SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 8, 2007, deemed from a judgment of the same court entered April 26, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 8, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,948.88.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, contending, inter alia, that issues of fact exist as to whether plaintiff timely submitted its claims to
defendant. The court granted plaintiff’s motion for summary judgment, finding that defendant waived its defense of untimeliness, since defendant failed to advise plaintiff that the claim would be reconsidered upon a showing of impossibility to timely submit the claims. This appeal by defendant ensued.

The affidavit of defendant’s claims representative submitted in opposition to plaintiff’s motion, and the denial of claim forms annexed thereto, demonstrate that defendant denied a number of plaintiff’s claims on the ground that they were not timely submitted (see generally Insurance Department Regulations [11 NYCRR] § 65.12). However, since none of the denial of claim forms correspond to the claim forms upon which plaintiff seeks summary judgment, defendant failed to establish that it timely denied the subject claims. As a result, defendant failed to raise a triable issue of fact with respect to the claims at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the judgment is affirmed, albeit on other grounds. [*2]

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 08, 2009

Supreme Court, Kings County

5647/06

Plaintiff Attorney:Lawrence N. Rogak, LLC

Defendant Attorney:Brooke Lombardi, Esq.

Subin Associates LLP

Yvonne Lewis, J.

Counsel for Long Island Insurance Company has petitioned this court for a tripartite order to restore this action to the active calendar on the grounds that it was ministerially marked disposed by clerical error, amend the petition to include the affirmative defenses of fraud and lack of capacity to contract (renewal policies) since the insured is deceased, and grant it summary judgment on the basis of newly discovered evidence heretofore concealed by the respondent; to wit, the respondent, the pedestrian victim of a hit and run on November 16, 2005, intentionally failed to disclose (to the petitioner/insurer) that his father, who died on July 10, 2001, was the named insured under the insurance policy through which he asserts his claims for no-fault and uninsured motorist benefits and continued to renew bi-annually despite his passing. In addition, the petitioner notes that the subject policy itself provides, in salient part, that it may not be assigned without its written consent; that upon the death of the named insured, coverage will be provided for the legal representative (a role which the respondent has not established for himself herein) only with respect to the legal representative’s responsibility to maintain or use the covered vehicle; and, that the coverage will extend only until the end of the policy period, in this instance April 28, 2002. The petitioner notes further that Couch on Insurance, 3d Ed., §29:13 clearly provides that there is no contract to renew in the absence of a clear intent to that effect; that

“. . .because contract requires mutual assent of parties and meeting of minds, no contract can be formed between insurer and decedent (citing, Von Hillman v. colonial Penn Ins. Co., 19 Kan. App.2d 375, 869 P2d 248[1994]); and, that “a representative of a deceased insured’s estate has no authority to renew the policy in the insured’s behalf without informing the insurer of the insured’s death.”

As further evidence of the respondent’s duplicity, the petitioner notes that in December 2006, he cashed a partial premium refund with the “obviously” forged signature of his father, and that in an examination under oath conducted on May 16, 2008, the respondent testified that his [*2]father (who died on July 10, 2001) was the policyholder, furnished his father’s current address, and advised that he never owned a car and that he drove his father’s.

Counsel for petitioner furnished a supplemental affirmation in support of his request for summary judgement on the basis of the October 10, 2008 Appellate Division, Fourth Department case of Geico Ins. Co. v. Battaglia, 2008 NY Slip Op 07736, which held that the subject Insurance Company had “. . .established as a matter of law that its policy, as renewed, was void ab initio based on the material misrepresentation with respect to the [insured’s] status, i.e., that [the insured] was deceased” (referencing, Matter of Mercury Ins. Group v. Ocana, 46 AD3d 561). Counsel also notes that his initial October 11, 2007 motion to stay the arbitration had been denied without prejudice for his inadvertence in not having included a complete copy of the subject policy in his moving papers.

