—[*1]

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered February 19, 2003. The order denied petitioner’s motion for a permanent stay of arbitration and respondent’s cross motion for summary judgment and ordered that the matter proceed to arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent sustained injuries in a single-car accident at 2:51 a.m. on March 31, 2000. A blood test at the hospital at 4:20 a.m. indicated that respondent had a blood alcohol content of .10%. Respondent was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and subsequently pleaded guilty to driving while ability impaired (§ 1192 [1]). Respondent applied for no-fault benefits under her motor vehicle insurance policy, but petitioner denied the claim on the ground that it fell within the intoxication exclusion of the policy. Respondent filed a demand for arbitration, contending that she was not intoxicated at the time of the accident, and petitioner in turn commenced this proceeding seeking a stay of arbitration. After Supreme Court granted petitioner’s order to show cause for a temporary stay, petitioner moved for a permanent stay of arbitration. Respondent cross-moved for summary judgment granting her no-fault benefits as a matter of law. The court denied the motion and cross motion and ordered that the matter proceed to arbitration, concluding that, while res judicata did not apply to bar arbitration, respondent raised an issue of fact whether she was actually intoxicated within the meaning of the policy.

We affirm, but for a different reason. We conclude that petitioner’s supporting affidavit fails to allege a sufficient basis upon which to grant a stay of arbitration (see CPLR 7503 [b]). There are only three threshold questions to be resolved by a court faced with a motion to stay arbitration: whether there is a valid agreement to arbitrate; if so, whether there was compliance with the agreement; and whether the claim would be time-barred if asserted in State court (see Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193, 201-202 [1995], rearg denied 85 NY2d 1033 [1995]; Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 6-7 [1980]). The insurance policy at issue here contains a broad agreement to arbitrate “any matter relating to the [*2]claim” and thus it is for the arbitrator to decide whether respondent was intoxicated and thus not entitled to no-fault benefits under the policy (see Matter of Cowper Co. [Hires-Turner Glass Co.], 72 AD2d 934 [1979], affd 51 NY2d 937 [1980]; see also Matter of Resnick v Serlin, 119 AD2d 825 [1986]). Further, the policy does not contain a condition precedent to arbitration and there is no dispute over a limitations period. Thus, we conclude that the parties agreed to arbitrate the instant dispute and that it is for the arbitrator to address the merits of the dispute (see State Farm Mut. Auto. Ins. Co. v Alfarone, 62 AD2d 1034, 1035 [1978]; see also CPLR 7501). Present—Green, J.P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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. Waltrous, J.), entered on April 22, 2003, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs instituted suit to recover first-party no-fault benefits for chiropractic services they provided to the injured assignor in the sum of $2,603.36. 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 three distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A,V.
Chiropractic P.C. have the same business address, Daniel Kim’s Acupuncture, P.C. has a different address. 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 (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), and thus the court correctly determined that plaintiffs failed to make out their prima facie entitlement to summary judgment.
Decision Date: April 27, 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 (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,925, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff, a medical supply house, commenced this action to recover first-party no-fault benefits for medical equipment furnished its assignor. Plaintiff subsequently moved for
summary judgment on its two claims: one for $795 (submitted January 31, 2001) and the other for $1,220 (submitted March 1, 2001).

After plaintiff established a prima facie case for summary judgment by establishing that it submitted complete proofs of claim and the amount of the loss (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to the $795 claim, defendant conceded that it failed to timely pay or deny the claim within 30 days of the date plaintiff alleged that it should have been in receipt of the mailed claim [*2]forms (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]), but argued only that it never received the proof of claim. Upon its failure to rebut the presumption of receipt that arose upon plaintiff’s proof of proper mailing (e.g Kihl v Pfeffer, 94 NY2d 118 [1999]), summary judgment should have been granted as to said claim.

