—[*1]

In an action, inter alia, for a judgment declaring the parties’ rights under a certain insurance policy, the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated July 8, 2003, which granted the defendant’s motion for summary judgment and denied those branches of their cross motion which were for summary judgment, or in the alternative, to reschedule the examination under oath of the plaintiff Tracy Dwight Park.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, the defendant is directed to reschedule the examination under oath of the plaintiff Tracy Dwight Park, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant’s denial of no-fault insurance benefits, in effect, on the ground that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation was improper.

The plaintiff Tracy Dwight Park (hereinafter the injured plaintiff) allegedly was injured in a motor vehicle accident while operating a vehicle owned by the plaintiff Catherine Park, his spouse, and insured by the defendant. The plaintiffs submitted a claim for no-fault benefits to the defendant. The defendant sought to examine the injured plaintiff under oath in accordance with the terms of the insurance policy, but he refused to submit to the examination unless his wife was allowed to be present. In response, the defendant denied the plaintiffs’ claim for no-fault benefits [*2]on the ground that the plaintiffs failed to cooperate with its investigation. The plaintiffs commenced this action, inter alia, for a judgment declaring the parties’ rights under the insurance policy. The Supreme Court granted the defendant’s motion for summary judgment and denied those branches of the plaintiffs’ cross motion which were for summary judgment, or in the alternative, to reschedule the examination under oath of the injured plaintiff. The Supreme Court concluded that the plaintiffs’ failure to cooperate with the insurer constituted a material breach of the policy. We disagree.

The Supreme Court correctly concluded that the plaintiffs had “no right to be present at each others’ examinations since the examinations were requested pursuant to an insurance policy and not as part of a legal action” (Matter of Allstate Ins. Co. v Moshevev, 291 AD2d 401, 402 [2002]; see Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471 [1981]). Nevertheless, we conclude that the defendant failed to sustain its heavy burden of demonstrating that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation so as to warrant denial of the claim (see Laiosa v Republic Ins. Co., 217 AD2d 605 [1995]; Allstate Ins. Co. v Durand, 286 AD2d 407 [2001]). Accordingly, the Supreme Court should have directed the insurance company to reschedule the injured plaintiff’s examination under oath.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant’s denial of no-fault insurance benefits, in effect, on the ground that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation was improper (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). S. Miller, J.P., Schmidt, Rivera and Spolzino, JJ., concur.

Civil Court, Kings County

313390-03

Alice Fisher Rubin, J.

This no-fault action was brought to recover judgment in the amount of $2,517.00, and statutory legal fees and interest from May 2, 2000, for prescribed orthopedic devices provided by Ultimate Medical Supplies to Cedric Wright. Plaintiff provided bills to Defendant, Lancer Insurance Company (Lancer). Defendant denied payment claiming the defense of medical necessity. Plaintiff commenced this action against Lancer by service of a summons and complaint.

A trial was held before this Court on June 8, 2004.and June 9, 2004. At the conclusion of the trial, both parties were advised that the Court would accept post trial memorandums of law to be submitted on or before June 25, 2004. Defendant submitted a timely memorandum; plaintiff did not submit.

Plaintiff’s case consisted of the testimony of Peter Tiflinsky, principal of plaintiff Ultimate Medical Supplies, Inc., and the admission of five exhibits, including three bills, a medical supply invoice, a delivery receipt for a TENS Unit and the comprehensive report of Dr. Opam, together with his letter of May 23, 2001.

Defendant’s case consisted of the testimony of Dr. Francine Moshkovski (the doctor who performed the independent medical examinations and the peer review) and four exhibits, including a delay letter, an NF-10 denial, a subpoena with an affidavit of service upon the claimant/assigner, and a copy of Dr. Moshkovski’ s peer review report.

Defendant’s post-trial memorandum listed five issues involved in this matter. Those issues include: Receipt of Dr. Moshkovski ‘s testimony; the failure of the Plaintiff to prove a valid assignment; the failure of the Plaintiff to prove any evidence as to the necessity for a LSO; the contested evidence as to the medical necessity; and the evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

The Court will address each of the issues in the order listed.

