SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 3, 2007, deemed from a judgment of the same court entered October 29, 2007 (see CPLR 5520 [c]). The judgment, entered pursuant to the May 3, 2007 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover first-party no-fault benefits for medical supplies furnished to its assignor, defendant moved for an order, pursuant to CPLR 3211 (a) (5) and (7), dismissing the complaint because a stipulation of discontinuance “with prejudice” had been executed by the parties in a prior action, brought under a different index number, involving the same assignor and the identical no-fault claims and claim denial forms. Plaintiff opposed, contending that it had never had an opportunity to fully litigate the merits of the discontinued action. The court below granted the motion to dismiss, and this appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

A stipulation of discontinuance which specifies that it is “with prejudice” raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440 [2006]; Singleton Mgt. v Compere, 243 AD2d 213, 216 [1998]). Plaintiff herein has not denied that the cause of action in the discontinued case is identical to the cause of [*2]action in the instant case. Nor did the stipulation executed in the discontinued action contain any explicit exception permitting the instant action to continue (see Biggs v O’Neill, 41 AD3d 1067 [2007]). There is nothing in the record before us to reflect that the parties, at the time of execution of the stipulation, intended that the stipulation not have res judicata effect.

We note that plaintiff has raised arguments on the appeal based upon factual allegations which were not presented to the court below. This court will not consider
matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). For the foregoing reasons, defendant’s motion to dismiss the instant complaint was properly granted and, accordingly, the judgment is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), dated August 1, 2007. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking to vacate a judgment entered in favor plaintiffs and the underlying order which, inter alia, granted plaintiffs’ prior motion for summary judgment and, upon such vacatur, to dismiss the complaint.

Order, insofar as appealed from, affirmed without costs.

In or about April 2004, plaintiffs commenced this action to recover assigned first-party no-fault benefits. Plaintiffs subsequently moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In July 2005, the court below granted plaintiffs’ motion and denied defendant’s cross motion. In September 2005, a judgment was entered in favor of plaintiffs. Prior to the enforcement of the judgment, plaintiffs’ attorney was suspended from practicing law in the State of New York (see Matter of Weinberg, 25 AD3d 157 [2005]). In January 2006, defendant moved for a stay of any attempt to [*2]enforce the judgment, pending the substitution of new counsel. Plaintiffs opposed the motion. In August 2006, the court below granted defendant’s motion and stayed the action until each plaintiff served and filed a proper consent to change attorney. In February 2007, plaintiffs moved to lift the stay. Defendant opposed the motion and cross-moved to vacate the award of summary judgment and dismiss the complaint. By order dated August 1, 2007, the court below granted plaintiffs’ motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

In its cross motion, defendant argued that the July 2005 order granting summary judgment to plaintiffs and the September 2005 judgment entered thereon, should be vacated because there was never consent to Mr. Weinberg’s representation given by plaintiffs from the inception of the instant action. In the alternative, defendant sought a tolling of the accrual of interest. On appeal, defendant contends that the judgment and the order awarding judgment to plaintiffs should be vacated because defendant has a meritorious defense and reasonable excuse or, in the alternative, because plaintiffs failed to establish their prima facie entitlement to summary judgment. Indeed, defendant cites CPLR 5015 in support of its position, which refers to excusable defaults. However, the case at bar does not involve a default judgment, since the September 2005 judgment was entered after defendant submitted opposition papers to plaintiffs’ motion for summary judgment, and cross-moved for summary judgment. We note that defendant has presented no other grounds under CPLR 5015 to warrant the vacatur of the judgment and order.

Moreover, defendant’s contention regarding plaintiffs’ prima facie entitlement to summary judgment is not properly before this court inasmuch as defendant is appealing from the August 2007 order entered after the September 2005 judgment. Since the order merely granted plaintiffs’ motion to lift the stay and denied defendant’s cross motion seeking to either vacate the judgment based upon plaintiffs’ alleged failure to demonstrate that they retained plaintiffs’ counsel or to toll the time during which interest accrued on the judgment, the merits of the summary judgment motions decided by the July 2005 order, upon which the judgment was entered, are not subject to review as part of this appeal. Defendant’s remaining contentions have no merit. Furthermore, we note that Mr. Weinberg’s suspension from the practice of law occurred after judgment was entered herein and he has since been reinstated to the bar, which action prompted plaintiffs’ motion to lift the stay. Accordingly, the order, insofar as appealed from, is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered September 28, 2007. The order granted a petition to vacate a master arbitrator’s award.