In opposition, counsel for Israel Greenfield, the respondent herein, asserts that the motion to restore should be denied inasmuch as the court repeatedly set motion schedules for petitioner to file orders to show cause on the ground of the insured’s undisclosed death, failed to adhere to the same, and instead filed the instant motion for summary judgment on the same ground. In addition, counsel argues that the request to amend the petition must also be denied as untimely inasmuch as CPLR §3024( c) clearly provides that a motion to correct pleadings shall be served within twenty days after service of the challenged pleading. Furthermore, counsel urges this court to deny the petitioner’s motions for a permanent stay of arbitration and for summary judgment as moot given that an arbitration hearing was held on September 10, 2008, the petitioner had a full and fair opportunity to participate therein, and the plain fact that an arbitrator’s award may not be vacated unless it is found that the arbitrator’s award lacked a rational basis (citing, Matter of Prudential Pro. & Cas. Ins. Co. v. Carleton, 145 AD2d 492 [2d Dept., 1988]). So too, CPLR Rule 3211 provides for dismissal of an action on the ground that an arbitration award has been rendered.

Respondent additionally argues that the petitioner’s allegation of fraud and lack of capacity to have renewed the subject insurance policy does not meet the separate standards for a stay of arbitration which requires a prima facie showing of non-coverage and summary judgment that necessitates a demonstration as to the absence of material issues of fact. To the contrary, the respondent maintains that though his father was the named insured he is nonetheless covered under the subject policy as a listed driver and hence an additional named insured on which basis he continued to renew the said policy rather than the imputed intent to wilfully conceal, deceive, misrepresent, or mislead that the petitioner alleges. The respondent also argues that his unfamiliarity with the terms of the policy and any requirement to disclose his father’s death is attributable solely to the fact that he was merely an additional insured and not a party to the initial contract; hence, a mistake or oversight, not fraud.

The petitioner has also moved this court, pursuant to CPLR 7511, for an order to vacate the arbitration award in the matter sub judice on the ground that there was no valid agreement to arbitrate. In fact, the petitioner asserts that the American Arbitration Association proceeded with its scheduled arbitration on September 10, 2008 despite having been advised that a request for a permanent stay of arbitration had been made to this court. In addition, the renewed policy under which the petitioner sought no-fault and uninsured motorists benefits was void ab initio (prior to the date of the subject accident) due to the policyholder’s unreported death. The petitioner also [*3]notes that its request for a temporary restraining order to stay the mentioned arbitration was denied by this court, following which on October 15, 2008, the respondent (son of the decedent policyholder) was awarded $100,000.00.

In opposition, the respondent asserts that none of the CPLR 7511 grounds for vacatur of an arbitration award has been met by the respondent who participated in the process by submitting discovery materials in connection therewith; to wit, respondent has not established that his rights were prejudiced by corruption, fraud, or misconduct in procuring the award; partiality of the arbitrator; the arbitrator exceeded his powers; the arbitrator failed to make a final and definite award; or a procedural failure that was not waived. In addition, the respondent contends that petitioner’s failure to have moved for a stay of arbitration prior to its conduct renders the present motion therefor untimely (citing, Bevona v. Valencia, 191 AD2d 192, 594 NYS2d 223 [1st Dept., 1993]) as does his participation in said proceeding via the discovery materials submitted and reviewed by the arbitrator who also gave the petitioner thirty days post arbitration to submit documentation in support of its contentions which identically undergird its motions for summary judgment and to vacate. Furthermore, the respondent notes that the purported affidavit in support of the petitioner’s motion to vacate is fatally defective in that its president’s signature is absent therefrom. In any event, the respondent argues that the failure to have apprised the insurer of the insured’s death in no way increased the former’s risk such that it can be said that the policy would not have been renewed in the respondent’s name. In this vein, the respondent asserts that cancellation of an automobile insurance policy may be prospective only, even if the application is deceptive or fraudulent (citing, Aetna Cas. & Surety Co. v. O’Connor, 8 NY2d 359; Matter of Liberty Mutual Ins. Co. v. McClellan, 127 AD2d 767; Middlesex Ins. Co. v. Carrero, 103 AD2d 694; and Teeter v. allstate Ins. Co., 9 AD2d 176, Aff’d 9 NY2d 655), and argues that “an insurer should not be permitted to raise fraud, which should have been discoverable upon a reasonable inquiry, as a basis for denying coverage to innocent third parties injured in an accident” (citing New Hampshire Indemnity Co. v. Flores, 2002 NY Slip Op 40024 [1]).

