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 District Court, Nassau County (H. Miller, J.), dated May 9, 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 for the calculation of statutory interest and an assessment of attorney’s fees.

In this action seeking assigned first-party no-fault benefits, plaintiff health service provider established a prima facie entitlement to summary judgment by the submission of proper proof of the claim and the amount of the loss (see Insurance Law § 5106 [a]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Defendant has failed to raise any triable
issues of fact. Defendant acknowledges receiving plaintiff’s proof of claim on August 15, 2001, and did not send its denial of the claim until November 17, 2001, well beyond the 30-day period within which it was required to pay or deny the claim (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not serve to toll the 30-day period, since the applicable insurance regulation did not contain provisions requiring a claimant to submit to examinations under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Servs. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]). Accordingly, plaintiff’s motion for summary judgment should have been granted (see King’s Med. Supply, Inc. v Progressive Ins., Co., 2004 NY Slip 50311 [U] [App [*2]Term, 2nd & 11th Jud Dists]), and the matter is 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: May 28, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 26, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Teresa M. Spina, Woodbury (Steven A. Giampaolo of counsel), for respondent.

{**4 Misc 3d at 96} OPINION OF THE COURT

Memorandum.

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.

Plaintiff commenced this action to recover $1,606.87 in first-party no-fault benefits, as well as statutory interest and attorney’s fees, for medical services rendered to its assignor, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered May 14, 2003.

Contrary to the determination of the court below, we find that the affidavit of plaintiff’s billing manager, though imprecisely worded, sufficed to establish its cause of action prima facie (CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists 2003]). Moreover, the billing manager was not required to have personal medical knowledge to establish the medical necessity of the claim inasmuch as a prima facie showing of entitlement to summary judgment is established in the first instance by the submission of a properly completed claim form (see Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., supra; Amaze [*2]Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Consequently, the burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant’s denial was made within 30 days of its receipt of the claim (see Insurance Law § 5106 [a]). However, inasmuch as the peer review, upon which the denial is based, concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination, we find that the denial did not “fully and explicitly” set forth the reasons therefor (section 31 of the NF-10 form), did not inform plaintiff of defendant’s position regarding the disputed matter, and, thus,{**4 Misc 3d at 97} did not set forth a factual basis and medical rationale sufficient to establish the absence of medical necessity (see Amaze Med. Supply v Eagle Ins. Co., supra). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply v Eagle Ins. Co., supra).

In view of the foregoing, plaintiff is granted summary judgment in the amount of $1,606.87, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated pursuant thereto.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (D. Silber, J.),

entered May 14, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion was denied by order of the court below.

In support of their motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are two distinct plaintiffs in this matter which have different business addresses. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [*2][App Term, 9th & 10th Jud Dists]).

Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to summary judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004

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 (P. Sweeney, J.), entered January 13, 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 a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In its moving papers, plaintiff argued that because
the defendant failed to timely deny its claim within the statutory 30-day period, it
was entitled to summary judgment as a matter of law. In order to establish a
prima facie entitlement to summary judgment, plaintiff was required to show that it
submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v
Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The presumption that an addressee received an item by mail may be created by either
proof of actual mailing or proof of a standard office practice or procedure designed
to ensure that items are properly addressed and mailed (see Residential Holding
Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Tracy v William Penn Life Ins. [*2]
Co. of N.Y., 234 AD2d 745 [1996]; Pardo v Central Coop. Ins. Co., 223 AD2d 832 [1996]). Plaintiff attached to its moving papers a signed post office ledger with defendant’s name which was date-stamped September 18, 2001. In addition, in his affidavit in support of plaintiff’s motion, Mr. Bronsteyn (plaintiff’s president) stated
that plaintiff mailed the bills to defendant on September 18, 2001. Thus, plaintiff
made out a prima facie case of its entitlement to summary judgment thereby
shifting the burden to the defendant to come forward with a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In support of defendant’s motion for summary judgment and in
opposition to plaintiff’s motion, defendant’s attorney merely argued that defendant’s denial letter was timely since it was dated November 7, 2001 and stated therein
that defendant received plaintiff’s claim on October 18, 2001. Since defendant’s attorney lacked personal knowledge of the underlying facts, and defendant’s
business records and standard office practices regarding mailings, his affirmation
was of no probative value (see Barton v County of Monroe, 92 AD2d 746 [1983]). Inasmuch as defendant failed to establish that a triable issue of fact exists, the
lower court should have granted plaintiff’s motion for summary judgment. The
matter is remanded for the calculation of statutory interest and attorney’s fees
pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 20, 2004

