocols, the majority then concludes that {**7 Misc 3d at 24}the failure to attend an IME does not carry any sanctions under the regulations. They do say, however, that it creates an issue of fact sufficient to overcome the presumption of medical necessity and to deny a motion for summary judgment by the eligible injured person or his assignee. Well, that is not the regulation.

Consequently, I disagree with that premise, and their conclusion. [*5]

To begin with, 11 NYCRR 65-1.1 (d) provides for the mandatory personal injury protection endorsement. The purpose of this regulation is to mandate the terms of the [*6]personal injury protection endorsement that is permitted in automobile insurance contracts in New York State.

Within that regulation is the subheading “Conditions,” which provides: “Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of the coverage.” (Emphasis added.)

Within that subheading is the following provision: “The eligible . . . person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.” (Id.; emphasis added.)

It is abundantly clear to me that if an eligible injured person fails to submit to an independent medical examination, as provided, then the eligible injured person or his assignee cannot prosecute an action against the company. To me this is a simple reading of the regulations. It is not confusing or complex.

There is also a section that is entitled “Claim Procedure” (11 NYCRR 65-3.5) which contains a detailed set of provisions for the filing of claims and for the verification procedure. This section also addresses the request for an IME, but only as the result of the eligible injured person or their assignee filing a demand for payment.

Although the majority makes it appear that a demand for an IME can be requested immediately upon receipt of a formal claim, in fact this is not so. A request for an IME is denominated as “additional verification” and can only be requested after a request for “verification” of a claim and the response thereto has been received.

Specifically, subdivision (a) of 11 NYCRR 65-3.5 provides that the insurer shall forward to the parties required to complete them {**7 Misc 3d at 25}the “prescribed verification forms” needed prior to payment. Subdivision (b) provides that subsequent to the receipt of the completed verification forms, “any additional verification” required may be requested. IMEs are, in fact, deemed to be “additional verification” (see 11 NYCRR 65-3.4 [c]).

While this is a highly technical and precise reading of the regulations, it is an example of the majority’s restrictive interpretations of the regulations.

While the holding of the majority results in a plenary trial on the issue of lack of medical necessity, the insurer will have no evidence to present on the issue of “medical necessity,” as the eligible injured person never appeared for the IME and consequently the company never examined that person. The eligible injured person would not be entitled to summary judgment but the insurer has no possibility to defend at trial. This, of course, ignores 11 NYCRR 65-1.1 (d) which provides that “[n]o action shall lie against the Company . . . .” [*7]

In my opinion, the mandatory personal injury protection endorsement conditions the right to commence an action against the insurer upon an eligible injured person’s compliance with the terms of coverage. Where an eligible injured person fails to submit to a reasonably requested IME, the insurance policy, by its terms, as provided by the insurance regulations, affords no coverage for the otherwise eligible injured person (see e.g. Orr v Continental Cas. Co., 205 AD2d 599 [1994] [breach of a condition precedent in an insurance contract permits the insurer to declare the contract terminated due to the breach]). In other words, the assertion by an insurer that the eligible injured person failed to comply with a reasonable request for an IME at the preclaim form stage, which was not opposed or adequately refuted, constitutes a complete defense to the claim warranting dismissal of the action (see e.g. St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]). Indeed, to hold, as does the majority, that the mandatory personal injury protection endorsement requires an eligible injured person to submit to a reasonably requested IME, but that the failure or refusal to submit to such an IME does not bar coverage under the insurance policy is inconsistent as noted earlier. Having determined that the mandatory personal injury protection endorsement obligates eligible injured persons to submit to reasonably requested IMEs, the majority offers no good reason for failing to give effect to the [*8]provision which expressly conditions coverage upon the eligible injured person submitting to a reasonably requested IME.{**7 Misc 3d at 26}

To the extent the majority suggests that its holding is governed by the Appellate Term’s opinion in Millennium Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003]), I note that I was not a member of the panel which decided said case. Nor was I member of the panels which also decided the Park Health Ctr. v Liberty Mut. Ins. Co. (191 Misc 2d 91 [App Term, 2d & 11th Jud Dists 2001]) and Urban Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40655[U] [App Term, 2d & 11th Jud Dists 2001]) cases which were decided the same day as the Millennium Med. Diagnostics case and which employed the same analysis. In said cases, those courts properly held that an insurer was entitled to an IME which was sought prior to the submission of claim forms; however, those courts then mistakenly failed in the aforementioned cases, as it also does in the instant case, to hold that the unexcused nonappearance of an eligible injured person for a reasonably requested preclaim stage IME bars coverage. In light of my analysis set forth herein and the rapid increase in the number of no-fault claims tainted by fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [2003]), it is my hope that the Appellate Division would reconsider the position it adopted in the Millennium Med. Diagnostics case and, in the future, award summary judgment to similarly situated insurers if there was no reasonable excuse for the eligible injured person’s failure to appear at a reasonably and properly requested preclaim stage IME.