With respect to the second claim for $1,220, defendant argued only that its denial was both timely and proper because the assignor failed to cooperate with its verification request in the form of an examination under oath (EUO), as permitted by the Insurance Regulations then in effect and
required by the terms of the insurance policy. However, at the time plaintiff’s claims were filed, EUOs were not available as a form of verification. The provision requiring the injured person to appear for an EUO was not in effect until April 5, 2002 (see 11 NYCRR 65-3.5 [e]). The relevant Insurance Regulation in effect at the time of the plaintiff’s submission of the claims required the injured person to submit to an independent medical examination (IME), but contained no specific reference to an EUO (see 11 NYCRR 65.12). Since there was no provision authorizing such a procedure, defendant’s request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim. Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault endorsement, an “internally complete and . . . distinct part of the insurance policy, . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; see also A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

In light of the foregoing, plaintiff would normally be entitled to the granting of its motion for summary judgment in its entirety. It is noted, however, that the documents which plaintiff included as proof in support of its motion for summary judgment revealed that the medical
equipment prescribed for plaintiff’s assignor did not include the TENS belt ($90) which was listed in plaintiff’s claim as well as in the receipt of items delivered to plaintiff’s assignor. While defenses based on defects in the proof of claim are generally precluded if not timely asserted, plaintiff, having introduced an issue of fact which, if true, amounts to a complete defense to a portion of the claim, should be estopped from invoking the preclusion rules to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Accordingly, the compensation awarded to plaintiff should be reduced by the amount billed for the unprescribed item.

Thus, plaintiff’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $1,925. The matter is accordingly remanded to the court below for a calculation of the statutory interest on $1,925, that portion of the claim for which summary judgment is granted, an assessment of attorney’s fees due on $1,925 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County

(A. Agate, J.), entered January 31, 2003, granting plaintiff’s motion for summary judgment in the principal sum of $1,472, and denying its motion for summary
judgment dismissing the complaint.

Order unanimously modified by denying plaintiff’s motion for summary judgment and granting defendant’s motion to the extent of awarding it partial
summary judgment dismissing plaintiff’s $120 claim; as so modified, affirmed without costs.

In or about June 2002, plaintiff commenced this action to recover first- party no-fault benefits for medical equipment it provided to its assignor pursuant to
Insurance Law § 5101 et seq., as well as statutory interest and attorney’s fees.
Thereafter, plaintiff moved for summary judgment on its $586 and $886.50 claims. Defendant opposed the motion and moved for summary judgment dismissing the complaint. By order entered January 31, 2003, the court below granted plaintiff’s motion for the amount demanded in the complaint ($1,472 rather than $1,472.50)
and denied defendant’s motion.

A review of the record indicates that plaintiff established its prima
facie entitlement to summary judgment on its $586 claim, as well as $766.50 of its $886.50 claim, by showing that it submitted complete proofs of claims which
defendant did not pay or deny 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]). We find [*2]that inasmuch as neither plaintiff’s medical reports nor its
prescriptions mention a “TENS accessory kit,” for which plaintiff seeks $120, plaintiff failed to submit a properly completed claim form therefor and did not establish its
prima facie entitlement to summary judgment for $120. The burden then shifted to defendant to demonstrate a triable issue of fact with respect to the $586 claim and
the $766.50 sum (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The record indicates that defendant denied both claims based on the
assignor’s failure to appear at medical examinations. Inasmuch as the assignor
never appeared for an examination, we find that defendant raised a triable issue of fact as to said claims (see Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388 [2003]; cf. Park Health Ctr. v Liberty Mut. Ins. Co., 191 Misc 2d 91, 92-93 [2001]). We note that although the denial for the $886.50 claim indicates that it was denied due to plaintiff’s failure to make said claim within 180 days of the rendered services (see 11 NYCRR 65.11 [m] [3]), neither plaintiff’s nor defendant’s motion papers addressed this issue in the court below, and defendant has not raised this issue in its appellate brief. Consequently, said issue is deemed abandoned and will not be considered by this court (see Baliva v State Farm Mut. Auto Ins. Co., 286 AD2d 953 [2001]).

A review of the record further indicates that defendant failed to establish its entitlement to summary judgment dismissing the complaint in its entirety on the ground that the assignor failed to appear for medical examinations (Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388, supra). However, inasmuch as plaintiff did not submit a properly completed claim form for the TENS accessory kit, it did not establish its prima facie entitlement thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 2d & 11th Jud Dists], supra), and defendant is not required to pay said
claim (see Insurance Law § 5101 et seq.; 11 NYCRR 65.15 [g]). Consequently, that part of defendant’s motion seeking dismissal of the $120 claim for the TENS accessory kit is granted. Defendant’s remaining contentions lack merit.
Decision Date: April 14, 2004

[*1]

Civil Court of the City of New York, Queens County, April 12, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz P.C., White Plains (James G. Eberz of counsel), for defendant. Baker & Barshay, LLP, Hauppauge (Gil McLean of counsel), for plaintiff.

{**3 Misc 3d at 926} OPINION OF THE COURT

Charles J. Markey, J.