[*1]

District Court of Suffolk County, Third District, May 19, 2004

APPEARANCES OF COUNSEL

Carman, Callahan & Ingham, LLP, Farmingdale (Paul A. Barrett of counsel), for defendant.

{**4 Misc 3d at 229} OPINION OF THE COURT

C. Stephen Hackeling, J.

This decision arises out of the commercial claims complaint of plaintiff Dependable Ambulette, Inc., dated March 24, 2003, which was tried on May 6, 2004. The defendant, Progressive Insurance Co., has raised oral, jurisdictional and merit defenses. Written answers are not required pursuant to UDCA 1804-A which dispenses with most rules of “practice, procedure, pleading or evidence” and which requires the claim to be resolved in a manner as to provide “substantial justice” according to the rules of “substantive law.”

The Facts

The undisputed relevant facts are the plaintiff rendered ambulette services on several dozen occasions to Boris Cherkalin between September 30, 2002 and January 4, 2003 and took an assignment of his claim as against the patient’s motor vehicle no-fault insurer Progressive Ins. Co. of New York. Plaintiff billed Progressive $2,600 for said services and received a timely written denial of the claims.

Jurisdictional Defense

The defendant first argues that plaintiff lacks jurisdiction to bring this proceeding pursuant to the provisions of UDCA 1809, which provides: “[n]o corporation . . . and no assignees of any claim shall institute an action or proceeding under this Article . . . .” The defendant submitted the unreported decision of the New York City Court, Judge Pineda-Kirwan, dated April 20, 2004, in support of this position. This decision references an analogous sister statute of the New York City Civil Court Act, section 1809.

While persuasive in a small claims proceeding, defendant’s precedent is inapplicable to a [*2]commercial claim action brought pursuant to article 18-A of the Uniform District Court Act. The jurisdictional limitations and prohibition against assignees is limited to article 18 claims. The subject action is brought under article 18-A (commercial claims), which is a separate and distinct article. The commercial claims article does not bar corporate assignees from instituting an action. It only limits these {**4 Misc 3d at 230}plaintiffs to five actions per month. (See, UDCA 1803-A.) Accordingly, the court finds that plaintiff has jurisdiction to maintain this action.

Are Assigned Ambulette Services Eligible for No-Fault Reimbursement

The dispositive issue presented in this action is whether assigned ambulette services are eligible for reimbursement under the No-Fault Law, Insurance Law § 5102. The facts are not in dispute as the defendant’s only ground for denying payment was stated to be:

“Regulation No. 68 (11 NYCRR 65), [65-3.11] Direct Payments (a),

” ‘An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant or, when appropriate, to the applicant’s parent or legal guardian or to any person legally responsible for the necessities, or upon assignment by the applicant or any of the aforemention persons, shall pay benefits directly to providers of health care services as covered under section 5102 (a)(1) of the Insurance Law, or to the applicant’s employer for loss of earnings from work as authorized under section 5102 (a) (2) of The Insurance Law. Death Benefits shall be paid to the estate of the eligible injured person.’ Since you are not a provider of health care services, you cannot be paid directly by an insurer. Direct payment of the claimed benefits to you is therefore denied. You must seek payment from the applicant and any claims for reimbursement filed by the applicant, will then be considered.”

For services to be reimbursable under New York’s No-Fault Law they must be medically necessary health services as enumerated under Insurance Law § 5102 and subject to the requirements of No-Fault Regulation 68 (11 NYCRR 65-4.15).