Although the majority declares that the failure of an eligible injured person to appear for a reasonably requested IME shall have consequences, the consequences adopted by the majority fall far short of barring an action against the insurer. Rather, if an insurer satisfies its obligation to timely and properly deny a claim for payment, based upon, at a minimum, the nonattendance of the eligible injured person at a reasonably requested IME, and establishes such fact by presenting sufficient evidence upon a motion for summary judgment, the majority will merely deem the presumption of a prima facie case of medical necessity which flows from the eligible injured person’s presentation of properly completed claim forms (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 2003]) to have been rebutted. As noted in the majority’s opinion, in such a situation, the eligible injured person, or his or her assignee, may only prevail if sufficient{**7 Misc 3d at 27} evidence is proffered to demonstrate that the health benefits provided to the eligible injured person, and for which payment is being sought, was medically necessary. As stated earlier, this would be impossible for the insurer to defend because there was no medical examination of the eligible injured person upon which to rely. [*9]

Notwithstanding the fact that it is becoming apparent to the courts, law enforcement agencies and the media that many people are engaged in fraudulent criminal activity so as to obtain money to which they are not entitled for treatment which was never rendered and that such activity adds to the costs borne by law abiding citizens (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 861; Jail Officers in Crash Scams, New York Post, Sept. 29, 2004; DA: Queens Clinics Filed $1 Million in Fake Claims, NYLJ, Sept. 23, 2004, at 4, col 5; DA: Queens Clinics Filed $1 Million in Fake Claims, Newsday, Sept. 23, 2004), the majority is willing to, in effect, overlook the failure or perhaps the refusal of an eligible injured person to submit to a reasonably requested IME. Under the majority’s position, however, an insurer will never be able to obtain summary judgment dismissing an action based solely upon the failure of an eligible injured person to submit to a reasonably requested IME. This is so notwithstanding the fact that the eligible injured person thwarts the insurer’s ability to establish a defense to the action, to wit, a lack of medical necessity which could be established through a medical examination conducted when such examination might yield the most pertinent information relevant to such issue at an earlier stage. Indeed, a medical examination conducted after submission of the claim form as additional verification (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [d]) often only occurs after the treatment is complete and the injury has been resolved.

In sum, while the “primary aims of [the no-fault] system were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 860), at least two of its three goals have not been achieved. Moreover, although the no-fault system contains relatively quick deadlines to ensure the prompt resolution of claims, in the instant case, the majority’s willingness to, in effect, overlook the failure or refusal of an eligible injured person to submit to a reasonably requested independent medical {**7 Misc 3d at 28}examination thwarts attempts by insurers to investigate claims faster and inhibits insurers’ efforts to ascertain whether the eligible injured person is genuinely injured or is a participant in a criminal scheme.

As a result, while I agree that plaintiff is not entitled to summary judgment, I would grant defendant’s motion for summary judgment dismissing the action.

Aronin, J.P., and Patterson, J., concur; Golia, J., concurs in part and dissents in part in a separate memorandum.

Footnotes

Footnote *: We are aware that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1 [d]) bars an action against an insurer “unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” However, we are of the opinion that this provision applies solely to an insured’s cooperation with the postclaim verification protocols with regard to IMEs.

[*1]

Supreme Court, Appellate Term, Second Department, December 22, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz, P.C., White Plains (James G. Eberz of counsel), for appellant. Baker & Barshay LLP, Hauppauge (Gil McLean of counsel), for respondent.

{**8 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, reversed without costs and defendant’s motion to dismiss the complaint granted.