1. Dr. Francine Moshkovski’s Testimony

It is well established law that one testifying as an expert “should be possessed of [*2]the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” Marrot v Ward, 48 NY2d 455, 459, 423 NYS2d 645. Dr. Moshkovski testified that she was a graduate of a medical school, received post-graduate training in the field of physical medicine and rehabilitation, and was qualified as a diplomat of the American Board of Physiatrists. She further testified that her medical speciality dealt with the treatment of muscular-skeletal and neuro injuries and conditions, and the relief of pain. She has practiced and taught in her field for 17 years. Furthermore, after stating her qualifications, the witness testified without objection.

It is also established law that the Trial Judge need not “certify” the witness as an expert. People v Gordon, 202 AD2d 166, 608 NYS2d 192, lv den 83 NY 911. It is the Court’s opinion that Dr. Moshkovski met the standards to qualify as an expert.

2. The Plaintiff’s Prima Facie Case

Defendant, in its closing statement and in its post-trial memorandum, argues that Plaintiff has not established a prima facie case. Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Advanced Medical Rehabilitation P.C. v Travelers Property Casualty Insurance Co. N.Y.L.J. March 25, 2004, p. 19, col. 3. The second element was stipulated to and is not an issue. Despite Defendant’s contention that there was no assignment, there was a concession made by Defendant during the testimony of Plaintiff witness, Peter Tiflinsky. Plaintiff had offered a delivery receipt into evidence (Plaintiff No.1). Mr. Tiflinsky testified that he witnessed the assignor, Cedric Wright, sign the document. Plaintiff moved the document into evidence. Defendant objected. Additional questions were asked of the witness. At the conclusion of the round of questions, Plaintiff offered the document into evidence again, stating: “I offer this document into evidence once again in so far as the witness testified that he observed the assignee signing this document.” (P. 16). Defendant asked “for what purpose?”: Plaintiff responded, “verifying his signature on the assignment we are standing to sue here today.” Defendant’s responded: “I have no problem with it going in as an assignment, your Honor.” At the time of trial, the Court ruled Plaintiff had met the requirements of establishing its prima facie case. Upon review of the transcript and the evidence, the Court stands by its ruling.

3. The failure of the Plaintiff to prove any evidence as to the necessity for a LSO .

It was stipulated that all bills were sent timely and a verification request was made timely and a narrative from the referring physician and a letter of medical necessity for a custom fitted LSO was submitted timely. The denials were based on the peer review ‘s lack of medical necessity.

Dr. Moshkovski testified that she can find no support in the medical reports furnished to her by the Plaintiff for a prescription for a Lumbosacaral support. However, Plaintiff’s evidence #

5, the report of Metropolitan Multi-Special Medical Center P.C., dated February 20.2001, p. 4. Indicates that a cervical pillow, lumbar support, massager, car seat and ice packs were prescribed. [*3]

Defendant’s post-trial memorandum indicates that Dr. Moshkovski’s Peer Review Evaluation indicated that the prescription was signed by Dr. Schwartz. There is no testimony from Dr. Moshkovski, (but there was mention of Dr. Schwartz in her Peer Review Report which was in evidence), or anyone else to determine who Dr. Schwartz is. Nonetheless, there is no question in the Court’s mind that Dr. Opam had recommended such a device and indicated in his report that such a device had been prescribed.

4. The contested evidence as to the medical necessity.

Dr. Moshkovski testified that based on her experience none of the prescribed durable medical equipment are necessary. She cited to no authority other than her own experience. More telling as to her bias was her response to Plaintiff’s question on cross-examination where she was asked: “I’ m asking you, isn’t it a fact that you took the tests that were in the report that worked for you and included them in your peer review and left out the ones that went against you?” Yes or no? (p. 75, L. 14-17)

Dr. Moshkovski’s response: “I’ll say yes” . (P. 15 L. 18)

It is clear to the Court that Dr. Moshkovski admitted to never prescribing any of the medical equipment, with the sole exception of ice packs, on no basis other than her own opinion. Such an opinion is biased against the prescribing doctor as to make the peer review a nullity and not credible.