Order reversed, without costs, petition to vacate the master arbitrator’s award denied, and matter remanded to the court below for the entry of a judgment confirming the master arbitrator’s award.

Valentin Avanessov, Physician, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The court granted the petition and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an “Affirmation in Support.” The only document submitted in support of the petition was one which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he “states as follows,” which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).

In view of the foregoing, the petition to vacate the master arbitrator’s award should have [*2]been denied. Furthermore, upon denying the petition, the court is required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). While we do not reach the remaining contentions, we note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008

Supreme Court, Nassau County

12410/2008

COUNSEL FOR PETITIONER

Ruffo, Tabora, Mainello & McKay, P.C.

3000 Marcus Avenue – 1W6

Lake Success, New York 11042

COUNSEL FOR RESPONDENT

Rubin, Fiorella & Friedman, LLP

292 Madison Avenue, 11th Floor

New York, New York 10017

Leonard B. Austin, J.

Petitioner seeks a judgment pursuant to CPLR 7510 confirming the arbitration award of Arbitration Forums, Inc., dated December 30, 2007.

Respondent, Republic Western Insurance Co., moves for an order pursuant to CPLR 304, 403(b) [*2]and 3211(a)(8) dismissing the petition for want of personal jurisdiction.

BACKGROUND

The insured of Petitioner Eagle Insurance Company (“Eagle”), was involved in a motor vehicle accident with a vehicle insured by Respondent, Republic Western Insurance Co. (“Republic Western”), on January 30, 2001. Republic Western’s insured allegedly rear-ended Eagle’s insured, whose vehicle had three passengers.

On or about April 1, 2003, Eagle served Republic Western with a Notice to Arbitrate the four individuals’ claims with Arbitration Forums, Inc. (“AFI”) pursuant to Insurance Law § 5105. After a lengthy investigation, on October 24, 2007, Republic Western denied coverage for Eagle’s claim on the grounds that the accident was staged.

On October 25, 2007, Republic Western submitted its contention to AFI that the loss was staged and was accordingly not covered. Republic Western argued that AFI lacked jurisdiction since coverage was contested and that Eagle’s claim must be dismissed. Republic Western explained that, through its investigation, it had determined that the loss involved individuals who were part of a criminal ring that staged accidents with U-Haul and other vehicles for the purpose of defrauding insurance companies. It maintained that Tara Pizzingrillo, the lessee and driver of the U-Haul vehicle in the

underlying claim, was arrested in connection with staging accidents and that she was indicted for being part of a scheme to defraud numerous insurance carriers by submitting fraudulent claims and intentionally colliding into automobiles.

A no-fault hearing was held on December 18, 2007. Republic Western asserted its objection to jurisdiction again at the hearing. By decision, dated December 30, 2007, the Arbitrator rejected Republic Western’s challenge to jurisdiction and found Republic Western 100% liable for Eagle’s no-fault payments to the injured parties. The Arbitrator denied Republic Western’s affirmative defense of no coverage because “indictments list other accidents, not his loss;” “U-Haul driver was indicted for fraud;” and, Eagle’s insured was “an innocent party.” By letter, dated January 22, 2008, Republic Western’s counsel requested that AFI reconsider whether it had jurisdiction over the matter under 11 NYCRR 65-4.11(a)(6).

On or about December 30, 2007, Republic Western filed a Petition in Supreme Court, New York County seeking to vacate the arbitration award. However, that action was discontinued by stipulation without prejudice on account of a stay of actions against Eagle issued by the Superior Court of New Jersey on January 29, 2007. That stay was given comity by this Court by order dated June 15, 2007. (In the Matter of Eagle Insurance Company in Rehabilitation, Newark Insurance Company in Rehabilitation, GSA Insurance Company in Rehabilitation, and NCIC Insurance Company in

Rehabilitation [Order dated June 15, 2007, Index No. 3202/07 (Supreme Court Nassau County)]).

Eagle commenced this proceeding to confirm the arbitrator’s award on July 7, 2008.