Plaintiff medical provider commenced this action to recover first-party no-fault benefits in the sum of $4,126.89 for medical services rendered to plaintiff’s assignor for injuries she allegedly sustained in an automobile accident which occurred in the Bronx on December 7, 2001. Plaintiff’s assignor was a passenger in a U-Haul vehicle insured by defendant, an Arizona corporation. Service of the summons and complaint was made on the New York State Department of Insurance. An answer was interposed denying the allegations of the complaint which asserted that defendant was licensed and authorized to do business in the State of New York and that it transacted business in{**8 Misc 3d at 35} the City of New York, and which included an affirmative defense that the court lacked jurisdiction over defendant. In support of a subsequent motion to dismiss for lack of jurisdiction, based on CCA 404 (a), defendant’s New York claims manager submitted an affidavit in which he averred that [*2]defendant was an Arizona corporation which neither wrote nor sold insurance in the State of New York, nor had any agent in the State of New York, that defendant was the sole insurer for U-Haul, Inc., an Arizona corporation, and that the policy was written and sold in Arizona. Defendant had a claims office in Westchester County. He further stated that defendant did not write, sell or solicit any insurance policies to any entities within New York City, did not provide goods or services within New York City, and did not transact business in New York City.

In its opposition papers, plaintiff’s counsel argued that “upon information and belief,” defendant actively engaged in the solicitation of business and the writing of insurance policies to residents of New York City, which activities constituted the transaction of business as well as the contracting to supply goods and services in New York City. Documentation purported to be in support of its argument consisted of various police accident reports from other accidents where U-Haul vehicles were involved as well as several no-fault denial of claim forms where the “policy holder” was identified as defendant.

After the return date of the motion, the court requested that the parties send to it additional documentation which included the police report pertaining to the instant accident, the addresses of the assignee and its assignor, registration information for the U-Haul vehicle at issue, a copy of the insurance policy between defendant and U-Haul’s parent company, Amerco, the insurance identification card for the U-Haul vehicle, and a copy of the U-Haul rental contract with a computerized printout regarding the lease transaction between U-Haul and the lessee. These materials showed that both plaintiff’s assignor and the lessee were Bronx residents and that the accident occurred in the Bronx. U-Haul Co. of Arizona was listed in the police report as the registered owner of the vehicle. A business automobile insurance policy had been issued by defendant, an Arizona corporation, to its named insured, Amerco, also an Arizona corporation, indicating that there was a New York specific endorsement providing no-fault coverage. The Arizona automobile insurance card for the vehicle showed that defendant was its insurer and that the insured was “Amerco et al, including{**8 Misc 3d at 36} U-Haul.” The U-Haul rental contract stated that its customers were insured by a business auto policy providing the minimal limits of the state where the accident occurred.

In its decision and order denying the motion to dismiss, the court below made numerous findings of fact based not upon the submissions of counsel but rather upon its own Internet research. Among those findings, from defendant’s own Web site, were that defendant was a wholly owned subsidiary of Amerco, whose other major subsidiaries included, inter alia, U-Haul, and that defendant was a “full service insurance company” which specialized, in part, in vehicular liability, operated in 49 states, and received approximately $170 million in premiums annually. From U-Haul’s Web site, the court found, among other things, that U-Haul was the largest consumer truck and trailer rental operation in the world, and operated in all 50 states, that there were at least nine Queens U-Haul facilities, and that U-Haul promoted career opportunities for defendant, its sibling corporation. Finally, the court found, by going to the Web site of the New York State Department of Insurance, that, contrary to counsel’s denial, defendant had been “licensed to do insurance business” in this state since April of 1980.

The court below did not make a specific finding as to whether defendant, under CCA 404 (a) (1), either in person or through an agent “transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New [*3]York.” Instead, it based its decision to deny the motion to dismiss on the policy considerations behind sections 1212 and 1213 of the Insurance Law, as well as the No-Fault Law.

In our opinion, the court below erred in denying defendant’s motion to dismiss.

Generally, where a defendant moves to dismiss an action on jurisdictional grounds, and where such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained. So long as plaintiff has made a discernible showing that some basis for jurisdiction exists, the court in which the action has been brought has the power to determine whether it has jurisdiction. Whenever a plaintiff makes a “sufficient start,” i.e., a nonfrivolous showing that facts pertinent to an acceptable basis for jurisdiction may exist, a plaintiff is entitled to jurisdictional discovery, and thus need not make a prima facie showing of jurisdiction at the prediscovery stage (see Weinstein-Korn-Miller, NY Civ Prac ¶ 301.07; see also Peterson v Spartan Indus., 33 NY2d 463{**8 Misc 3d at 37} [1974]). Indeed, CPLR 3211 (d) permits a court to deny a motion to dismiss made under CPLR 3211 (a) or to order a continuance to enable a plaintiff to secure additional proof or to conduct further discovery, where “facts essential to justify opposition may exist” but are not available to it.