In addition to opposing the petitioner’s motion to vacate, the respondent has moved, pursuant to CPLR §7510, to confirm the above mentioned arbitration award decided on October 20, 2008. In support of that request, the respondent reasserts the fact that no stay had been in effect on September 10, 2008 when the arbitration was held, and that the petitioner’s request for a temporary restraining order on October 3, 2008 was denied. In addition to remaking its arguments in opposition to vacatur, the respondent notes that CPLR §7510 makes it clear that the court shall confirm such an award within one year after its delivery unless the same is vacated or modified upon a ground specified in CPLR §7511, none of which has been met by the petitioner, as discussed above.

In response, the petitioner reasserted its arguments in support of vacatur to the effect that the instant renewed insurance policy under which the arbitration was conducted was void ab initio as a result of the respondent having concealed the fact that his father, the policyholder, had died a little over four years prior to the subject accident.

This court agrees with the petitioner’s assertion that “because contract requires mutual assent of parties and meeting of minds, no contract can be formed between insurer and decedent (citing, Couch on Insurance, 3d Ed., §29:13 and Von Hillman v. colonial Penn Ins. Co., 19 Kan. [*4]App.2d 375, 869 P2d 248[1994]). It must also be conceded, as asserted by the respondent, that a stay of arbitration requires a prima facie showing of non-coverage and summary judgment necessitates a demonstration as to the absence of material issues of fact.

It is the respondent’s position that although his father was the named insured he is nonetheless covered under the subject policy as a listed driver and hence an additional named insured on which basis he continued to renew his father’s policy rather than the imputed intent to wilfully conceal, deceive, misrepresent, or mislead that the petitioner alleges. That the respondent was holding himself out as his father and had a fraudulent intent in renewing his father’s policy is made clear by his answers to the examination under oath wherein he identified his father as the insured, furnished his then deceased father’s current residential address, etc. and his earlier cashing of a refund check made out to his then deceased father.

In the Matter of Fireman’s Fund Insurance Company v. Freda, 156 AD2d 364, 548 NYS2d 319, the Appellate Division, Second Department, made it clear that the insurer waived any right to assert grounds not raised as a basis for denying coverage in its original letter of disclaimer in its petition to stay arbitration (citing, Insurance law §3420[d]; General Acc. Ins. Group v.Cirucci, 46 NY2d 862, 414 NYS2d 512). In said case the insurer had initially only asserted that the injured person was not a covered person and had not raised claims of untimely notice, failure to promptly send copies of legal papers, and settlement without its consent which were therefore deemed waived. The court went on to add, [h]owever, the first ground, that [the injured party] was not a “covered person,” constitutes a potentially valid basis for the denial of liability because Fireman’s Fund made no contract of insurance with the person injured in the accident (citing, United Serv. Auto. Assn. v. Meier, 89 AD2d 998, 454 NYS2d 319). Consequently, Fireman’s Fund was not required by Insurance law §3420(d) to give timely written notice of its first asserted ground for disclaiming coverage (citing, Zappone v. Home Ins. Co., 55 NY2d 131, 447 NYS2d 911; Matter of Aetna Cas. & Sur. Co. v. Facciponti, 133 AD2d 60, 519 NYS2d 3). The court thereupon remitted the matter for an evidentiary hearing to determine if in fact the injured party had been a resident of the household of the policyholder on the date of the accident as a condition precedent to arbitration.

In the instant case, there is no issue to be decided by evidentiary hearing since, assuming arguendo, that the respondent had effectively renewed the insurance policy herein, the plain fact is that he could not by any stretch of the imagination, much less contractual definition, logic, or common sense have been a resident of the decedent’s household since that is legally and factually impossible.