Republic Western maintains that personal jurisdiction has not been obtained; that the award is invalid because it is not signed (CPLR 7507); and that the Arbitrator exceeded his authority in determining that this was a covered event (see, 11 NYCRR 65-4.11[a][6]). [*3]

DISCUSSION

Review of an arbitration award is accomplished by way of a special proceeding. CPLR 7502(a); Scott v. Allstate Ins. Co., 45 AD3d 690 (2nd Dept. 2007). “A special proceeding is commenced by the filing of a petition (CPLR 304).” Star Boxing Inc. v. Daimler Chrysler Motors Corp., 17 AD3d 372 (2nd Dept. 2005). See also, Scott v. Allstate Ins. Co., supra; and Queens Community Medical Centers v. Eveready Ins. Co., 7 Misc 3d 1010(A) (Civ. Ct. Kings Co. 2005). “Thereafter, the petitioner must serve the respondent with a notice of petition, the petition and supporting affidavits (CPLR 403[b]).” Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra. See also, Scott v Allstate Ins. Co., supra; Queens Community Medical Centers v. Eveready Ins. Co., supra. “Pursuant to CPLR 403(c), a notice of petition shall be served in the same

manner as a summons in an action.” Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra. See also, Scott v. Allstate Ins. Co., supra; Queens Community Medical Center v. Eveready Ins. Co., supra. Neither service on a party’s attorney nor service by regular mail alone is sufficient. CPLR 308, et seq. The petition must be served in accordance with CPLR 308. Application of County Wide Ins. Co., 114 AD2d 754 (1st Dept. 1985). See also, Hehl V. Government Employees Ins. Co., 203 AD2d 572 (2nd Dept. 1994).

Republic Western did not waive its jurisdictional objection by procuring an adjournment of the return date of the Petition. Parrotta v. Wolgin, 245 AD2d 872 (3rd Dept. 1997), citing McLaughlin, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C320:2 at 492; CPLR 320(b); Becker v. Lesnick, 96 Misc 2d 819, 821-822 (Sup. Ct. NY Co. 1978). See also, Pendergast v. St. Mary’s Hospital, 156 AD2d 436 (2nd Dept.1985). The petition in this proceeding was served on Republic Western and its attorney by regular mail. Since Eagle Insurance Co. failed to serve the petition properly, this Court lacks jurisdiction and this proceeding must be dismissed. Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra; and Queens Community Medical Center v. Eveready Ins. Co., supra.

In view of the foregoing, the parties’ remaining contentions need not be reached.

Accordingly, it is,

ORDERED, that Respondent Republic Western’s motion to dismiss the Petition pursuant to CPLR 3211(a)(8) is granted and the Petition is hereby dismissed.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

October 24, 2008Hon. LEONARD B. AUSTIN, J.S.C.

X X X

Civil Court of the City of New York, Richmond County

14725/07

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Katherine A. Levine, J.

This case invokes the inverted trajectory that must be followed when an insurer raises the defense that a medical services provider has failed to timely submit its proof of claim.

Defendant Clarendon National Ins. Co., (“defendant” or “Clarendon”) moves for summary judgment against Plaintiff, Joseph Rockman LMT a/a/o Delilah Serrano (“plaintiff” or “Rockman”) on the grounds that plaintiff failed to timely submit written proof of claim within 180 days after the date medical services were rendered pursuant to 11 N.Y.C.R.R. 65.12 (“old

rules”) ^[FN1] or within 45 days after the services were rendered pursuant to 11 N.Y.C.R.R. 65-1.1 (“new rules”).^[FN2]Defendant alleges that the bills, dated 4/17/07, are for services rendered in [*2]October – November 2002 ; the bills are thus dated some four and a half years after the services were rendered. Specifically, defendant asserts that the first time it learned about this claim was when plaintiff served its law office with a summons and complaint dated August 16, 2007, which attached a chart referring to such bill dated 4/17/07, although no such bill was attached.

Defendant further avers that its law office received the actual bill, dated 4/17/07, when it received discovery in a related case involving the same medical provider on or about,

October 10, 2007. Defendant thereupon mailed its denial of the bill on, November 7, 2007 within 30 days of its receipt of the bill, thus preserving the defense of late submission.

