SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, as denied its motion for partial summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for partial summary judgment granted in the principal sum of $2,365 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sues to recover first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff established a prima facie case by the submission of a properly
completed claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although defendant timely denied the claim for $765 within 30 days of its receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]), the peer review report upon which the denial of benefits was predicated was not in admissible form and was therefore insufficient to defeat [*2]plaintiff’s summary judgment motion. An affirmation of a chiropractor does not constitute competent evidence (see CPLR 2106; see also Cubero v DiMarco, 272 AD2d 430 [2000]).
With respect to plaintiff’s claims for $670 and $930, defendant failed to deny them within 30 days of their receipt. Thus, defendant is precluded from raising the defense of medical necessity as to those claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, inasmuch as defendant failed to raise a triable issue of fact, plaintiff’s motion should have been granted, and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,365 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: July 21, 2004

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Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered April 1, 2003. The order denied the petition for an order permanently staying arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs and the petition is granted.

Memorandum: Respondent submitted claims for no-fault insurance benefits for injuries he sustained in a motor vehicle accident in September 1995. Petitioner denied respondent’s claim for lost wages on May 6, 1996 and denied the balance of respondent’s claim on September 3, 1996. Respondent served a demand for arbitration dated August 29, 2002 via Federal Express overnight mail with signature required. Petitioner thereupon commenced this proceeding seeking a permanent stay of arbitration.

We conclude that Supreme Court erred in denying the petition. We agree with petitioner that service of the demand for arbitration by Federal Express mail is jurisdictionally defective because Federal Express mail is not one of the permitted methods of service set forth in CPLR 7503 (c) (see Matter of Spychalski [Continental Ins. Cos.], 58 AD2d 193, 196 [1977], affd 45 NY2d 847 [1978]; Matter of Yak Taxi v Teke, 41 NY2d 1020 [1977]; Matter of Nationwide Ins. Enter. [Denga], 302 AD2d 929 [2003]; Matter of Cartier v County of Nassau, 281 AD2d 477 [2001]; Matter of Metropolitan Cas. & Prop. Ins. Co. v Suggs, 268 AD2d 240 [2000]; cf. CPLR 3216; Balancio v American Optical Corp., 66 NY2d 750, 751 [1985]). We therefore reverse the order and grant the petition.

All concur except Green and Scudder, JJ., who dissent and vote to modify in accordance with the following memorandum.

Green and Scudder, JJ. (dissenting). We respectfully dissent. We disagree with the majority that the demand for arbitration by Federal Express mail is jurisdictionally defective because it is not one of the permitted methods of service set forth in CPLR 7503 (c), i.e., “in the same manner as a summons or by registered or certified mail, return receipt requested.” In our view, the procedure used herein is analogous to personal service by mail as provided for in CPLR 312-a. Furthermore, such service is the functional equivalent of registered or certified mail, return receipt requested, inasmuch as both methods provide for accountability and reliability with [*2]respect to the mailing and receipt of the demand for arbitration (see generally Secreto v International Bus. Machs. Corp., 194 Misc 2d 512, 513-514 [2003]). We therefore conclude that the demand for arbitration was properly served (see Matter of Andy Floors [Tyler Constr. Corp.], 202 AD2d 938, 939 [1994]).

Having concluded that the service is not jurisdictionally defective, we further conclude that respondent’s demand for arbitration is not time-barred with respect to the denial of respondent’s claim in September 1996. Contrary to petitioner’s contention, the demand was properly served within the applicable six-year statute of limitations (see CPLR 213 [2]; 7502 [b]; see generally Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 193 [1982], rearg denied 56 NY2d 567 [1982], cert denied 459 US 837 [1982]). The remaining issue therefore is whether respondent’s demand for arbitration is time-barred with respect to the denial of respondent’s claim in May 1996. Respondent contends with respect thereto that, by filing the instant demand, he “re-filed” a demand for arbitration that was originally filed with the New York State Insurance Department and served on petitioner on October 1, 1997. He contends that his original demand was treated by the American Arbitration Association as “withdrawn without prejudice” because of settlement. Also pending at that time was a demand for arbitration made by a medical provider to which respondent had assigned his rights. Although the record establishes that arbitration hearings were scheduled and then adjourned by the American Arbitration Association, the record does not establish whether the hearings were to be conducted with respect to respondent’s claim, the medical provider’s claim, or both.