The principal issue in defendant Republic Western Insurance Company’s motion to reargue—incorrectly labeled a motion to renew—is the propriety of this court, in its prior decision of July 7, 2003 (reported electronically at 2003 NY Slip Op 51070[U] [2003]), in employing information made available on a state governmental Web site and examining and using admissions, statements made by both Republic and its sibling corporation, U-Haul, on their Internet Web sites. This motion to reargue appears to be the first in the nation to challenge a court’s use of the Internet to deflate the sails of a party’s arguments.

In the prior opinion, this court, addressing an issue of then first impression in this state, rejected a motion by Republic to dismiss for lack of subject matter jurisdiction, pursuant to New York Civil Court Act § 404, or to dismiss for forum non conveniens. The plaintiff health care provider, N.Y.C. Medical and Neurodiagnostic, P.C., is the assignee of no-fault first-party benefits. The vehicle that was involved in the accident causing injury was owned by U-Haul International, Inc., famous for its rental of vehicles, and was leased or rented from a U-Haul facility in the City of New York, and was insured by defendant Republic. The basis of Republic’s prior motion to dismiss was that its underwriting of all U-Haul vehicles was done in the State of Arizona, it is incorporated in the State of Arizona, and that the sole office out of which it conducts business in the State of New York is located in the Town of Purchase, in the County of Westchester.{**3 Misc 3d at 927} According to Republic’s logic and prior arguments, the facts that the U-Haul vehicle was rented in New York City, the U-Haul vehicle was insured by Republic, the accident occurred in New York City, the persons involved in the accident reside in New York City, and the health care provider from which the assignor sought treatment—under a state-[*2]controlled system of no-fault benefits—is located in Queens County, in New York City, are all entitled to no weight.

According to Republic, the only places where the plaintiff health care provider could litigate the issue of reimbursement against insurer Republic would be in either Westchester County or the State of Arizona. Since this court does not agree that the tail wags the dog, under the proverbial adage, it rejected totally Republic’s motion to dismiss. This court’s seminal decision on the issue on whether the Civil Court of the City of New York has jurisdiction will soon be argued before the Appellate Term, Second and Eleventh Judicial Districts (case No. 2003-1472).

As an initial matter, counsel for Republic moves to renew this court’s prior decision. The fact that James G. Eberz, Esq., a partner of the firm representing Republic, calls this motion one to renew is not dispositive (see, Alpert v Wolf, 194 Misc 2d 126, 133 [Civ Ct, NY County 2002]). A trial court has an obligation to appellate justices to correct any mislabeling of a motion, so as not to add to the burdens of the reviewing justices. Fundamental differences exist between a motion to reargue and one to renew. The motion to reargue simply states that the court overlooked or misapprehended the facts or the law. The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the court originally (see discussion in Alpert v Wolf, 194 Misc 2d at 133; D. Siegel, NY Prac § 254 [3d ed 1999]). Republic, however, fails to set forth any new facts and simply rehashes its old and rejected arguments. This court doubts that Mr. Eberz and his law firm are ignorant of the distinctions, since the denial of a motion to renew is appealable, whereas the denial of a motion to reargue is not appealable (see, Pizarro v Evergreen Estates Hous., 5 AD3d 143 [1st Dept 2004]; Ruddock v Boland Rentals, 5 AD3d 368 [2d Dept 2004]).^{[FN1]{**3 Misc 3d at 928}}

The present motion to reargue, as it ought to have been denominated, assails this court, for two reasons. First, Republic’s motion states that the court should not have looked for the information posted on the Web site of the Department of Insurance of the State of New York (, cited in the prior opinion, 2004 NY Slip Op 51070[U], *6), disclosing that it is authorized to engage in the business of insurance in the State of New York. Second, Republic’s counsel contends that this court erred in searching the Web sites of Republic and its sibling corporation, [*3]U-Haul.