Plaintiff offers no explanation as to why it has failed to present a health insurance claim form dated within 180 days of the dates of services in October – November 2002. Nor does it address how it came to pass that defendant was made aware of the claim’s existence through discovery in another matter. Rather, plaintiff cross-moves for summary judgment alleging that plaintiff made its prima facie case by setting forth that the bills were mailed and not paid or denied within thirty days. In support of its motion, plaintiff submits a generic affidavit from Dr. Joseph Rockman, dated December 10, 2007, which details in great detail the office’s practices and procedures for mailing out claims for service and then states that in accordance with that procedure, the “aforementioned bills, which are the subject of this lawsuit, were mailed to the defendant.” Accompanying this affidavit were Dr. Rockman’s notes of his treatment of the assignor during 2002-03 and the Health Insurance Claim form dated, 4/17/07, for services purportedly rendered in November 2002. Plaintiff fails to explain why the only health insurance

claim it can produce is dated April 17, 2007 and does not address how this particular claim form was formulated or mailed.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented” Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). If the opposing party fails to submit evidentiary facts to controvert the fact in the movant’s papers, then summary judgment must be grated since there are not triable issues of fact. Inwood, supra . See, Kuehne & Nagel, Inc. v. F.W. Baiden, 36 [*3]NY2d 539 (1975).

Pursuant to Insurance Law §5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. The old regulations required that written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later] than 180 days after the date services are rendered or 180 days after the date written notice was given to the [insurer].” (11 N.Y.C.R.R. 65.12) See, Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 N.Y.C.R.R. 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 N.Y.C.R.R. 65.15 [d] [1]). A claim need not be paid or denied until all demanded verification is provided (see 11 N.Y.C.R.R. 65.15 [g] [1] [I] Id at 355 ; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553,(2d Dept. 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 . Montefiore Medical Center,, supra at 355. See, Presbyterian Hosp. in City of NY 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).

Although a health care provider is required to submit its proof of claim within 180 days after the services were rendered, ” an insurer is precluded from asserting the defense of a provider’s untimely submission of proof of claim if it does not issue a timely denial of claim.” Mid Atlantic Medical P.C. , v. Travelers Indemnity, Co., 12 Misc 3d 147A, 824 NYS2d 769 (App. Term, 1st Dept. 2006). See, New York & Presbyt. Hops. V. Eagle Ins. Co., 17 AD3d 646 (2d Dept. 2005); Montefiore Medical Ctr., supra

It is clear that defendant Clarendon may assert this defense since it timely denied the claim. Defendant submitted two affidavits from its claims representative averring that Clarendon never received any claim forms dated 2002 or 2003 for services rendered between, November 1- 15, 2002, and hence could not have denied such claim. Rather, defendant first became aware of the bills dated April 17, 2007 for services rendered back in 2002 when its attorneys were served with a summons and complaint, dated July 2007, in this matter. Annexed to the complaint was a chart referring to the assignor, listing the amount owed and the dates of service. The actual bills for these services were not

received by Clarendon until October 10, 2007, when the they were included as part of discovery in a related case sent to defendant’s attorneys. The affiant claims examiner then issued a denial on November 7, 2007, within 30 days of the bill’s receipt, and the denial was mailed on that same day in accordance with the standard office mailing procedures. .

Having properly asserted this defense, defendant is entitled to summary judgment unless [*4]plaintiff can raise a factual issue as to whether the aforementioned bills were in fact mailed on, December 14, 2002, as asserted by plaintiff. “Service of both the no-fault claim and assignment forms is established by an actual affidavit of mailing or by proof of an office practice and procedure followed . . . in the regular course of . . . business’… geared so as to ensure the likelihood that [the item] is always properly addressed and mailed Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996, 999 (Civil Ct., Queens Co.. 2007) citing Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830(1978). . A post office receipt may supply additional “direct proof of actual mailing” (LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728, (3d Dept 2006) provided the evidence relates the receipt to an identified mailing (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 (2d Dept 2006).Such proof may also include a medical services bill with a certified mail return receipt, (Hospital for Joint Diseases and Presbyterian Hosp. v. Travelers Property Casualty Ins. Co., 34 AD3d 352 (2d Dept. 2006); NY. & Presbyterian Hosp. V. Allstate Ins. Co., 30 AD3d 492 (2d Dept. 2006); and or a signed return receipt card which referenced the patient and forms and an affidavit of a third party biller (NY. & Presbyterian Hosp. v. Travelers Prop. Casualty Ins. Co., 37 A.D 3d 683 ( 2d Dept. 2007).