In denying the petition, Supreme Court determined that respondent filed a demand for arbitration in 1997 and that, because petitioner participated in a prior arbitration proceeding, it is barred from now seeking a stay of arbitration (see CPLR 7503 [b]). The court’s determination that respondent filed a demand for arbitration in 1997 is unsupported by the record, which contains only a copy of a cover letter from respondent’s attorney to the New York State Insurance Department and does not contain the demand for arbitration or the other enclosures discussed in the cover letter. Petitioner contends that it received only the cover letter. Petitioner further contends that it was never served with respondent’s demand for arbitration and thus that it participated only in arbitration proceedings with respect to the medical provider.

As respondent correctly concedes, arbitration with respect to the denial of his claim in May 1996 is time-barred if it is determined that there was no prior arbitration proceeding between these parties. If, however, it is determined that there was a prior arbitration proceeding between these parties, then petitioner’s “participation in the arbitration [proceeding] constituted a waiver of any right on [petitioner’s] part to . . . obtain a stay of arbitration on statute of limitations grounds” (Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Erie County White Collar Unit Local #815 [County of Erie], 303 AD2d 1050, 1051; see CPLR 7503 [b]). We cannot determine from this record, however, whether there was any such prior arbitration proceeding and therefore conclude that the issue whether that claim is barred by the statute of limitations is a threshold question requiring a trial forthwith (see CPLR 7503 [a]). Thus, we would modify the order accordingly, and we would grant a trial with respect to that issue. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Gorski, JJ.

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Mugglin, J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered April 21, 2003 in Ulster County, which granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.

After sustaining injuries in a May 1990 work-related automobile accident, petitioner applied for and was awarded workers’ compensation benefits. In November 1992, respondent, who had commenced payment of workers’ compensation benefits shortly after petitioner’s accident, notified petitioner that it was reserving its claim to a continuing lien on any recovery for injuries or damages arising out of the May 1990 accident not constituting payments in lieu of first party no-fault benefits (see Workers’ Compensation Law § 29 [1-a]; Insurance Law § 5104 [a]). Respondent further informed petitioner of its obligation to obtain respondent’s written consent for any settlement or compromise of a lawsuit brought in connection with the automobile accident (see Workers’ Compensation Law § 29 [5]). Petitioner had, in fact, commenced a third-party action and ultimately settled the matter for $60,000 pursuant to the terms of a July 1993 agreement. It is undisputed that no attempt was made by petitioner to obtain respondent’s consent prior to executing that agreement. Citing petitioner’s failure in that regard, respondent suspended the payment of benefits in January 1994 and, thereafter, refused petitioner’s July 1994 [*2]request for retroactive consent of the settlement agreement. After affording petitioner the opportunity to provide evidence that consent was obtained, the Workers’ Compensation Board approved the termination of further benefit awards and closed the case in May 1995. In November 2002, some nine years after the execution of the July 1993 settlement agreement, petitioner sought judicial approval of the settlement nunc pro tunc. Supreme Court granted petitioner’s application, prompting this appeal by respondent.

Workers Compensation Law § 29 (5) is clear “[that] an employee must obtain the written approval of the employer or its workers’ compensation carrier prior to any settlement of a third-party action” (Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 728 [2001]; see Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19 [1994]). However, an employee also has the option of seeking judicial approval of the settlement from the court in which the third-party action is pending within three months after the case has been settled (see Matter of Stiffen v CNA Ins. Cos., 282 AD2d 991, 992 [2001], lv denied 97 NY2d 612 [2002]). Where, as here, a petitioner has failed to do either, such petitioner is barred from receiving future workers’ compensation benefits unless he or she can demonstrate that (1) the delay in submitting the application was not the result of the petitioner’s fault or neglect, (2) the settlement is reasonable and (3) the carrier was not prejudiced by the delay (see id. at 992; Matter of Wilbur v Utica Mut. Co., 228 AD2d 928, 929 [1996]). A reviewing court should also consider the length of the delay as an additional relevant factor (see Matter of Rifenburgh v James, 297 AD2d 901, 902 [2002]; Dennison v Pinke, 211 AD2d 853, 854 [1995]).