Turning first to the contention that this court’s use of a state governmental Web site was improper, the examples of court decisions making similar citations are legion. In Efam Enters. v Travelers Indem. Co. of Am. (2002 WL 1148830, 2002 US Dist LEXIS 10046 [SD NY, May 29, 2002]), for example, the federal court referred to both the Web sites of the New York State and Connecticut Departments of Insurance to verify the defendant insurer’s identity and corporate status (accord, United States Postal Serv. v Flamingo Indus. [USA], Ltd., 540 US —, —, 124 S Ct 1321, 1329 [2004] [unanimous Supreme Court referred to revenue and business of the United States Postal Service, as detailed on its Web site]; Verizon Communications Inc. v Law Offices of Curtis V. Trinko, LLP, 540 US —, —, 124 S Ct 872, 877 [2004] [referring to consent decree on Web site of the Federal Communications Commission]; Doe v Merten, 219 FRD 387, 396 n 28 [ED Va 2004] [citing statistics on a Web site compiled by the Bureau of Citizenship and Immigration Services of the United States Department of Homeland Security]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 234 n 1, 238 n 7 [2001] [citing homicide statistics maintained by governmental agencies and explanation of tracing a gun’s ownership from the Web site of the Bureau of Alcohol, Tobacco and Firearms]).

Legislative bodies, courts, governmental agencies, and public entities have commendably made information available on {**3 Misc 3d at 929}Web sites that have dramatically facilitated the quick location of information. Just as computerized research of Westlaw and LEXIS have made resort to more time-consuming conventional research secondary, factual information and data that, in the past, would have taken days and hours to retrieve, are now available in a matter of seconds. Technological breakthroughs, including the immediate scanning of important documents and the tapping of a few strokes on a computer keyboard, speed fact-finding, ensure that documents will not be lost, misplaced, or stolen, and are highly reliable. For a researcher not to employ information placed on a governmental Web site, by a civil servant, for the benefit of the public would, indeed, be negligent and ridiculous. For a judge to ignore these new technological changes, made available by government and encouraged by court systems, would be to blind oneself.

Mr. Eberz, however, suggests that the references on the Web site posted by the Superintendent of Insurance of the State of New York may be incorrect in that Republic is not “licensed” to do business in the State of New York, but only “admitted” to do so. Mr. Eberz does not spell out the distinction or any pragmatic difference between the two terms.

First, Mr. Eberz’s attorney’s affirmation would be insufficient, as a matter of law, to spell out the difference between the two terms, assuming arguendo that there is one. At any rate, Republic is authorized, whether “admitted” or “licensed,” to do insurance business in New York (see, Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County, Nov. 19, 2003], and subsequent order, Index No. 50078/2003, Jan. 6, 2004). The records of the Superintendent of Insurance of the State of New York, posted on a governmental Web site and available to not only the undersigned, but also anyone else with access to the Internet, demonstrate that Republic is authorized to engage in the business of insurance in the State of New York.

The defendant’s argument regarding this court’s use of Republic’s Web site and that of U-Haul, its sibling company, fares no better. Republic’s argument is that this court, using the Web [*4]sites of U-Haul and Republic, found that U-Haul has numerous facilities in each of the five boroughs of the City of New York and that each of those U-Haul vehicles is insured by Republic.

The term “www” stands for the “world wide web” (see, Hill & Assoc. v Compuserve, Inc., 2003 WL 22327827, 2003 US Dist {**3 Misc 3d at 930}LEXIS 18187 [SD Ind, Sept. 26, 2003]). The statements placed on the Web sites of Republic and U-Haul were made, not by this court or some bystander, but by Republic and U-Haul and operate as admissions (see, Intel Corp. v Hamidi, 30 Cal 4th 1342, 1353, 71 P3d 296, 304 [2003] [statement posted on company’s Web site operated as an admission against it]). Second, by the very definition of “the world wide web,” the postings made by Republic and U-Haul were not simply targeted to a select few, to be privately guarded, but were electronically made available for everyone on the face of the earth with access to a computer to see.

Third, this court did not undertake its own personal investigation. Neither the undersigned nor any of its representatives or agents went to a U-Haul facility to take an application for a rental car or inquire about insurance for such a vehicle. This court, moreover, did not undertake its own poll or even send law clerks to the reading room of the main branch of the New York Public Library on Fifth Avenue to dig for statistics, articles, news accounts, or information written by a third party in a remote treatise. The facts secured by this court, furthermore, were not derived by framing term requests on any of the modern, popular search engines—such as Google, MSN Search, Yahoo Search, or Ask Jeeves—and, based on the information derived therefrom, used to fashion a factual argument to sandbag counsel.

Rather, the court, on its own initiative, explored the Web site of a party to this litigation and that of its sibling corporation. The statements made by Republic on its Internet site (www.repwest.com) were made by Republic itself, and, similarly, the statements made by U-Haul on its Web site (www.uhaul.com) were made by U-Haul itself. Republic’s counsel does not even challenge their accuracy. The research of and citation to a publicly posted Web site of a party to this litigation and that of its sibling corporation are proper. Moreover, those publicly available Web site statements merely reiterated what counsel for those two companies have already advised the Appellate Division in Matter of Wausau Ins. Co. v Ogochukwu (295 AD2d 280 [1st Dept 2002]) that Republic insures all U-Haul vehicles.