In the instant matter, plaintiff has failed to present evidentiary facts to controvert defendant’s denial based upon plaintiff’s untimely submission of the bills. No presumption of mailing was created because the affidavit of Dr. Rockman did not state that he actually mailed the particular claims at issue, and Dr. Rockman’s recital of his office practices did not establish, by admissible proof, that this procedure was in fact followed on, December 12, 2002. See, Multiquest PLLC v. Allstate Ins. Co., 10 Misc 3d 1069(A), .814 NYS2d 563 (Civil Ct., Queens Co. 2004)( affidavit of plaintiff s owner, in which he does not attest to personal knowledge of this claim but states that he is “fully familiar with all the policies, practices and procedures” of plaintiff, is insufficient to lay a foundation for the exhibits attached to the moving papers. “Significantly, plaintiff fails to establish the mailing of its claim to defendant, a necessary element of its prima facie case.”) (See Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 774 NYS2d 564 (2d Dept 2004); Residential Holding Corp , supra . Fatally missing from plaintiff’s papers is a copy of the medical claim dated in 2002 that was purportedly mailed on December 13, 2002.

Specifically, Dr. Rockman averred that it is his office’s customary practice that after the envelope containing the bill is delivered to the U.S post office, a photocopy of the bill and supporting documents are then placed in the appropriate patient file and a notation is made on the file confirming the date and amount of the bill and the date the bill was mailed. He then alleged that the bills which are subject of this lawsuit were mailed on 12/13/02. However, as set forth above, plaintiff has failed to produce the bill that was purportedly mailed in December 2002 or even the notation that was made on the file concerning the mailing, and none of the documents that plaintiff did produce in support of its motion contain any reference to a mailing in December 2002. In fact, the only bill that plaintiff did produce for the dates of

service in question is dated April 17, 2007, and plaintiff has offered no evidence concerning the mailing of the 2007 bill. As such, plaintiff has failed to produce any evidence that could be introduced at trial so as to defeat defendant’s motion for summary judgment.

Given the aforementioned reasoning, plaintiff’s cross-motion for summary judgment is denied. Along this line, it should be noted that plaintiff has failed to establish its prima facie right to judgment as it has failed to demonstrate its timely and proper submission of the claims in question See, Presbyterian Hospital, supra , 90 NY2d 274 (1997), Elmont Open MRI & Diagnostic Radiology v. Geico, 2008 NY Slip Op. 50113U, 18 Misc 3d 1117A (Dist. Ct., Nassau Co. 2008). As set forth above, plaintiff has failed to provide admissible proof of mailing of the purported bill dated December 2002. Furthermore, plaintiff has offered no evidence whatsoever to lay a foundation for the admission of the bill dated April 17, 2007. See, e.g. Complete Orthopedic Supplies v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007). concerning the mailing of the bill dated April 17, 2007 that it has been able to produce.

In sum, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion is denied.

The foregoing constitutes the Decision and Order of the Court .

Dated October 17, 2008______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________

A P P E A R A N C E S

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Footnotes

Footnote 1:Defendant originally contended that plaintiff failed to submit the claims with 45 days of the date of service but later amended its motion to claim Claim that plaintiff violated the 180 day rule provision under the old regulations.

Footnote 2: Insurance Department Regulation 11 N.Y.C.R.R. 65-3.3 and 65-2.4 shortened the time period filing no fault claims from 180 days to 45 days from the rendering of medical services. Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002 are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days to 45 days (11 N.Y.C.R.R.] § 65.12 [e], now Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]. See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm

Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003 S & M Supply v State Farm Mut. Auto. Ins. Co. supra .

—[*1] Amos Weinberg, Great Neck, N.Y., for appellants.

John P. Humphreys, Melville, N.Y. (David R. Holland and Dominic P. Zafonte of counsel), for respondents.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated June 4, 2007, which affirmed an order of the Civil Court of the City of New York, Kings County (Nadelson, J.), entered April 5, 2005, denying their motion for partial summary judgment.

Ordered that the order dated June 4, 2007 is affirmed, with costs.

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule (see CPLR 4518 [a]; Matter of Leon RR., 48 NY2d 117, 122-123 [1979]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-180 [2007]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2004]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456-457 [1998]). Thus, the plaintiffs’ motion was properly denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

To the extent that the plaintiffs raise any issue with respect to the defendant’s cross motion for summary judgment dismissing the complaint, that issue is not properly before us, as the cross [*2]motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.