Here, the nine-year delay between the execution of the settlement agreement and petitioner’s application for judicial approval thereof was inordinate. There is no dispute that, as early as November 1992, petitioner was fully aware of respondent’s intention to assert its right to impose a workers’ compensation lien and require written consent of any third-party settlement agreement. Respondent’s intention to avail itself of this statutory remedy was further emphasized by the 1994-1995 proceedings before the Workers’ Compensation Board and in respondent’s January 1995 correspondence denying petitioner’s request for retroactive consent. Unfortunately, even in light of these circumstances, petitioner did not seek judicial approval of the settlement agreement until 2002.

Even assuming that the settlement was reasonable and respondent’s claim of prejudice not significant, in light of the above uncontroverted facts, we find unpersuasive petitioner’s attempts to characterize the delay as excusable. Under the circumstances, we must conclude that Supreme Court’s grant of petitioner’s application constituted an improvident exercise of discretion and reversal is required (see Scannell v Karlin, 252 AD2d 552 [1998], lv denied 93 NY2d 805 [1999]).

Cardona, P.J., Crew III, Peters and Rose, JJ., concur. Ordered that the order is reversed, on the law, without costs, and application denied.

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In an action to recover no-fault medical payments under insurance contracts, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated April 4, 2003, as granted those branches of the plaintiffs’ motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano, and to recover no-fault medical payments allegedly due to Brooklyn Hospital Center, as assignee of Alberto Lopez.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano, and to recover no-fault medical payments allegedly due to Brooklyn Hospital Center, as assignee of Alberto Lopez, are denied.

A complete proof of claim is a prerequisite to receiving no-fault benefits (see Insurance Law § 5106). Written proof of such a claim must be submitted to the insurance company within 180 days after the date services were rendered or 180 days after the date written notice of the claim was given to the insurance company, whichever is later (see 11 NYCRR 65.12). Within 30 days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 [*2]NYCRR 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]). A claim need not be paid or denied until all demanded verification is provided (see 11 NYCRR 65.15 [g] [1] [i]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). In the event an insurer fails to timely deny a claim or request verification from the hospital, the insurer is precluded from asserting that the claim was untimely or incomplete (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]).

Despite the fact that the proof of claim submitted by Brooklyn Hospital Center, as assignee of Alberto Lopez (hereinafter Brooklyn Hospital), was incomplete, and the proof of claim submitted by Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano (hereinafter Mary Immaculate), was untimely, both of these plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; St. Clare’s Hosp. v Allcity Ins. Co., supra). In opposition, the defendant offered sufficient evidence to raise a triable issue of fact whether Mary Immaculate’s claim was denied as untimely, and whether the defendant timely sought verification of Brooklyn Hospital’s claim (see 11 NYCRR 65.12, 65.15 [d] [1]; St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2000]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., supra). Thus, summary judgment should not have been granted on those causes of action.

The parties’ remaining contentions either are unnecessary to address in light of the determination or are without merit. Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County

(M. Massell, J.), dated April 14, 2003, denying its motion for summary judgment.

Order unanimously modified by granting defendant’s motion to the extent of awarding it partial summary judgment dismissing the complaint as to $1,236.99 of the principal sum sought; as so modified, affirmed without costs.

In this action to recover $1,340.30 in assigned first-party no-fault benefits, for $1,236.99 in health services provided December 5, 2001 and $103.31 in such services provided December 19, 2001, defendant moved for summary judgment dismissing the
complaint on the ground that plaintiff’s claim form was submitted more than 180 days after the services were provided (11 NYCRR 65.12 [e]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454 [1996]). Given defendant’s acknowledgment that the claim form was received on June 11, 2002, i.e., within 180 days of December 19, 2001, the court properly denied the motion as to the December 19, 2001 benefits, having correctly determined that such claim was necessarily timely submitted.