By serving process on the Superintendent of Insurance, plaintiff was aware that it was basing jurisdiction over defendant by virtue of either section 1212 or section 1213 of the Insurance Law, both of which provide that such service is deemed to have been made “within the territorial jurisdiction of any court in this state” (Insurance Law § 1212 [b]; § 1213 [b] [2]). Indeed, in its complaint, plaintiff alleged that defendant was “licensed and authorized to do business in the State of New York,” thereby implicitly alleging jurisdiction under Insurance Law § 1212. In addition, the complaint alleged that defendant “transacts business in the City of New York,” apparently claiming, in the alternative, that jurisdiction could be based on Insurance Law § 1213.

In opposition to defendant’s motion, plaintiff alleged that it needed to conduct jurisdictional discovery in order to obtain information about defendant’s sale and underwriting of insurance policies to New York City residents in order to establish that defendant did in fact transact business and contract to sell goods and services within the City of New York. It thereby implicitly abandoned its claim of jurisdiction based upon defendant’s status as an authorized insurer, since it could have demonstrated that status without the benefit of discovery, i.e., by submitting a certified document from the New York State Department of Insurance attesting to the fact that defendant was an authorized insurer. It chose not to do so, and instead proceeded to address the alternative jurisdictional basis of “transacting business” under Insurance Law § 1213. In order to demonstrate that “facts essential to justify opposition [to the motion to dismiss] may exist” (CPLR 3211 [d]), plaintiff needed to make more than conclusory allegations, and needed to submit some tangible evidence to substantiate its allegations that defendant, while unauthorized to do business, was either issuing or delivering insurance contracts to state residents or corporations authorized to do business in the state (Insurance Law § 1213 [b] [1] [A]) or was engaged in “any other transaction of business” (Insurance Law § 1213 [b] [1] [D]) and that the cause of action arose out of that transaction of business (see Farm Family Mut. Ins. Co. v Nass, [*4]126 Misc 2d 329 [1984], affd 121{**8 Misc 3d at 38} AD2d 498 [1986]). Plaintiff did not do so and thus did not make the “sufficient start” necessary to warrant further discovery (see e.g. Mandel v Busch Entertainment Corp., 215 AD2d 455 [1995]; see also Granat v Bochner, 268 AD2d 365 [2000]; Bissinger v DiBella, 141 AD2d 595 [1988]; Schumacher v Sea Craft Indus., 101 AD2d 707 [1984]). Accordingly, plaintiff’s complaint should have been dismissed at that juncture, and it was error for the court below not to have done so.

This error was further exacerbated by the court’s conduct in initiating its own investigation into the facts when, based upon the insufficient submissions of plaintiff, the court should have dismissed the complaint. In conducting its own independent factual research, the court improperly went outside the record in order to arrive at its conclusions, and deprived the parties an opportunity to respond to its factual findings. In effect, it usurped the role of counsel and went beyond its judicial mandate of impartiality. Even assuming the court was taking judicial notice of the facts, there was no showing that the Web sites consulted were of undisputed reliability, and the parties had no opportunity to be heard as to the propriety of taking judicial notice in the particular instance (see Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]).

We note that defendant moved for reargument of the subject motion, and the court below, in a subsequent decision/order dated April 12, 2004, and officially reported at 3 Misc 3d 925 (2004), in effect, granted reargument and, upon reargument, adhered to its original determination. We have not reviewed that decision/order pursuant to CPLR 5517 (b) because defendant did not include in the record on appeal the motion papers upon which the decision/order was based (see Matter of Donato v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Matter of Merendino v Herman, 15 AD2d 818 [1962]). However, in light of the fact that the subsequent decision/order adhered to the original determination set forth in the order appealed from, which has now been reversed, to the extent that the decision/order of April 12, 2004 supports a result contrary to the result herein, it should not be followed.

Pesce, P.J., dissents and votes to affirm the order in the following memorandum: In my opinion, the motion court’s use of the Web site of the New York State Department of Insurance in order to verify that defendant insurer was in fact licensed to do{**8 Misc 3d at 39} business in the State of New York was proper. Accordingly, the court did not err in denying defendant’s motion to dismiss based upon lack of jurisdiction.