The issue of a stay of arbitration has been rendered moot since it was held and a decision rendered. However, an arbitrator’s award may be vacated on the grounds specified in CPLR 7511(b); to wit, (i)corruption, fraud, or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency, or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection. In the matter sub judice, this court finds that the arbitrator did exceed his power in having made an award in an instance where no coverage existed. Put another way, the arbitrator in order to have arrived at his decision was [*5]necessarily required to make a finding that the respondent was a “covered person;” i.e., a member of the insured’s household which in this instance would have called for him to “absurdly” find that the respondent was resident of a Ghost’s household. Consequently, this court hereby vacates the arbitrator’s October 20, 2008 ruling, above referenced, on the basis of irrationality and grants summary judgment to the petitioner on the issue of non-coverage inasmuch as it has been irrefutably established that the respondent was not a covered person. The petitioner and respondent’s respective motions to confirm said award and to amend are accordingly denied as moot. This constitutes the decision and order of this Court.

_________________________________

JSC

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered October 26, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment upon its claims seeking the sums of $240.20 and $1,201.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claims for $240.20 and $1,201 and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Insofar as is relevant to this appeal, defendant
opposed the motion, asserting that it timely denied plaintiff’s claims seeking the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While defendant asserted that it timely denied plaintiff’s claims for the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two scheduled IMEs, defendant failed to establish by proof in admissible form that the IME requests were timely mailed to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v [*2]Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.
Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on its claims for $240.20 and $1,201 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered July 12, 2007. The order, insofar as appealed from, granted plaintiff’s motion to vacate an order granting, on plaintiff ‘s default, a motion by defendant for summary judgment, and, upon such vacatur, denied defendant’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought to vacate the order granting defendant’s motion for summary judgment and, upon such vacatur, to deny defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court below granted defendant’s motion for summary judgment on default. Thereafter, plaintiff moved, inter alia, to vacate the order entered upon its default and, upon such vacatur, to deny defendant’s motion for summary judgment. Plaintiff’s counsel alleged in the moving papers that the default was due to law office failure. By order entered July 7, 2007, the Civil Court, insofar as relevant to this appeal, granted plaintiff’s motion to vacate the order entered upon its default and, upon such vacatur, denied defendant’s motion for summary judgment.

To be relieved of its default, plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). The conclusory, undetailed and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). Plaintiff’s counsel offered no explanation in the motion papers as to why he failed to submit written opposition to the motion or appear on the adjourned date of the motion. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought to vacate the order entered upon its default and, upon [*2]such vacatur, to deny defendant’s motion for summary judgment is denied.

In view of the foregoing, we pass upon no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order and decision (one paper) of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated May 16, 2007. The order and decision denied plaintiffs’ oral motion at trial for a finding that a prior order, which provided that plaintiffs’ motion for summary judgment made a prima facie showing, dispensed with plaintiffs’ need to establish a prima facie case at trial, and dismissed the complaint upon plaintiffs’ failure to present evidence following the denial of their motion.

Appeal dismissed.

When the instant action to recover assigned first-party no-fault benefits was called for trial, plaintiffs orally moved for a determination that a prior order, which stated that plaintiffs’ motion for summary judgment made a prima facie showing (although
plaintiffs’ motion was ultimately denied on the ground that an issue of fact had been raised), dispensed with plaintiffs’ need to establish a prima facie case at trial. The court denied plaintiffs’ motion and then dismissed plaintiffs’ complaint because plaintiffs presented no evidence. No judgment was entered. This appeal by plaintiffs from the court’s order and decision ensued.

To the extent the court denied plaintiffs’ oral motion, no appeal as of right lies from an order which does not decide a motion made on notice, and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent the court dismissed plaintiffs’ complaint, no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]). [*2]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008

[*1]

Civil Court of the City of New York, Richmond County, December 31, 2008

APPEARANCES OF COUNSEL

Emilia I. Rutigliano, Brooklyn, for plaintiff. James F. Sullivan, New York City, for defendant.

{**23 Misc 3d at 240} OPINION OF THE COURT

Katherine A. Levine, J.

{**23 Misc 3d at 241}Plaintiff, Yklik Medical Supply, Inc., a medical supply provider, brings this action pursuant to Insurance Law § 5106 (a) to recover $317 in unpaid bills for medical equipment it provided to its assignor Tammy Agosto, with statutory interest and attorney fees. Yklik moves for summary judgment based upon a claimed prima facie showing that its bills were properly submitted and that the defendant Allstate Insurance Company failed to pay or deny the claim within 30 days. Plaintiff also asserts that defendant’s denial was untimely.