Insurance Law § 5102 determines whether a particular service or product purchased is a covered expense eligible for reimbursement under the No-Fault Law. The statute reads as follows:

“All necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental ambulance,{**4 Misc 3d at 231} x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical [*3]remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services . . . For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.” (Insurance Law § 5102 [a] [1].)

The term “any other professional health services” covered under section 5102 (a) (1) (iv) is defined under Regulation 68 (11 NYCRR 65-4.15 [o] [1] [vi]) as follows:

“The term any other professional health services, as used in section 5102 (a) (1) (iv) of the Insurance Law, this Part and approved endorsements, shall be limited to those services that are required or would be required to be licensed by the State of New York if performed within the State of New York. Such professional health services should be necessary for the treatment of the injuries sustained and within the lawful scope of the licensee’s practice. Charges for the services shall be covered pursuant to schedules promulgated under section 5108 of the Insurance Law and Part 68 of this Title (Regulation 83). The services need not be initiated through referral by a treating or practicing physician.”

For a service rendered to constitute a reimbursable health service, it must fall under one of the enumerated categories included as expenses insured pursuant to section 5102 (a) (1) (i), (ii) and (iii), or it must fall under the category of “(iv) any other professional health services” under Regulation 68. To be covered under this category, the service rendered must be a health service licensed under New York law and, when performed, such health service must fall within the lawful scope of the provider’s license. (See Insurance Law § 5102 [a] [1] [iv]; 11 NYCRR 65-4.15 [o] [1] [vi].) Ambulette services are authorized by the New York State Department of Transportation to “[t]ransit disabled persons.” (2003 Ops NY Dept Transp No. 9 [Jan. 16, 2003].) These services do not constitute covered expenses incurred pursuant to section 5102 (a) (1) (i), (ii) or (iii) or “any other professional health services” as defined in section 5102{**4 Misc 3d at 232} (a) (1) (iv) and Regulation 68. The only possible reimbursement for ambulette services would be for “other reasonable and necessary expenses,” up to $25 per day. (See Insurance Law § 5102 [a] [3].)

The defendant argues it is not even liable for the reduced $25 a day exception. It questions whether an ambulette company may receive payment directly from a no-fault insurer pursuant to an assignment of benefits. Prior to April 5, 2002, Regulation 68 permitted assignment to any “provider of services” making no distinction between providers based upon particular categories of reimbursable expenses. The revised Regulation 68 allows direct payments to be made only to “providers of health care services.” (See 11 NYCRR 65-3.11 [a].) Reasonable and necessary expenses are now nonreimbursable. There is no dispute that this claim arose in December of 2002, and the defendant is not a “provider of health care services.” Rather, plaintiff is a section 5102 (a) (1) (iv) other “health service,” which is not covered.

Accordingly, the plaintiff’s complaint is dismissed.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered February 25, 2003, denying their motion for partial summary judgment in the sum of $11,420.05.

Order unanimously affirmed without costs.

In or about June 2002, plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney’s fees, for health services provided
to their assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved
for partial summary judgment in the amount of $11,420.05, which was comprised of $8,144.25 worth of claims (consisting of 12 bills), $3,210.80 worth of claims (consisting
of 9 bills), and a $65 claim. Defendant opposed the motion and by order entered
February 25, 2003, the court below denied said motion.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the billing manager for “plaintiff.” The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, [*2]
Safir’s affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, March 18, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th
Jud Dists]).
Decision Date: May 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 4, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for appellant. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

{**4 Misc 3d at 26} OPINION OF THE COURT

Memorandum.