Although New York cases do not clearly define the procedure for taking judicial notice of facts, in practice, sometimes judicial notice is taken at the request of a party, and sometimes it is taken sua sponte (see Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]). Courts frequently take judicial notice of matters which, at a given moment, may be personally unknown to them. In such cases, recourse may be had to “such documents, references and other repositories of information as are worthy of belief and confidence” even in the absence of a specific request of a party (id. [internal quotation marks omitted]; see also People v Langlois, 122 Misc 2d 1018 [1984]). The use of reference works such as calendars, dictionaries and encyclopedias has been found to be acceptable (see Fisch, New York Evidence § 1068 [2d ed]).

Moreover, it is well settled that a court may take judicial notice of matters of public record or other “reliable documents, the existence and accuracy of which are not disputed” (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989] [certificate of dissolution of corporation issued by Secretary of State]; Associated Gen. Contrs. of Am., N.Y. State Ch. v Lapardo Bros. Excavating Contrs., 43 Misc 2d 825, 826 [1964] [“indisputable public records of the Secretary of State” showed that plaintiff was a domestic membership corporation]) and of data culled from those public records (see Matter of Siwek v Mahoney, 39 NY2d 159 [1976]; see also Russian Socialist Federated Soviet Govt. v Cibrario, 198 App Div 869 [1921], affd 235 NY 255 [1923] [in action brought by plaintiff in its alleged capacity of a sovereign state, said allegation was not conclusive upon the court, and it was appropriate for the court to call upon the State Department of the United States for information regarding the question of our recognition of that foreign government]).

Thus, in my opinion, it was a proper exercise of discretion for the court below to have sua sponte referred to a matter of public record, in order to ascertain the fact of defendant’s status as an insurer. There is no logical reason not to include within the category of public records such records when they are available from reliable sources on the Internet (see e.g., Glorius v Siegel, 5 Misc 3d 1015[A], 2004 NY Slip Op 51378[U] [Civ Ct, NY County 2004] [court verified multiple dwelling registration of premises on Web site of Department of Housing Preservation{**8 Misc 3d at 40} and Development]; see also Samson Moving & Stor. Corp. v Drake Bus. School, 2000 NY Slip Op 40023[U] [Civ Ct, NY County 2000] [court verified defendant’s corporate status by referring to Web site of Department of State’s Division of Corporations]). The Web site of the New York State Department of Insurance provides an insurer search list of “our licensed, regulated companies,” and, in an opinion letter, recommends its Web site in order to find a “directory of licensed insurers” (see Ops Gen Counsel NY Ins Dept No. 03-10-25). That same opinion letter indicates that the term “authorized insurer” includes an insurer that is licensed to do the business of insurance in New York State. The defendant insurer, “Republic Western Insurance [*5]Company,” is included in the directory of licensed insurers.

Defendant was authorized to do insurance business in New York State by virtue of its having been issued a license to do such business. The question of whether defendant was an authorized insurer was important in determining whether there was jurisdiction over it. Insurance Law § 1212 (a) provides that an insurer authorized to do business in the state must appoint the Superintendent of Insurance as its agent for service of process “in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in the state.” Inasmuch as the cause of action in the instant case clearly arose in New York, and since defendant was, according to the records of the New York State Department of Insurance, authorized to do business in New York, service of process upon the Superintendent of Insurance was proper, and constituted valid service within the territorial jurisdiction of the Civil Court of the City of New York (Insurance Law § 1212 [b]), sufficient to confer personal jurisdiction over defendant.

Aronin and Patterson, JJ., concur; Pesce, P.J., dissents in a separate memorandum.

[*1]

Civil Court of the City of New York, Kings County, December 21, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, Hauppauge (Robert J. Baker of counsel), for plaintiff. Carmen Callahan & Ingham, Farmingdale (Kerry-Ann Davidson of counsel), for defendant.

{**6 Misc 3d at 888} OPINION OF THE COURT

Ellen Gesmer, J.

This case presents squarely the question of whether an assignment {**6 Misc 3d at 889}is an essential element of a claim for first-party no-fault benefits, and whether the failure to include it is a waivable defect. For the reasons set forth below, the court holds that an assignment is an essential element of a claim for no-fault benefits, which cannot be waived.