However, the claim for the benefits rendered December 5, 2001 was not received within 180 days, and plaintiff failed to prove that it mailed said claim within the statutory time. Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure [*2]designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]; Amaze Med. Supply Inc. v Allstate Ins. Co., 2 Misc 3d 138 [A], 2004 NY Slip Op 50264 [U]; S & M Supply Inc. v Geico Ins., 2003 NY Slip Op 51192 [U]). Plaintiff’s proof, the affidavit of its “manager,” made no reference to plaintiff’s standard office mailing practices or [*3]
procedures, and the bare averment therein that “[p]laintiff/provider mailed all bills to defendant . . . within the statutory 180 day time period” does not establish the basis of her personal knowledge of the mailing (S & M Supply Inc. v Geico Ins., supra; Amaze Med. Supply Inc. v Colonial Penn Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 50471 [U] [App Term, 2d & 11th Jud Dists]; Jul & Pol Corp. v American Tr. Ins. Co., 2003 NY Slip Op 51153 [U]).
Decision Date: July 01, 2004

Civil Court, Queens County

44207/03

Bernice D. Siegal, J.

The plaintiff, a health care provider, commenced the within action to recover first party benefits under No-Fault for transportation services ( i.e., 29 round trip visits to a medical facility ) provided to plaintiff’s assignor, Oksana Kazinets, from April 16, 2002 through July 18, 2002, for which defendant insurer was billed a total of $900, together with statutory interest and attorney’s fees. Defendant insurer interposed an answer containing affirmative defenses, including the lack of medical necessity for the services rendered and that the assignor did not sustain injuries compensable under No-Fault. Plaintiff brings the instant motion for summary judgment, while defendant cross-moves for summary judgment dismissing the complaint and plaintiff, unbelievably, cross moves for the same relief demanded in the main motion and for additional relief.

For the reasons set forth below, plaintiff’s main motion is denied and its cross motion is considered only as opposition to defendant’s cross and reply to defendant’s opposition, and defendant’s cross motion is denied as premature.

Procedural Posture

In the fairyland of no fault litigation, where the rules of the court and the Civil Practice Law and Rules seem not to apply, plaintiff has submitted, in addition to its original motion for summary judgment, papers denoted as a “reply to opposition ” and ” cross-motion for summary judgment.” Plaintiff’s counsel has, in this and numerous other cases, forced this nonsense upon the court and plaintiff’s adversary despite there being no provision in the CPLR permitting such a “cross-motion” to a cross-motion. Significantly, CPLR § 2215 provides, in pertinent part, that ” a party may serve upon the moving party [ i.e., in this case the court maintains that moving party means plaintiff, and NOT the cross-[*2]moving party – here, the defendant] a notice of cross-motion demanding relief****.” Not incredibly, extensive research finds no previous reported decision on such a procedural ploy. However, the rules of engagement are specifically detailed in the CPLR, and the rules clearly bar the service of supplemental motion papers without leave of court ( CPLR § 2214[c]; see also Rosenman Colin Freund Lewis & Cohen -v- Edelman 165 AD 2nd 533 [ 1st Dept. 1991] ). Plaintiff’s cross to defendant’s cross is nothing more than the impermissible service of supplemental papers.

Moreover, the plaintiff’s ” cross-motion ” even if it were otherwise permissible is, insofar as the notice of same, defective on its face as it fails to adequately specify ” the supporting papers upon which the motion is based,” as mandated by CPLR § 2214(a) (see also Uniform Rules for the New York City Civil Court § 208.10[a]). The rules require that the notice specifically inform the court and the adversary of the contents of the motions, and substantially comply with the form therein, to wit, “Upon the affidavit of —————-, sworn to on —————-, and upon (list supporting papers, if any).” Id. Further, the notice must provide some detail about the underlying matter and nature of the motion, that is “[t]he above entitled action is for (briefly state the nature of action…). This actions (is)(is not) on the trial calender.” Id. Instead, movant merely states:

“That upon the annexed affidavits and supporting affirmation

of ***Esq., dated July 8, 2003, and upon the pleadings and proceedings heretofore had herein, the under signed will move

this Court…for an order directing the entry of Summary Judgment…”

Nowhere is the court advised as to the substance of the underlying action or the actual affidavits annexed. Demanding this disclosure on the notice of motion is not a frivolous desire but rather one which speaks to the practicality of the CPLR and Court rules. An adversary and the court should be able to tell by merely looking at the notice received what is contained within, whether any papers are missing, what is the underlying action and the current relief sought. Without such detail on the notice itself, one may only learn of missing affidavits upon the return date, too late to respond or the court may inadvertently decide the motion on incomplete papers. Any omissions or defects could render the motion a nullity upon the return date.