5. The evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

Defendant argues in his post-trial memorandum that the Plaintiff stands in the shoes of the assignor, Cedric Wright. Plaintiff’s only benefits are based upon the rights that have been assigned to him by Mr. Wright. It is Defendant’s contention that since there is no proof of an assignment; therefore the Plaintiff has no standing to sue and the case should be dismissed. The court has ruled, both at trial and in this decision, that Plaintiff has met the burden of establishing a prima facie case. Therefore, the motion to dismiss is denied.

A subpoena was served upon Mr. Wright, which was ignored. Defendant, therefore, wishes the court to consider Mr. Wright a missing witness and infer that the testimony of Mr. Wright would not support the contentions of Plaintiff. The burden is on the party who seeks the benefit of the inference to establish that there is a witness who can give material evidence, Fremont v Metropolitan S. R. Co., 83 App Div 414, 82 NYS 307. Also, the party seeking the charge has the burden to notify the court as soon as practicable, and to establish that there is an uncalled witness believed to have knowledge on a material issue; that the witness can be expected to testify favorably to the opposing party, and that such party has not called the witness, Papa v New York, 194 AD 527, 598 NYS2d 558. Other than moving the subpoena into evidence without objection, there was no offer of proof to satisfy the requirement of notification to the Court about this witness. The other requirements of a missing witness charge, had this been a jury trial were also unsatisfied since there was no discussion on the record, other than the offering of the subpoena into evidence and the arguments made in the post-trial memorandum. Therefore, the Court declines to infer negative testimony would be elicited had Mr. Wright appeared. [*4]

Based on all of the foregoing items, the Court hereby directs the clerk of the court to enter judgement in favor of the Plaintiff and against Defendant, in the amount of $2,517.00, plus statutory legal fees and interest from May 2, 2000.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

December 17, 2004

_______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim form, 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 Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]; 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 deny the claim within the 30-day prescribed period (11NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The affidavit submitted by defendant’s investigator supported by the examination under oath of plaintiff’s assignor was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do [] not rise out of an insured incident” (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, since defendant [*2]demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 577 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered January 6, 2004, denying their motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for services rendered to their assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted a claim, setting forth the fact and the amount of the loss [*2]
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 deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the [*3]
existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: December 15, 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 (P. Sweeney, J.), entered January 13, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,737 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff established a prima facie case of entitlement to summary judgment by the submission of complete proofs of claims setting forth the fact and the amount of the loss sustained, and that payment was overdue (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Plaintiff’s claims in the amount of $1,737 were not denied until more than 30 days after they were submitted (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]), the insurer was precluded from raising most defenses including lack of medical necessity. Accordingly, plaintiff’s motion for summary judgment should have been granted.

We find respondent’s contention concerning the timeliness of the appeal to be without merit.
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 2, 2004, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover $2,190 in first-party no-fault benefits for medical supplies it provided to its assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment, which motion was denied.

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d
128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Consequently, the burden shifted to defendant to raise a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])

It is uncontroverted that defendant’s May 2002 denial was untimely. The court below correctly noted that defendant was not thereby precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), thus raising an issue of fact warranting denial of plaintiff’s motion for summary judgment (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 [*2]Misc 3d 139[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists]).
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Prus, J.), entered February 18, 2004, denying their motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted a claim, setting forth the fact and the amount of the loss [*2]
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 deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the [*3]
existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.

Decision Date: December 14, 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 (L. Baily-Schiffman, J.), entered January 6, 2004, denying its motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see [*2]
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 deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the [*3]
existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: December 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 10, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. McDonald, Carroll, Cohen & Rayhill, New York City (Thomas J. Reilly of counsel), for respondent.

{**6 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover assigned no-fault benefits, plaintiffs submitted the affidavit of David Safir, wherein he states that he is the “practice and medical billing manager of plaintiff.” The affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. v Allstate Ins. Co., 3 Misc 3d 129[A], 2004 NY Slip Op 50373[U] [App Term, 2d & 11th Jud Dists 2004]). Accordingly, plaintiffs failed to establish a prima facie entitlement to no-fault benefits and their motion for summary judgment was properly denied.