In this action, the verified complaint alleges that Melvin Reyes was injured in a car accident on May 12, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under No-Fault Insurance Law § 5101 et seq. Plaintiff brings this action, as the assignee of Mr. Reyes, to recover $3,080 in first-party no-fault benefits. Plaintiff moves for summary judgment, and defendant opposes it, because of plaintiff’s failure to establish that it submitted an assignment of benefits to defendant with its notice of claim. Plaintiff contends that submission of an assignment of benefits is not part of its prima facie case and that any objections to the assignment are waived if not asserted in the defendant’s denial. Here, defendant [*2]concededly did not object in its denial to plaintiff’s failure to include an assignment in its proof of claim.

In making its argument, plaintiff relies on New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (8 AD3d 640 [2d Dept 2004]). That case would appear to support plaintiff’s position. There, the Appellate Division held that the insurance company’s failure to prove that it had mailed timely requests for verification of the assignments upon which the respondents’ claims were based prevented it from objecting to the claims “on the basis of lack of proof of the assignments.” (At 641; see also New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2d Dept 2004].) Recently, citing New York Hosp. Med. Ctr., the Appellate Term for the 2d and 11th Judicial Districts reversed a trial court which had dismissed a no-fault case because the plaintiff had submitted an assignment which did not designate an assignee (Diagnostic Rehab. Med. Serv. PC v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]). Specifically, the Appellate Term held (at 69) that the defendant insurer, “having failed to seek additional verification or allege any deficiency in the assignment in its denial of claim form, had waived any defenses with respect thereto.”

In its decision, the Appellate Term also overruled its own prior {**6 Misc 3d at 890}decision in A.B. Med. Servs. PLLC v Progressive Ins. (2003 NY Slip Op 50790[U], *1 [App Term, 2d & 11th Jud Dists 2003]), in which it had affirmed the denial of a plaintiff medical provider’s motion for summary judgment on the ground that the “purported assignment” did not bear the name of any assignee. Strikingly however, the Appellate Term did not disown its decision in A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]). In that case, decided three months after New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), the Appellate Term reversed the grant of a plaintiff’s motion for summary judgment finding, inter alia, that one of the plaintiffs had failed to prove its prima facie case because the record did not contain an assignment. The Appellate Term reached that result even though the decision does not indicate that the defendant asked for verification of the assignment or issued a timely denial on that basis. This court concludes that A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]) is still good law, both because the Appellate Term did not overrule it and because, for the reasons set forth below, it is consistent with governing precedent. Applying that decision to this case, this court must deny plaintiff’s motion for summary judgment since it failed to prove that it included an assignment in its notice of claim.

The continued validity of A.B. Med. Servs. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U]), notwithstanding the Appellate Division decision in New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), is entirely consistent with the policies and principles stated in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). In that case, the Court of Appeals held that a defense of noncoverage cannot be waived in a no-fault case, even if the insurer fails to raise it in its denial. That decision extended [*3]to the no-fault context the Court’s holdings in Zappone v Home Ins. Co. (55 NY2d 131 [1982]) and Schiff Assoc. v Flack (51 NY2d 692 [1980]) that the defense of noncoverage could not be waived in cases concerning liability policies and professional indemnity insurance. The underlying theory of all of these cases is that if the insurer is not liable to the alleged insured under the contract of insurance, then contractual liability cannot be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The Court of Appeals explained that, if for example, the insurance company had no contract of insurance at all with the alleged insured, or had no contract with its insured concerning the vehicle in the accident, then “there simply is no insurance at all and, therefore, no obligation to disclaim or deny.” (Zappone v Home Ins. Co., 55 NY2d 131, 139 [1982].){**6 Misc 3d at 891}

An assignment essentially extends the rights created by contract from the assignor to the assignee, so the assignee can sue on behalf of its assignor only if it has a valid assignment. Accordingly, the insurance company has no contractual obligation to the assignee in the absence of a valid assignment. Consequently, if the absence of an assignment could be waived by the insurance company’s failure to raise it, then contractual liability between the insurance company and the assured’s assignee would be created by waiver. But that should not be permitted, just as the courts do not permit a contractual obligation between the insurance company and its alleged insured to be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). Therefore, when no assignment is tendered, the insurance company has no contractual obligation to the assignee, and its objections to the absence of the assignment cannot be waived.

In this case, there simply was no assignment. Plaintiff did not attach one to its moving papers or to its reply papers. Therefore, plaintiff has failed to establish that defendant has any contractual obligation to it, and the court cannot grant summary judgment in its favor.