Defendant Allstate Insurance Company opposes the motion, asserting that plaintiff has failed to establish a prima facie case since the affidavit of plaintiff’s billing manager is not based on his personal knowledge of the plaintiff’s office practices and billing procedures. Of greater import, Allstate contends that since plaintiff’s claims were in excess of the fee schedule contained in the Workers’ Compensation Law, and since defendant made a partial payment to plaintiff, a triable issue of fact exists as to whether defendant paid the appropriate amount for medical services, hence mandating a denial of summary judgment.

A medical provider must limit its charges to those permitted by approved fee schedules (Insurance Law § 5108 [a]; 11 NYCRR 68.0 [f]) “which protects a patient from erosion of available benefits by inflated charges.” (Complete Orthopedic Supplies, Inc. v State Farm Ins. Co., 16 Misc 3d 996, 1005 n 13 [Civ Ct, Queens County 2007], citing Ops Gen Counsel NY Ins Dept No. 04-06-11 [June 2004].) The fees for services and procedures are governed by the workers’ compensation fee schedule (11 NYCRR 68.1) and durable medical goods fees are governed by the New York Medicaid fee schedule (11 NYCRR Appendix 17-C part F) (collectively referred to as fee schedule).

Ordinarily, a fee schedule dispute raises a triable issue of fact, hence defeating a plaintiff’s motion for summary judgment. (Complete Orthopedic Supplies at 1005.) However, plaintiff contends that defendant is barred from even raising the defense that the bills exceeded the fee schedule or partial payment of the claim because defendant failed to submit a timely denial. In its papers in opposition, defendant summarily asserts that it issued a timely denial. However, during oral argument, defendant asserted that since it paid the bills in accordance with the fee schedule, and since plaintiff is not entitled to be compensated in excess of the fee schedule, that it need not file a timely denial or any denial.

It is clear that plaintiff has established its prima facie case. The affidavit of plaintiff’s billing manager exhaustively details{**23 Misc 3d at 242} the record keeping procedures of the business, and clearly sets forth the procedures for the creation and retention of bills, of which he has personal knowledge. (See Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1144[A], 2008 NY Slip Op 51844[U], *1 [Civ Ct, Richmond County 2008], citing Second Med., P.C. v Auto One Ins. Co., 20 Misc 3d 291, 294-295 [Civ Ct, Kings County 2008].) The affidavit further details that the bills at issue were made and kept in the ordinary course of business at the time the services were rendered and sets forth the precise mailing procedure that was followed. Moreover, the billing manager personally packaged, sealed, applied postage to and mailed the bill and supplies.

The burden then shifts to the defendant in a no-fault case to show a triable issue of fact. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) To defeat an award of summary judgment to plaintiff, defendant must provide proof, in evidentiary form, that it either paid or denied the claim within 30 days of receipt or that it asserts a nonprecludable defense. (Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139[A], 2008 NY Slip Op 51065[U] [Nassau Dist Ct 2008]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial (preclusion rule). (Park Slope Med. & Surgical Supply, Inc. v Country-Wide Ins. Co., 19 Misc 3d 1138[A], 2008 NY Slip Op 51063[U], *2 [Civ Ct, Richmond County 2008], citing Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 889-890 [2d Dept 2007]; Presbyterian Hosp., 90 NY2d at 278.)

As recently summarized by this court in Manhattan Med. (supra), the Court of Appeals has reaffirmed that there is only one narrow exception to the preclusion rule—where an insurance company raises the defense of lack of coverage. (See Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007].) In those cases the insurer who fails to issue a timely denial is not precluded from later raising this defense because “the insurance policy does not contemplate coverage in the first instance, and requiring payment{**23 Misc 3d at 243} of a claim upon failure to timely disclaim would create coverage where it never existed.” (Hospital for Joint Diseases at 318.)

Thus, the “key issue” in every case is whether the “facts fit within the narrow no-coverage exception to the preclusion rule” (10 NY3d at 564). A court, in determining whether a specific defense is precluded under the 30-day rule or falls within the exception, must assess whether the defense is more like a “normal exception” from coverage such as a policy exclusion or a lack of coverage in the first instance, i.e., a defense “implicat[ing] a coverage matter.” (10 NY3d at 565.)