Republic’s reliance on the case of Central Hanover Bank & Trust Co. v Eisner (276 NY 121 [1937]) is misplaced. In that case, the lower court, disagreeing with the report of the special referee regarding the valuation of a parcel of property, made its own {**3 Misc 3d at 931}viewing of the real estate and noted facts that were not alluded to in the testimony and not directly having to do with the property in question. That type of personal investigation is a far cry from the facts of the instant case, where Republic and its sibling company, U-Haul, have made world wide declarations, on their Web sites, that Republic insures every vehicle rented and leased by U-Haul in the United States.

Fourth, this court’s research, framing a request of ” ‘world wide web’ or ‘www.!’ ” on Westlaw, as of April 12, 2004, resulted in 98 published judicial opinions in reported New York State cases (the NY-CS database) referring to a Web site, 38 such opinions by the Supreme Court of the United States (the SCT database), 1,314 officially reported opinions by all state courts (the allstates database) making such references, and a number of judicial opinions far too vast for Westlaw to retrieve in the databases of all federal courts (allfeds) and the New [*5]York Law Journal. Of the cases found by the framed search terms, this court has not reviewed each of them and, therefore, does not warrant that it involves a citation to an Internet Web site invoked by a court, on its own initiative. A perusal of some of the great number of cases, however, indicates that federal and state courts, throughout the country, readily and without apology, will refer to a Web site whenever necessary or helpful to make a point.

The United States Supreme Court, in Reno v American Civ. Liberties Union (521 US 844, 853 [1997]), discussing the importance of the Web, stated: “From the publisher’s point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers” (id. at 853, quoted by the Court of Appeals with approval in Firth v State of New York, 98 NY2d 365, 370 [2002]; see, e.g., Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 342 [1999] [Court of Appeals referred to a study published on a Web site when discussing the cash value of life insurance policies]).

The Supreme Court’s observation about the Internet’s power and scope is not lost on Republic and U-Haul, companies that smartly employ a Web site in order to drum up business. Corporations want their Web sites to be read, not ignored, and, indeed, are constantly devising ways for search engines to catapult their Web sites to the top of a search request. Republic and U-Haul posted the information on their Web sites, hoping to attract the attention of literally millions of persons spanning the {**3 Misc 3d at 932}globe “for an indefinite period of time” (Firth v State, 98 NY2d at 370). If U-Haul were, indeed, so private about the information contained on its Web site, it would not have emblazoned its Web address so prominently on each of its seemingly ubiquitous vehicles.

Fifth, this court notes that the research on the Web sites was done not on some private personal computer, but on Internet access provided by the Office of Court Administration to the undersigned and every other judge of this state, reflecting a policy that courts utilize emerging technology in dispensing justice.

Finally, the implication of Republic’s argument, that the court was acting as plaintiff’s advocate in constructing an argument, has no merit. In the prior opinion (2003 NY Slip Op 51070[U], *3), marking the seminal decision rejecting Republic’s contention that it did not transact business in the City of New York, this court expressed its dissatisfaction with the initial presentations of both parties to this litigation and directed further submissions. This court then discussed some of the supplemental information supplied by both counsel (at *3-4). This court’s references to the U-Haul and Republic Web sites were thus not the sole foundation for its decision and order.

Trying to minimize its nexus with U-Haul, Republic contends, in its motion to reargue, that there is really no connection, and the fact that there are two sibling companies under one umbrella, “mega corporation,” Amerco, should have no weight. The comparison by Republic’s counsel of the relation of U-Haul and Republic to the sibling companies of other “mega corporations” (citing Cendant and Altria) is unavailing, because the examples of other sibling companies cited in Republic’s papers truly are independent and do not depend on the other’s existence.

In the present case, in stark comparison, it is incontestable that U-Haul would not be able to operate business in the City of New York and the State of New York unless each of its [*6]vehicles had the minimum insurance required by law (Vehicle and Traffic Law § 370 [3]). Each of the U-Haul vehicles could not be rented, would remain idle in the many U-Haul rental facilities located in the City of New York, and would not be permitted to exit their gates onto the thoroughfares of this City, unless it was insured.