Order modified by providing that the petition is granted insofar as it sought to vacate the arbitrator’s award and matter remanded for arbitration before a different arbitrator; as so modified, affirmed with $10 costs.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner Empire Insurance Company filed a demand for arbitration on June 25, 1998, seeking reimbursement of no-fault payments it made to its subrogor from October 1995 through November 1996. Arbitration Forums, Inc. denied the claim on the ground that the statute of limitations had expired. Petitioner commenced a special proceeding to vacate said award, and by order entered in April 1999, the court below granted the petition and remanded the matter for a new hearing. Following the hearing, Arbitration Forums, Inc. again denied the claim on the aforementioned statute of limitations ground. Petitioner then commenced a second special proceeding to vacate the arbitrator’s award, and by order entered in May 2000, the court below [*2]granted the petition and remanded the matter for a new hearing. After said hearing, Arbitration Forums, Inc. again denied the claim, by award dated July 9, 2002, on the aforementioned statute of limitations ground. Petitioner then commenced the instant third special proceeding to vacate the arbitrator’s award. By order entered in November 2002, the court denied the petition finding that it was not based on one of the limited grounds upon which such an award may be vacated pursuant to CPLR 7511 and that the arbitrator applied the correct statute of limitations (citing Nationwide Mut. Ins. Co. v Schwartz, 172 Misc 2d 503 [1997]). The court thereupon, sua sponte, vacated its May 2000 order.

In Matter of Motor Veh. Acc. Indem. Corp. {**4 Misc 3d at 27}v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996]), the Court of Appeals determined that stricter scrutiny is required, and the arbitrary and capricious standard is applicable, if arbitration is compulsory pursuant to a statutory mandate (id. at 223). To the extent that the Appellate Division, Fourth Department case, Matter of Allstate Ins. Co. (Clarendon Natl. Ins. Co.) (259 AD2d 971 [1999]), is inconsistent with the Court of Appeals holding in Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., it is not controlling. Furthermore, the court’s reliance on Nationwide is misplaced inasmuch as the court therein specifically stated that its decision was distinguishable from Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. which, like the case at bar, involved statutorily created obligations and rights, whereas Nationwide was in the nature of a common-law subrogation. Consequently, we find that the arbitrator’s award dismissing the claim as barred by the statute of limitations was not based on the evidence, and it was arbitrary and capricious for the arbitrator to dismiss the claim since petitioner timely made its demand for arbitration within three years of its first no-fault payment (see CPLR 214 [2]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 219-220, supra; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Matter of Allcity Ins. Co. v GEICO-Government Empls. Ins. Co., 2003 NY Slip Op 50898[U]).

Accordingly, the petition seeking to vacate the July 2002 arbitrator’s award is granted and the matter is remanded for arbitration before a different arbitrator.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Golia, J., concurs in the following memorandum: In this concurring opinion, I wish to address the conduct of the respondent, respondent’s counsel and Arbitration Forums, Inc. for persisting in their defiance of this court’s prior ruling concerning this identical issue which has been previously specifically addressed (see Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003]).

Counsel for respondent as well as respondent (and indeed Arbitration Forums, Inc.) were fully aware of the herein decisions of the Civil Court (both Ritholtz and Kerrigan, JJ.) when they argued before the arbitrator, for the third time, that the petition should be dismissed on statute of limitations grounds, after the above two Civil Court decisions found the direct opposite. (I do, however, note the lower court’s [Kerrigan, J.] decision erroneously reversed itself after the third petition.) Nonetheless, they further disregarded a decision of the Civil Court when they attempted to circumvent that court’s ruling by applying directly to the Supreme Court for an order confirming the finding of the arbitrator rather than appealing the order of the Civil Court if they believed it was incorrect.

The willful and contumacious conduct, and the arrogance to the extreme of those mentioned above, warrant sanctions. Unfortunately, the appellant failed to preserve for review by the Appellate Term the application for sanctions on the grounds of “{**4 Misc 3d at 28}forum shopping.” If that issue had been preserved, I would recommend the imposition of such sanctions. That the respondent continues to raise the issue of the statute of limitations as a defense and that Arbitration Forums continues to make such decisions, previously found to be arbitrary and capricious, needs to be addressed. In addition, I would recommend in the strongest terms possible that the petitioner’s bar seek sanctions as against Arbitration Forums, Inc. and any counsel, staff or otherwise, that persists in consciously disregarding court rulings and continue to dismiss inter-company no-fault arbitrations on statute of limitations grounds based upon the demand for arbitration being made more than three years from the date of the accident even though it was less than three years from the date of the first no-fault payment.