Moreover, plaintiff’s cross motion demands the same relief as its primary motion, to wit, summary judgment. “Multiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause.” (Public Service Mutual Insurance Co. -v- Windsor Place Corp. 238 AD2d 142, 143 [1st Dept. 1997]). This axiom holds true even if a prior summary judgment were denied on other than substantive grounds. (cf. Lefreniere -v- Capital District Transportation Authority, 105 AD2d 517 [3rd Dept 1984]). The cross motion appears to be an attempt to cure the defects in the primary motion, and as such should not be entertained by the court. Additionally, plaintiff has, in its ” cross-motion,” improperly attempted to raise new issues for the first time (see Klimis -v- Lopez, 290 Ad 2nd 538 [ 2nd Dept. 2002] ). Therefore, in view of the above, the court will deem and consider this latter submission from plaintiff ONLY as a reply to defendant’s opposition and as opposition to defendant’s cross-motion, but NOT as a [*3]separate “cross-motion” to defendant’s cross-motion.

As to the notice of plaintiff’s main motion, the movant has wholly failed to properly apprise the court of the papers annexed, etc. in violation of the court rules. Additionally, plaintiff’s “supplement to main motion” served on October 24, 2003 ( three days before the October 27, 2003 return date) is, as is the “cross motion,” nothing more than the impermissible service of supplemental papers without leave of court. Furthermore, even if the court were to consider this supplement to the main motion, the affirmation is of the attorney who is without the requisite personal knowledge to lay a foundation for the hearsay document (e.g., the purported assignment of benefits) annexed thereto. It is well settled that a proponent of a motion must come forth with facts in admissible form, either by some one with personal knowledge of the facts or by affirmation with admissible documentary proof. (See Zuckerman -v- City of New York, 49 NY2d 557). Accordingly, the assignment of benefits is not properly before the court.

Findings of Fact and Conclusions of Law

The plaintiff’s motion is denied, in the first instance, because plaintiff has failed to establish a prima facie case for entitlement to recover unpaid benefits under No-Fault. It is incumbent for plaintiff to prevail in a summary judgment motion in a No-Fault action to demonstrate that it had submitted complete proof of claim ( see S& M Supply, Inc. -v- GEICO Insurance, 2003 WL 21960343 [ N.Y. Sup. App Term 2003]), with the assignment of benefits being a necessary component of such complete proof of claim ( see A.B. Medical Services, PLLC -v- Progressive Insurance, 2003 WL 21005006 [ N.Y. Sup. App. Term 2003; Vinings Spinal Diagnostic, P.C. -v- Liberty Mutual Insurance Company 186 Misc 2nd 287). Plaintiff’s papers initially submitted on its motion for summary judgment were devoid of any assignment. While the plaintiff attempted to correct such omission by annexing a copy of the assignment to its October 24, 2003 ” supplement to main motion”, such ” supplement ” has been ruled, above, by the court to be a nullity which will not be considered because, among other things, it was impermissibly served without leave of court. Plaintiff’s motion is further denied because it is defective for the reasons stated above, while the cross-motion by defendant is denied as premature, as follows:

The defendant’s opposition and cross-moving papers include, among other things, defendant’s discovery demands dated January 31, 2003; defendant’s motion to preclude submitted on September 3, 2003 and the stipulation by the parties, “so-ordered ” by the court on September 3, 2003, wherein upon defendant’s withdrawal of its motion to preclude, plaintiff agreed to be precluded from “offering evidence at time of trial ” unless it provided complete verified responses to defendant’s discovery demands within 60 days of the date of the stipulation.”

With respect to the stipulation signed by the parties and “so-ordered” by the court, conditionally precluding the plaintiff in this action, as this Court has recently stated, “[I]t has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except for certain limited circumstances not even alleged to be present *** Nishman v. DeMarco, 76 AD2d 360 (2nd Dept. 1980); Siltan v. City of New York, 300 AD2d 298 [2nd Dept. 2002]; In re Evelyn P., 135 AD2d 716 [2nd Dept. [*4]1987].” (Hoss Medical Services, P.C. -v- GEICO, ___Misc 3d___, 2004 NY Slip Op. 24213 (N.Y. Civ Ct). Such a “so-ordered” stipulation will function as a conditional order of preclusion (Siltan -v- City of New York, supra) and, in the event of noncompliance with same, plaintiff may be subject to dismissal if preclusion will prevent plaintiff from making a prima facie case (Jenkinson -v- Naccarato, 286 AD 2nd 420 [ 2nd Dept. 2001]).