We note that the trial court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs did not submit admissible proof authenticating the signature of plaintiffs’ assignor on the assignment form. The insurance regulations, however, do not require that a claimant’s signature be authenticated. Pursuant to the insurance regulations, a health care provider is only required to submit to the insurer a “properly executed assignment” on (1) the [*2]prescribed verification of treatment by the attending physician or other provider of service form (NYS form NF-3), or (2) the prescribed verification of hospital treatment form (NYS form NF-4), or the prescribed hospital facility form (NYS form NF-5), or (3) the prescribed no-fault assignment of benefits form (NYS form NF-AOB) (11 NYCRR 65-3.11 [b] [2]). A health care provider thus satisfies its burden by proof of submission of an assignment to the insurer that conforms to the regulations.

We further observe that defendant’s failure to seek verification of the assignment, or to allege any deficiency in the assignment in its denial of claim form, constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., {**6 Misc 3d at 72}6 Misc 3d 68 [2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists 2001]).

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

Civil Court of the City of New York, Kings County

115723/04

Bruce Newborough, P.C., Brooklyn, New York for the plaintiff; McDonell & Adels, P.C. (Lisa E. Hechler), Garden City, New York for the defendant

Ellen Gesmer, J.

The verified complaint alleges that Arthur Scott was injured in a car accident on March 20, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under the No-Fault Insurance Law §5101 et seq. Plaintiff brings this action, as the assignee of Mr. Scott, to recover $1,340.30 in first party no-fault benefits. Defendant moves for summary judgment on the grounds that plaintiff engaged in a pattern of fraudulent billing practices and has failed to verify its billing for the instant claim. Plaintiff failed to oppose defendant’s motion. Therefore the Court will decide this matter solely on defendant’s moving papers and annexed documentation.

Defendant maintains that it is issued a timely denial because it received the bill at issue on June 16, 2003, issued a request for additional verification on June 27, 2003 and, after [*2]receiving no response from plaintiff, ultimately denied plaintiff’s claim on December 1, 2003. However, defendant’s moving papers do not include any proof of mailing of its request for verification (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). The affidavit of Ms. Dawn Madalone an Investigator employed by defendant’s Special Investigations Unit does not establish mailing because Ms. Madalone does not state in her affidavit that she has personal knowledge that the requests were sent to plaintiff (Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2d Dept 1996]). Nor does the Madalone affidavit create a presumption of mailing because it does not describe the standard operating procedures plaintiff uses to ensure that its verification requests are mailed (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). Consequently, having failed to establish that it mailed the requests for verification, defendant has failed to show that its denial of plaintiff’s claim was timely. The fraud which defendant is claiming as a defense to payment of this claim is fraud by the plaintiff medical provider. Although an untimely denial permits a defendant to assert a defense of fraud by the assignor, a claim of fraud by the assignee must be asserted in a timely denial (Melbourne Medical, P.C. v Utica Mutual Ins. Co., 4 Misc 3d 92 [2d Dept 2004]). Consequently, defendant’s motion for summary judgment must be denied.

Even if this claim were not barred by the late denial, defendant would not be entitled to summary judgment in its favor. In order to satisfy its burden on a motion for summary judgment, defendant “must show that the accident was a deliberate event or a part of an insurance fraud scheme.” (A.M. Med., P.C. v NY Cent. Mut. Ins. Co., 2004 NY Slip Op 50298U, *2 [Civil Ct, Queens County 2004]). This is higher than the standard when the defendant is merely opposing a plaintiff’s motion for summary judgment based on a fraud defense; in that event, defendant must submit “facts, in admissible form and with the requisite particularity, to create triable issues of fraud” (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004), such as an affidavit by a person with personal knowledge of the facts at issue (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004].