In ELRAC, Inc. v Ward (96 NY2d 58 [2001]), a unanimous Court of Appeals explained that, pursuant to Vehicle and Traffic Law {**3 Misc 3d at 933}§ 388, the owner of a motor vehicle may be held civilly liable for any damage caused by the permissive user of the vehicle (96 NY2d at 72-73). Turning to the issue before it in ELRAC, the Court of Appeals continued that Vehicle and Traffic Law § 370 barred a rental or leasing company from pursuing an action for indemnification from its renters for amounts up to the minimum liability requirements (id. at 73). Section 370 (3) requires rental agencies to obtain a minimum amount of insurance for its vehicles (Vehicle and Traffic Law § 370 [3]).

Chief Judge Kaye, speaking for the entire Court in ELRAC, stated:

“The language of section 370 is plain and precise. Common carriers, including rental car companies, are required to obtain insurance for their vehicles . . . Furthermore, the policy must ‘inure to the benefit‘ of any permissive user of the vehicle (Vehicle and Traffic Law § 370 [1] [b] [emphasis added]). A renter is, of course, a permissive user. Thus, section 370 clearly requires the rental company to provide the renter with this minimum level of coverage.” (96 NY2d at 73; accord, Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004], supra [Second Department affirmed determination that defendant vehicle rental company “as a ‘corporation engaged in the business of renting or leasing rental vehicles to be operated upon the public highways,’ ” quoting Vehicle and Traffic Law § 370 (3), must provide primary insurance to permissive users of its vehicles].)

The insurance demanded by Vehicle and Traffic Law § 370 (3) and § 388, in the present case, is supplied by Republic, U-Haul’s sibling company, thereby enabling U-Haul to collect substantial revenues from New York City customers and to maintain the many U-Haul rental facilities that operate in this City. Without the insurance furnished by Republic, its sibling company, U-Haul could take out all the Yellow Pages advertisements it likes, but it legally could not rent a single car in the State of New York. Republic’s counsel does not seem to challenge that fact. It is surreal for Republic to pretend that the World Wide Web does not exist, U-Haul can rent vehicles without insurance, and that the ties between Republic and U-Haul are nebulous.

Every single U-Haul vehicle rented by it in the United States is insured by Republic. Indeed, as stated above, in front of a panel of Justices of the Appellate Division, First Department,{**3 Misc 3d at 934} when there was confusion as to the insurer of the U-Haul vehicle, the attorneys for U-Haul and Republic advised the Court that all U-Haul vehicles are insured by defendant Republic (Matter of Wausau Ins. Co. v Ogochukwu, 295 AD2d 280 [2002], supra).

The entire policy behind the New York Legislature’s scheme for providing no-fault first-party benefits, the prompt payment or speedy disposition of such claims, would crumble if health [*7]care professionals were forced to run from all parts of this state to Westchester County or to travel to Arizona to litigate their right to reimbursement (see discussion of the hypothetical examples posited in the prior opinion, 2003 NY Slip Op 51070[U], *9; see generally, Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d Dept, Dec. 24, 2003] [“to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims”]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept, Dec. 24, 2003]; Zlatnick v Government Empls. Ins. Co., 2 Misc 3d 347 [Civ Ct, Queens County 2003] [regarding the general undermining of the policy of the no-fault laws]).

As stated at the outset of this opinion, the tail does not wag the dog, and this court also rejects the alternative argument of Republic’s counsel, on this motion to reargue, that a special exception should be carved for this self-styled “relatively small out of state carrier” (Eberz affirmation ¶ 9).

Republic’s motion to dismiss strikes at the heart of the Court of Appeals ELRAC decision (96 NY2d 58, 72-74 [2001], supra). Defendant Republic collects revenue by insuring the vehicles of its sibling corporation, U-Haul, in the City of New York, but, when an accident occurs, shirks its responsibilities under the no-fault scheme, and, indeed, frustrates and undermines the purpose of the no-fault laws, by trying to making it difficult for a health care provider to collect reimbursement for its services.

When Republic’s insurance makes it possible for U-Haul vehicles to be rented in all five boroughs of the City of New York and to circulate on the City’s highways and streets, and in its traffic, it does not matter whether the policy of insurance was written in Arizona, Alabama, or Alaska or whether Republic’s office in this state is located in Purchase, Plattsburgh, or Parkchester.