I do not countenance the Appellate Term’s decisions or the decisions of the Civil Court being willfully ignored by a private arbitration company or counsel who appear before such forums.

Pesce, P.J., and Rios, J., concur; Golia, J., concurs in a separate memorandum.

[*1]

Civil Court of the City of New York, Kings County, May 3, 2004

APPEARANCES OF COUNSEL

Teresa Spina, Woodbury (Kevin Barry of counsel), for defendant. Anatta Levinsky, P.C., Brooklyn, for plaintiff.

{**4 Misc 3d at 185} OPINION OF THE COURT

Ellen Gesmer, J.

{**4 Misc 3d at 186}Defendant has moved to dismiss plaintiff’s complaint pursuant to CPLR 3126 because plaintiff failed to appear at an examination before trial (EBT) scheduled by defendant. Defendant’s motion is granted unless the plaintiff appears for an EBT under the terms set forth below.

Procedural History and Facts

In this action, plaintiff is seeking payment of first-party no-fault benefits for medical equipment provided by it to Leonie Joiles, who assigned to plaintiff her rights to no-fault benefits from defendant, her insurer.^[FN*] The defendant timely denied payment, on the grounds of medical necessity, based on an independent medical peer review. [*2]

Plaintiff commenced this action on or about March 20, 2003. Simultaneously with the service of its answer on April 9, 2003, defendant served plaintiff with a demand for verified interrogatories and a notice to take deposition upon oral examination. The answers to the interrogatories were due 20 days later and the deposition was scheduled for June 18, 2003, more than 60 days later. At plaintiff’s request, defendant rescheduled the deposition to August 26, 2003. Plaintiff failed to appear.

Analysis

Although the CPLR permits a party to utilize both written interrogatories and oral depositions in pretrial discovery, a party should generally complete one form of discovery before invoking another (Giffords Oil Co. v Spinogatti, 96 AD2d 851 [2d Dept 1983]; Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Indeed, the Second Department has held that “the noticing of an oral deposition prior to reviewing the answers interposed to the interrogatories and without a determination of the necessity for further disclosure, verges on an abuse of the judicial system.” (Barouh Eaton Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874 [2d Dept 1980].) In this case, although the defendant noticed the deposition at the same time that it sent the demand for {**4 Misc 3d at 187}interrogatories, it did not take any action to enforce its request for a deposition until well after receiving the interrogatories. Moreover, in support of its motion, defendant’s counsel affirmatively asserts that “the examination before trial of plaintiff is necessary and material in order to defend this action properly,” thus meeting the standard set by the Second Department for using a second discovery device (Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized”]). Consequently, defendant has established a prima facie case that it is entitled to go forward with its deposition.

In opposition to defendant’s motion, plaintiff initially argues that it made a demand for verified interrogatories to which defendant did not respond. Plaintiff has failed, however, to show why defendant’s failure to respond to interrogatories would excuse its failure to attend a deposition or serve as a defense to a motion to compel. In any event, this argument is particularly weak because plaintiff’s deposition was scheduled for August 26, 2003, well before the responses to plaintiff’s demand for interrogatories were even due.

More substantially, plaintiff argues, relying on Ostia Med. v Government Empls. Ins. Co. (1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003]) and Zlatnick v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]), that defendant may not proceed with its deposition because it failed to advise plaintiff that its answers to defendant’s demand for verified interrogatories were “inadequate, incomplete or defective.” The court rejects this argument for several reasons.

First, unlike the plaintiff medical providers in Ostia and Zlatnick, the plaintiff in this case did not move for a protective order with regard to the deposition, pursuant to CPLR 3103, and still has not done so. While there is no absolute time limit for moving for a protective order, the [*3]court may imply a standard of reasonableness, especially where the time for the scheduled deposition has long passed (Philip v Monarch Knitting Mach. Corp., 169 AD2d 603 [1st Dept 1991]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). Plaintiff is in a particularly poor position to complain about being compelled to appear at the deposition since it took no action to object to the deposition either before it was scheduled or in the eight months since. While that would not prevent {**4 Misc 3d at 188}plaintiff from opposing this motion, it would certainly have been the better practice for plaintiff to move for a protective order rather than to just ignore defendant’s deposition notice.