The typical defenses that fall within the rubric of lack of coverage are that of a staged automobile accident (Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 284 [2d Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2d Dept 2006]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d Dept 2004]); where the claimant’s injuries arose out of a prior work-related accident rather than a car accident (Chubb, 90 NY2d 195 [1997]); or where the insurance company has articulated a founded belief that the plaintiff is fraudulently incorporated (Bay Plaza Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 1102[A], 2008 NY Slip Op 51925[U] [Civ Ct, Richmond County 2008]; Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP, 13 Misc 3d 970 [Civ Ct, Richmond County 2006]).

A medical provider must limit its charges to those permitted by approved fee schedules (Insurance Law § 5108 [a]; 11 NYCRR 68.0 [f]) “which protects a patient from erosion of available benefits by inflated charges.” (Complete Orthopedic Supplies, Inc. v State Farm Ins. Co., 16 Misc 3d 996, 1005 [2007], citing Ops Gen Counsel NY Ins Dept No. 04-06-11 [June 2004].) The fees for services and procedures are governed by the workers’ compensation fee schedule (11 NYCRR 68.1) and durable medical goods fees are governed by the New York Medicaid fee schedule (11 NYCRR Appendix 17-C part F). An insurer who raises this defense will prevail if it demonstrates that it was correct in its reading of the fee schedules unless the plaintiff shows that “an unusual procedure or unique circumstance justifies the necessity” for a charge above the schedules’ fee (11 NYCRR 68.4; Complete Orthopedic Supplies, 16 Misc 3d at 1005). However, before this defense can be invoked an insurer must prove a timely denial.{**23 Misc 3d at 244}

In Fair Price (10 NY3d 556 [2008]), the Court distinguished the defense that the assignor never received the medical supplies from the plaintiff from the defense raised by the insurance company in Chubb (supra)—that the claimant’s injuries arose out of a prior related accident rather than a car accident. Only the latter—”a lack of coverage” defense—fell outside the preclusion rule since if in fact the injuries were unrelated to the accident, the treatment would not have been covered by the automobile liability policy in the first instance. (10 NY3d at 564, quoting Chubb at 199.) The defense that the billed-for services were never rendered, on the other hand, was more akin to a normal exception from coverage, like the defense of billing for unnecessary procedures found by the Chubb court to fall within the preclusion rule. (10 NY3d at 564, citing Chubb, 90 NY2d at 199 [overbilling does not ordinarily implicate a coverage matter].) This is so because in both situations there was [*2]an actual accident and an actual injury, where “coverage legitimately came into existence.” (Id. at 565, quoting Fair Price, 42 AD3d at 285.)

The same reasoning applies to the defense that the claims were in excess of a fee schedule. The parties do not dispute that the assignor is entitled to no-fault insurance benefits. There was an actual accident where the assignor sustained real injuries; the assignor was covered by defendant under an actual insurance policy; and the assignor was prescribed medical equipment which Yklik provided and for which the insurer was billed. Thus, an insurer can only preserve a fee schedule defense by first complying with the 30-day rule and issuing a timely denial. (Complete Orthopedic Supplies at 1005; Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U], *2 [App Term, 2d Dept 2004] [“by virtue of a timely claims denial an insurer is entitled” to raise a fee schedule defense and establish that charges exceeded those permitted by law]; see Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 [2d Dept 2008].)

In light of these opinions, it is clear that the defenses of fee schedule noncompliance and partial payment made in accordance with the fee schedule are precluded if defendant fails to disclaim coverage in timely a manner pursuant to the no-fault regulations. Here, the denial annexed to plaintiff’s papers as exhibit 3 reveals that defendant received the claims on July 10, 2007 and mailed the denial on September 4, 2007, waiting approximately{**23 Misc 3d at 245} 56 days to send out its denial. By failing to timely submit its denial, defendant is precluded from raising the defense of noncompliance with the fee schedule and summary judgment is granted to plaintiff.