Republic has filed numerous similar motions to dismiss for lack of jurisdiction in the courts of inferior jurisdiction. As seen in {**3 Misc 3d at 935}some unreported opinions that preceded this court’s prior opinion, Republic’s arguments have convinced other courts to grant its motion to dismiss (see, e.g., PLP Acupuncture v Republic W. Ins. Co., Nassau Dist Ct, Feb. 25, 2003, Index No. 24863/2002 [no indication provided by plaintiff’s counsel what connection the case had to Nassau County]; Viva Massage Therapy v Republic W. Ins. Co., Civ Ct, Queens County, Feb. 25, 2003, Index No. 84410/2002 [motion to dismiss granted on default]; Ostia Med. v Republic W. Ins. Co., Civ Ct, Queens County, May 20, 2003, Index No. 66847/2002 [lamenting that plaintiff had not presented any evidence and had it done so “this Court may have rendered a different decision”]).

This court notes that, following the reporting of its prior opinion electronically in Westlaw and LEXIS and in print by the New York Law Journal, several courts, citing the decision, agreed with this court’s reasoning and began denying the same motion to dismiss by Republic (see, e.g., Heritage Med. Servs. v Republic W. Ins. Co., NYLJ, Mar. 9, 2004, at 19, col 1 [Civ Ct, Kings County]; Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U], supra; West Tremont Med. Diagnostics v Republic W. Ins. Co., Civ Ct, Bronx County, Aug. 29, 2003, Index No. 72381/2002).

In the opinion of the undersigned, adoption of Republic’s arguments would result in the dessication and evisceration of the no-fault scheme. Only the Appellate Term’s forthcoming [*8]review of the issue will permit a dispositive holding to avoid the inconsistent results now being reached.

Republic’s arguments about this court’s citations to Republic’s and U-Haul’s admissions made on the World Wide Web are vacuous. The story goes that Abraham Lincoln once asked a crowd how many legs a sheep would have if we called its tail a leg. When the crowd yelled back, “Five,” Lincoln shot back, answering his own question, “No, four, because calling a tail a leg doesn’t make it one.” Similarly, Republic’s repeated claims of lack of jurisdiction for its insurance of a U-Haul vehicle rented in New York City ought to fall on deaf ears.

Footnotes

Footnote *: Another possible reason why Republic sought renewal, instead of reargument, is that its counsel may have believed that a motion to reargue would be untimely, since the date of its motion to renew is August 28, 2003, well past 30 days following the date of service of the notice of entry on July 10, 2003 (see, CPLR 5513). Plaintiff’s counsel, however, in serving the notice of entry, failed to append a copy of the order bearing the clerk’s stamped date of entry of July 8, 2003, and, in the accompanying notice, incorrectly identified the date of entry as July 7 (which was only the date that the decision and order was signed). The notice of entry that was served upon Republic’s counsel thus was a nullity (see, Baranello v Westchester Sq. Med. Ctr., 282 AD2d 259 [1st Dept 2001]), and this motion to reargue is thus timely (see, CPLR 5513). Even if untimely, a court, under the provident exercise of its discretion, may entertain an untimely motion to reargue (see, e.g., Garcia v Jesuits of Fordham, 6 AD3d 163 [1st Dept 2004]).

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County

(D. Kurtz, J.), entered on September 25, 2002, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $10,002.86 and by remanding the matter to the
court below for further proceedings in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff sues to recover the sum of $13,573.32 representing first-party no-fault benefits for medical supplies it provided to the injured assignors. In our opinion, plaintiff’s motion for summary judgment should have been granted to the extent of awarding plaintiff partial summary judgment in the sum of $10,002.86, representing those claims which were not denied by defendant until more than 30 days after plaintiff had submitted them (11 NYCRR 65.15 [g] [3]) since, as to said claims, the insurer is precluded from raising the proffered defenses [*2](Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiff has established a prima facie case, it was entitled to partial summary judgment with respect thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra) including statutory interest and attorney’s fees (see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641). The matter is accordingly remanded to the court below for a calculation of such interest and attorney’s fees (see Insurance Law § 5106 [a]; former 11 NYCRR 65.15 [h] [1];
65.17 [b] [6]).

However, plaintiff’s motion for summary judgment was properly denied as to the remaining claims which defendant had timely denied in accordance with the
Insurance Regulations. Insurance Regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1) provides:

“(b)(1) For medical equipment and supplies (e.g. TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150% of the documented cost of the equipment to the provider.”