Secondly, this court disagrees with the rulings in Ostia and Zlatnick that the burden is on the defendant insurance company to justify its need for a deposition. Indeed, that conclusion seems inconsistent with the holding in Ostia that a medical provider which brings an action in Civil Court to obtain no-fault benefits has the same discovery obligations under article 31 of the CPLR as any other litigant (Ostia, 2003 NY Slip Op 51560[U], *12; see also Albatros Med. v Government Empls. Ins. Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). As set forth above, the general rule is that if a litigant determines that the responses to interrogatories from the other side do “not adequately disclose all evidence material and necessary to the prosecution or defense of the action,” then it may utilize depositions or any other available remedy, without first seeking court permission (Katz v Posner, 23 AD2d at 775). If the other party moves for a protective order, it must then bear the burden of showing that the discovery sought is not necessary, consistent with the well-established principle that “the burden of demonstrating an immunity from discovery is on the party asserting the immunity.” (Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627, 628 [1st Dept 1984]; see also Koump v Smith, 25 NY2d 287, 294 [1969]; Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689, 690 [1st Dept 1993]; Jarvis v Jarvis, 141 Misc 2d 404, 406 [Sup Ct, NY County 1988].) The decisions in Ostia and Zlatnick improperly shift the burden to the party seeking discovery to justify a request for discovery, rather than imposing the burden on the party seeking to avoid discovery to show that the discovery sought is not necessary. In this case, plaintiff has certainly not met its burden of showing that the discovery sought is not proper.

Third, even if the court were to find that the burden is on defendant to show that the discovery is justified, it would find that defendant had met its burden. First, defendant has shown that it made a timely denial based on medical necessity, so defendant has preserved issues on which discovery is appropriate (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Ostia, 2003 NY Slip Op 51560[U], *11). Secondly, plaintiff’s responses to defendant’s interrogatories are insufficient on their face for at least two reasons. As an initial matter, the responses to {**4 Misc 3d at 189}the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney. Consequently, as formulated, the interrogatories do not subject plaintiff or its principals to cross-examination, as would properly verified interrogatories. Finally, plaintiff fails to set forth any responses to the interrogatories concerning the medical necessity of the equipment provided. Since that is the crux of the issue in this case, defendant is entitled to conduct a deposition of plaintiff to obtain the information. [*4]

Conclusion

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has disobeyed a court order is a matter within the discretion of the court (Jaffe v Hubbard, 299 AD2d 395, 396 [2d Dept 2002]). Although the court has rejected plaintiff’s arguments, the court finds that plaintiff presented a good faith argument for its failure to attend the scheduled deposition. Accordingly, the court holds that the correct remedy in this case is to permit plaintiff an opportunity to appear for a deposition, subject to the penalty of dismissal of plaintiff’s case if it fails to do so. The plaintiff shall appear for a deposition at a date, time and place to be agreed to between the parties, or, failing agreement, at 10:00 a.m. on June 14, 2004 at the courthouse located at 141 Livingston St., Brooklyn, New York. In the event that plaintiff does not appear for a deposition on the date agreed to by the parties or on the date set by the court, defendant may settle an order on notice, pursuant to 22 NYCRR 208.33, dismissing the action.

Footnotes

Footnote *: The complaint does not allege that Ms. Joiles was injured in a car accident, which is an essential element of a claim under the No-Fault Law (Insurance Law § 5103). Accordingly, the court could dismiss the complaint sua sponte for failure to state a cause of action. The complaint refers to an annexed claim for payment, which was not attached to the copy of the complaint submitted with the moving papers. The claim for payment may have provided the missing information, since the denial of the claim refers to Ms. Joiles as the “injured person” and refers to an accident on May 18, 2000. Accordingly, the court will not dismiss the complaint, but cautions counsel to include the necessary allegations in their complaints.