[*1]

Supreme Court, Appellate Term, Second Department, December 31, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

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

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the two claim forms that are the subject of this action, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to defendant’s motion was based upon oral decisions set forth in trial transcripts, in three unrelated actions against another insurance company, in which the court found that plaintiff’s treating providers were employees. The court granted defendant’s motion, finding that plaintiff submitted claim forms that stated that the billed-for services were rendered by an independent contractor and implicitly holding that plaintiff was bound by the claim forms it submitted. Plaintiff appeals, arguing that an insurer may not be awarded summary judgment based upon the defense that the billed-for services were rendered by an independent contractor. Plaintiff argues further that the oral decisions by other judges of the same court contained in the trial transcripts are evidence that the treating providers were employees, thereby rebutting the information contained in plaintiff’s own claim forms and raising a triable issue of fact.

Contrary to plaintiff’s contention, the fact that health care services sued for by a professional corporation were rendered by an independent contractor is a proper basis upon [*2]which to award a no-fault defendant summary judgment dismissing the complaint made against it (see Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137[A], 2008 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists 2008]). While plaintiff claims that Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]) stands for the proposition that a plaintiff may recover even if services were rendered by an independent contractor, such an interpretation lacks merit.

A provider demonstrates its entitlement to collect assigned first-party no-fault benefits by proving the submission of its 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]). Payment is overdue “if not paid within thirty days after the claimant supplies proof of{**22 Misc 3d at 72} the fact and amount of loss sustained” (Insurance Law § 5106 [a]). A claim form seeking reimbursement for services rendered by an independent contractor does not supply proof of a loss, because

“where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a ‘provider’ of the medical services rendered within the meaning of [11 NYCRR 65-3.11 (a)] and is therefore not entitled to recover ‘direct payment’ of assigned no-fault benefits from the defendant insurer” (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]).

In the case at bar, the claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant. Plaintiff did not submit bills that entitled it to payment, and correction of the defect involved herein should not be permitted once litigation has been commenced (see generally Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007] [litigation that was commenced prior to payment becoming overdue was premature and the cause of action was dismissed]). The independent contractor defense is nonprecludable (see Rockaway Blvd. Med. P.C., 9 Misc 3d at 54). An insurer should be able to rely on the assertions in the claim form, and, in keeping with the aim of “provid[ing] substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), should be able to handle a claim for services rendered by an independent contractor accordingly without engaging in further consideration of the claim. An insurer is not obliged to issue a denial in order to assert the nonprecludable, independent contractor defense. Consequently, if a provider were to be permitted to demonstrate during litigation that the claim form was incorrect and services were, in fact, rendered by an employee, not only would the insurer, which exercised its option not to expend further efforts to defend a facially meritless claim, have lost its opportunity to conduct meaningful claims verification, but also its decision not to issue a denial would result in its preclusion from introducing most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Moreover, upon a court’s finding that services were rendered by{**22 Misc 3d at 73} an employee, and not an independent contractor as stated on the claim form prepared by the provider, an award of interest beginning to accrue 30 days after the submission of the claim form, as mandated by the no-fault regulations (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; § 65-3.9 [a]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007]), would be inequitable. Furthermore, an insurer might have [*3]timely paid a claim, had the claim form prepared by the provider not stated that the services were rendered by an independent contractor, thereby avoiding the need to retain counsel to defend an action that might have been avoided. If the provider is allowed to amend the claim form, on the other hand, plaintiff would be entitled to recover its attorney’s fees from defendant for unnecessary litigation (see Insurance Department Regulations [11 NYCRR] § 65-3.10 [a]).

In view of the foregoing, the Civil Court properly granted defendant’s motion to dismiss the complaint (but see Atlantis Med., DC v Liberty Mut. Ins. Co., 19 Misc 3d 131[A], 2008 NY Slip Op 50584[U] [App Term, 1st Dept 2008]).

We note that, under appropriate circumstances, a provider who has submitted a claim form that improperly designates the treating provider as an independent contractor could, upon realizing its mistake, submit a new claim form with the proper designation along with “written proof providing clear and reasonable justification for the failure” to submit the claim within 45 days of the rendering of services (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [Proof of Claim]). We do not pass upon whether the circumstances presented in this case would constitute “reasonable justification” for plaintiff’s failure to timely submit a proper claim.

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