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,347.50, and matter remanded to the court below for a calculation of statutory interest and an assessment of
attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

For the reasons set forth in Amaze Med. Supply Inc. v Eagle Ins. Co. (NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), plaintiff established a prima facie case by its properly submitted proof of claim (e.g. Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely denial, based on a medical examination or a sufficiently detailed peer review report (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant failed to accompany its otherwise timely claim denial with the requisite proof, and in the absence of any other defense raised in the denial form including the purported defense, raised for the first time in opposition to the summary judgment motion, that the benefits sought for medical equipment provided to the assignor exceeded 150 percent of the [*2]equipment’s cost from the supplier (11 NYCRR 68, Appendix 17-C, Part E [b] [1]), defendant is precluded (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

However, in addition to its claim forms, plaintiff’s proof in support of its motion for summary judgment contained documents that had not previously accompanied said forms. The documents revealed that the prescribed medical equipment did not include two items, an EMS belt ($78) and an EMS kit ($120), listed in the invoices of supplies delivered and for which benefits were claimed. While the failure timely to object to defects in the proof of claim waives all such objections thereto (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699,
701 [2001]), having interjected an issue of fact which, if true, amounts to a complete defense to a portion of the claim, plaintiff should be estopped from invoking waiver (or preclusion) to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $1,347.50, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 65.15 [h] [1]; 11 NYCRR 65.17 [b] [6]; see St. Clare’s Hosp. v Allstate Ins Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered March 19, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment deemed an appeal from the judgment, entered pursuant to said order, on May 14,

2003, awarding plaintiff the principal sum of $1,791.73 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered March 19, 2003, as granted plaintiff’s cross motion for summary judgment vacated, plaintiff’s cross motion denied and matter remanded to the court below for
all further proceedings.

Plaintiff commenced this action to recover $1,791.73, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered March 19, 2003, the court
below denied the motion and granted the cross motion. A judgment was
subsequently entered pursuant to said order on May 14, 2003 awarding plaintiff the sum of $2,485.08. [*2]

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names the assignee merely as “Damadian MRI.” Although
the assignment demonstrates plaintiff’s standing to sue sufficient to withstand a
motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June
25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant’s notices for examinations under oath did not
toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs.
PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, plaintiff’s cross motion for summary judgment should have been denied. Moreover, defendant’s motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-717 Q C, decided herewith).
Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County

(L. Baily-Schiffman, J.), entered January 31, 2003, which granted defendant’s
motion to vacate the default judgment.

Order unanimously reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate a default judgment, the movant must establish
both a reasonable excuse for defaulting as well as a meritorious defense to the
action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of
Gambardella v Ortov Light., 278 AD2d 494 [2000]). While the determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court
(Matter of Gambardella v Ortov Light., 278 AD2d 494, supra), the movant must
submit supporting facts in evidentiary form sufficient to excuse the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; Bravo v New
York City Hous. Auth., 253 AD2d 510 [1998]). In the case at bar, the affidavit [*2]
submitted in support of defendant’s motion was from one of its employees allegedly having personal knowledge of the claim. However, said employee failed to set forth supporting facts in evidentiary form indicating who made the purported inquiry about
an extension of time to answer, whether the inquiry was oral, written or made in
person, and on what date the purported inquiry was made. Accordingly, the
employee’s affidavit was insufficient to establish a reasonable excuse.

Furthermore, while defendant argues that it has a meritorious defense to the action, to wit, the no-fault claim was timely denied based on a peer review, it appears that such review was conclusory in nature and lacked a medical rationale for the claim’s rejection (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ,
Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Therefore, we are of the opinion
that defendant likewise failed to establish a meritorious defense to the action.

Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered February 26, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order, on April 8, 2003, awarding plaintiff the sum of $1,469.84 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered February 26, 2003, as granted plaintiff’s cross motion for summary judgment vacated, plaintiff’s cross motion denied and matter remanded to the court below for all further proceedings.

Plaintiff commenced this action to recover $878.67, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered February 26, 2003, the court below denied the motion and granted the cross motion. A judgment was subsequently entered pursuant to said order on April 8, 2003 awarding plaintiff the sum of $1,469.84.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names [*2]the assignee merely as “Damadian MRI.” Although the assignment demonstrates plaintiff’s standing to sue sufficient to withstand a motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June 25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant’s notices for examinations under oath did not toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). In view of the foregoing, plaintiff’s cross motion for summary judgment should have been denied. Moreover, defendant’s motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-862 Q C, decided herewith).
Decision Date: April 09, 2004