However, the plaintiff, by virtue of CPLR § 3214(b) and plaintiff’s notice of motion for summary judgment, served on July 8, 2003 and made returnable on October 27, 2003, has escaped, at least temporarily, the force of the September 3, 2003 conditional preclusion order, as CPLR § 3214 (b) provides that service of a notice of motion for summary judgment “stays disclosure until determination of the motion***.”

Accordingly, in view of the above statutory stay, the cross-motion by defendant for dismissal is denied without prejudice as follows: In view of the court’s now having determined plaintiff’s motion for summary judgment and denying same, the stay of disclosure, pursuant to CPLR § 3214(b), is now vacated and the terms of the ” so-ordered” stipulation are now revived; the only modification being that plaintiff’s time to serve complete verified responses to defendant’s discovery demands is extended to 60 days from service upon plaintiff of a copy of this order with notice of entry. In the event of noncompliance by plaintiff, defendant is given leave to renew its cross-motion for dismissal.

_________________________

DATE: June 30, 2004 BERNICE D. SIEGAL

J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (J. Spinola, J.), entered April 23, 2003, which granted partial summary judgment in favor of plaintiff in the amount of $1,014.88, plus interest and attorney’s fees, deemed an appeal from the judgment of the same court, entered pursuant thereto on May 15, 2003, awarding plaintiff the principal sum of $1,014.88, plus interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]). [*2]

Judgment affirmed without costs.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that the denial of claim was untimely, the insurer having failed to pay or deny the claim within 30 days of its receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Defendant opposed, on the ground that its requests for a comprehensive narrative from the referring physician and its notices of examinations under oath (EUOs) of plaintiff’s assignor were proper requests for verification, which tolled the commencement of the 30-day period within which defendant was obligated to pay or deny the claim. The court below granted plaintiff’s motion, finding that the denial was untimely inasmuch as the verification requests were not in proper form and therefore were ineffective to toll the 30-day period.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Damadian MRI in Elmhurst, P.C. v Liberty Mutual Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant failed to meet its burden, since its papers in opposition to plaintiff’s
motion for summary judgment did not establish that the policy contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In the absence of such a showing, defendant failed to demonstrate that its time to deny the claim was tolled (see S&M Supply Inc. v State Farm Mutual Automobile Ins. Co., No. 2003-1087 N C decided herewith). Assuming, however, the existence of an appropriate endorsement provision, defendant’s opposition papers nonetheless were insufficient as they did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard operating procedures used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish by competent evidence that it timely mailed its verification requests, the commencement of the 30-day period in which it was required to pay or deny the claim was not tolled (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). [*3]

We note that a request for additional verification may be made by letter and need not be on a prescribed form (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]).

McCabe, P.J., and Rudolph, J., concur.

Angiolillo, J., taking no part.
Decision Date: June 30, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (M. Massell, J.), dated May 19, 2003, as denied its motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits for medical services, plaintiff established a prima facie entitlement to summary judgment by the submission of a proper proof of claim (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In opposition, defendant failed to raise any triable issues of fact. Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors failed to appear for scheduled examinations under oath (EUOs) and on the basis of allegedly fraudulent conduct in connection with the accident. It is uncontroverted that plaintiff’s claim forms, submitted subsequent to April 5, 2002, were received by the defendant between April 18, 2002 [*2]and May 6, 2002, and that the defendant did not issue the denial of claim forms until September 12, 2002, well beyond the 30-day statutory period within which it had to pay or deny the benefits (see 11 NYCRR 65-3.8 [c]).