In support of its contention, defendant submits the transcript of the Examination Under Oath (EUO) of Dr. Patricia Garel, in which Dr. Garel states that she never provided psychological services to any of plaintiff’s patients although plaintiff submitted claims to defendant seeking reimbursement for psychological services allegedly rendered by her. However, the transcript of Dr. Garel’s EUO is not executed in accordance with CPLR 3116. CPLR 3116[a] provides that the transcript must be submitted to the witness so that the witness can read it and make any changes to it that are desired. If the witness then signs the transcript under oath, the transcript may be utilized. “Unsigned depositions do not suffice as proof requisite to defeat a motion for summary judgment.” (Pathmark Graphics Inc. v J.M. Fields, Inc., 53 AD2d 531 [1st Dept 1976]; see also Lo Cicero v Frisian, 150 AD2d 761 [2d Dept 1989]). This principle applies equally to an examination under oath taken by an insurance company. (Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 263 [2d Dept 1984]).

In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the [*3]party proffering the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed (see Siegel, 1993 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Pocket Part, at 94). A party seeking to use an unsigned deposition transcript must show that the witness was given the opportunity that CPLR 3116 (a) provides to the witness to make sure that the transcript is correct in form and substance. This procedure is necessary to insure that the proponent of the transcript is not relying on an inaccurate transcript (Palumbo v Innovative Communications Concepts, 175 Misc 2d 156, 157-158 [Sup Ct, NY 1997]). In this case, defendant annexes a copy of a letter dated October 21, 2003 addressed to Dr. Garel’s attorneys requesting that she sign the transcript and have it notarized, but defendant does not proffer an affidavit of a person with personal knowledge that this letter was in fact mailed. Consequently, defendant has not shown either that the transcript was properly executed or that the opportunity that CPLR 3116[a] affords the depondent for execution has passed. Therefore, the Court cannot consider the EUO transcript of Dr. Garel because it does not constitute evidence in admissible form under CPLR 3212 (See Reilly v Newireen Assocs., 303 AD2d 214, 220 n.2 [1st Dept 2003]).

In further support of its fraud claim, defendant again relies on the affidavit of Ms. Madalone who states in her affidavit that defendant properly denied plaintiff’s claim based on overwhelming indica of fraud. Ms. Madalone states that her knowledge of the case comes from:

1. Her “review of the file which she maintained, ” 2. Her investigation into plaintiff’s billing practices; 3. A New York State Insurance Department press release concerning the indictment of Dr. Michael Ferrato, Ph.D of Ferrato Psychological Services, P.C. (FPS) 4. Claim forms submitted to defendant by PSG and FPS for various unidentified patients other than plaintiff’s assignor; 5. The transcripts of EUOs of Darcy Greenidge and Allan Gaskin; and 6. The Examination Before Trial (EBT) transcripts of Henry Johnson and Aida Ellis The Court cannot rely on any conclusions reached by Ms. Madalone which are based on unidentified documents in defendant’s investigative file since those documents are not before the court in admissible form (see CPLR 3212[b]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The Court also cannot rely on the press release concerning the indictment of Dr. Ferrato since it is not in admissible form. Even if it were in admissible form, Ms. Madalone has failed to establish the relevancy of the indictment to this case since Dr. Ferrato did not treat the assignor in this case. Defendant also annexes to its moving papers reams of redacted documents which the Madalone affidavit contends proves that FPS submitted bills to defendant for the exact same services as those claimed by PSG for the same patient just days apart from the date when PSG claimed to have rendered services. However, since the name of the policy holder, the patient’s name, gender and address are redacted from the documents, there is no way for the Court to make an independent determination as to whether the documents in fact support defendant’s contention. More importantly, the documents are not in admissible form since they are not adequately identified (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004). Therefore, the Court cannot rely [*4]on Ms. Madalone’s conclusion that these documents prove fraud.

Finally, like the transcript of the EUO of Dr. Garel, the transcripts of the EUOs and EBTs of Ms. Greenidge, Mr. Gaskin, Mr. Johnson and Ms. Ellis cannot be considered on a motion for summary judgment, since they are not executed and the defendant has failed to show that the deponents were given an opportunity to execute the transcripts.

Consequently, all of the documents relied on by Ms. Madalone cannot be considered by this Court in support of defendant’s motion for summary judgment because the documents are not in admissible form. Therefore, defendant failed to satisfy its burden to submit facts in admissible form and with the requisite particularity to establish fraud. Accordingly, defendant’s motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

Dated: December 8, 2004

ELLEN GESMER

Judge, Civil Court