Moreover, defendant’s requests for EUOs did not toll the 30-day statutory time period. The applicable revised insurance regulation, effective on April 5, 2002, includes EUOs in the prescribed “Mandatory Personal Injury Protection Endorsement,” providing that an eligible injured person shall submit to EUOs as may reasonably be required (11 NYCRR 65-1.1[d]). In order to toll the 30-day period in which to pay or deny the claim, a request for EUOs as additional verification to establish the proof of claim, must be done within 15 business days of receipt of the prescribed verification forms (11 NYCRR 65-3.5 [b]). EUOs are also subject to the same 30-day scheduling period required of independent medical examinations (11 NYCRR 65-3.5 [d]), and to virtually identical scheduling and reimbursement conditions imposed on medical examinations (11 NYCRR 65-3.5 [e]). Similarly, where an EUO, as a medical examination, has been requested as verification, it is deemed to have been received by the insurer on the day the examination was performed (11 NYCRR 65-3.8 [a] [1]).

Consistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference (see Matter of Medical Malpractice Ins. Ass. v Superintendent of Ins., 72 NY2d 753 [1988], cert denied 490 US 1080), the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect (see Circular Letter No. 9 [2002]). Therefore, as to the claims submitted on or after April 5, 2002, an insurer’s request for EUOs may toll the 30-day period, depending on the policy endorsement in effect, and the insurer’s compliance with the regulatory time periods and conditions applicable to EUOs.

In the instant case, defendant’s opposition papers failed to establish the terms of the insurance policy in effect. Absent a showing that the subject insurance policy contained an endorsement permitting EUOs, defendant has failed to establish that its time to deny the claim was tolled by virtue of its EUO request. However, even assuming the existence of an appropriate endorsement provision in the policy, defendant has failed to establish entitlement to a tolling of the 30-day period. Defendant’s first requests for EUOs by letters dated June 14, 2002 were not made within the requisite 15-day time period for additional verification (11 NYCRR 65-3.5 [b]), nor did these schedule the examinations within the requisite 30 calendar days from the date of receipt of the prescribed verification forms (11 NYCRR 65-3.5 [d]). The remaining letters forwarded by defendant did not constitute proper verification requests for EUOs and thus did not extend defendant’s time to pay or deny the claim. Accordingly, defendant’s denial of benefits was untimely, and defendant is precluded from asserting the defense of non-compliance with its requests for EUOs (see Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

With regard to the defendant’s denial of benefits based on alleged fraudulent conduct, it is well settled that if a collision is caused in furtherance of an insurance fraud scheme, it would not be a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also State Farm Mut. Auto Ins. Co. v Laguerre, 305 AD2d 490 [2003]), and defendant is not precluded from asserting this defense despite an untimely denial of the claim (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro [*3]Med. Diagnostics v Eagle Ins. Co., 293 AD2d at
752). The defendant’s submissions in support of its allegations of fraud, consisting of an affidavit of an attorney who had no personal knowledge of the facts, and the unsworn letter of its investigator with the Special Investigative Unit, do not constitute evidentiary proof in admissible form (Rue v Stokes, 191 AD2d 245 [1993]), and consequently fail to raise triable issues of fact. Accordingly, plaintiff’s motion for summary judgment should have been granted, and the matter should be remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 30, 2004

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In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated July 29, 2003, as granted that branch of the plaintiffs’ motion which was for summary judgment on the second, third, and fourth causes of action, and (2) from a judgment of the same court, entered August 21, 2003, which, upon the order, is in favor of the plaintiffs St. Luke’s Roosevelt Hospital, New York and Presbyterian Hospital, Mary Immaculate Hospital, and St. John’s Hospital-Catholic Medical Center and against it in the principal sum of $14,043.92.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In support of their motion for summary judgment, the respondents submitted proof, inter alia, with respect to the second, third, and fourth causes of action, that they mailed and the appellant received the hospital facility forms for the related claims demonstrating the amounts of loss sustained, and that the appellant failed to either pay or deny each respective claim within the 30-day statutory period under Insurance Law § 5106 (a). Accordingly, the respondents established their prima facie entitlement to judgment as a matter of law on their claims, including statutory interest and an award of an attorney’s fee (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; St. Luke’s Roosevelt Hosp. v American Tr. Ins. Co., 1 AD3d 498 [2003]).

In opposition, the appellant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavits submitted by the appellant failed to establish that it mailed the requests for verification of the assignments upon which the respondents’ claims were based (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the appellant’s objections to the claims on the basis of lack of proof of the assignments were without merit (see 11 NYCRR 65.15 [d]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]).

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the second, third, and fourth causes of action.

The parties’ remaining contentions either are academic or without merit. Krausman, J.P., Luciano, Cozier and Spolzino, JJ., concur.

Civil Court of the City of New York, Queens County

119001/02

Baker, Barshy & Neuwirth, LLP By: David M. Barshay Esq., Attorneys for plaintiff,1393 Veterans Memorial highway, Ste 21N New York,11788, (631) 979-2906; Short & Billy P.C., By: Ellen Burach-Zion Attorneys for defendant, 217 Broadway Ste 300 New York, N.Y., 10007.

Timothy J. Dufficy, J.

Plaintiff East Way Chiropractic P.C. brought this action against Allstate Insurance Company to recover four separate no-fault payments under a uniform contract of insurance. A non-jury trial was held before this court on May 25, 2004.

FINDINGS OF FACTS

Tammy Figueroa, testified she worked in the billing department for the plaintiff East Way Chiropractic for approximetly five years. She stated that she was responsible for entering data in a computer program for medical bills and was responsible for keeping patient files and billing files in the ordinary course of business.

Ms. Figueroa was familiar with the files of Johnny Concepcion, Charles Taylor, Connie Charles and Jose Martin. Before any assignments were accepted, the office practice was to verify the identity of the patient. Ms. Figureoa stated that no payments were made to the plaintiff East Way except for partial payments made on behalf of Connie Charles. The claim form, to wit “the NF3” and assignments were accepted into evidence except for Jose Martin’s assignment which could not be located.

ISSUES

After plaintiff established a prima facia case, the issue of a timely denial was raised by the plaintiff. The only proof submitted by the defendant was the “NF10” denials which were timely on their face. Defendant’s witness Hector Herrera testified that he was a claim adjuster for defendant Allstate Insurance Company for the past three years and was familiar with the Taylor, Martin and Charles no-fault files. Mr. Herrera received training as to the procedure used by Allstate when a claim is denied. Mr. Herrera testified that the information is entered into the network or main frame computer with a claim number and the injured party’s name. Mr. Herrera stated he was assigned to the instant claims a few days before trial. He testified through the in house training he learned how data is entered into the computer. Denial forms are mailed from a central office in Texas. Mr. Herrera testified through his training, he learned that the forms are mailed out the same day they are entered into the computer or at latest the next day, unless it was a Friday or a holiday weekend. On cross examination, Mr. Herrera admitted that he testified at a prior proceeding that he thought the mailing were done by a third party. However, Mr. Herrera was later permitted to correct his testimony at that proceeding. The court finds that Mr. Herrera [*2]lacks personal knowledge of the of the mailing procedure used in the Texas facility and in fact never visited or worked in the Texas office. No other evidence of a timely mailing was offered by defendant.

As pointed out by the plaintiff in their trial memorandum of law, the law is well settled in that for an insurer’s denial of claim form to be deemed timely pursuant to 11 NYCRR 65.15(g) (3) and Insurance Law§5106(a), the insurer must not only prove that it generated the denial document within thirty (30) days of receipt of the applicants claim, but that it also mailed the denial to the applicant within the same time period. See, Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 A.D.2d 374 (2nd Dept. 2001); A. B. Medical Services, PLC v. GEICO Ins., 2 Misc. 3rd 26 (APP. Term 2nd and 11th J.D. Dist. 2003). The court holds that personal knowledge of the actual mailing or at least personal knowledge of the actual procedure is required. See, S& M Supply Inc. V. GEICO Ins., 2003 N. Y. Slip Op. 51192 (U) (App. Term. 2nd and 11th J.D. Dist. 2003). In the case at bar, the witness did not have personal knowledge of the Texas mailing procedure and in fact never visited or worked at the Texas office. Therefore, the defendant failed to establish that the denials were timely mailed to the applicant within thirty (30) days.

Accordingly, judgment is awarded to the plaintiff for the amount sought in the complaint for services provided to Johnny Concepcion ($122.14), Charles Taylor ($1615.58), Jose Martin ($1916.46). As for the claim for services provided to Connie Charles partial judgment in the amount of $470.96. The plaintiff is directed to submit a judgment to the court together with statutory interest and attorney fees.

Dated: June 23, 2004 _________________________

TIMOTHY J. DUFFICY, J.C.C.