[*1]

Supreme Court, Appellate Term, Second Department, April 9, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Shapiro Beilly Rosenberg Aronowitz Levy & Fox, LLP, New York City (Roy J. Karlin of counsel), for respondent.

{**3 Misc 3d at 44} OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding plaintiff partial summary judgment in the sum of $2,598.04, 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.

In this action to recover $2,998.04 in assigned first-party no-fault insurance benefits, defendant insurer denied all but $780.96 of plaintiff’s $3,779 claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in plaintiff’s “geographic location” (cf. 11 NYCRR 68.5 [b]) and because certain of the items claimed, two “TENS Belts” ($78) and two “TENS Accessory Kits” ($122), were duplicative of other items for which benefits were paid. In Kings Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 1681[U] [App Term, 9th & 10th Jud Dists]), the court concluded that because the Insurance Department regulation permitting reference to “the prevailing fee in the geographic location of the provider” pertains only where “the superintendent has not adopted or established a fee schedule applicable to the provider” (11 NYCRR 68.5 [b]), and that the [*2]regulatory limitation on a provider’s medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]) is an applicable fee schedule within the contemplation of 11 NYCRR 68.5 (b), an insurer may not deny a claim on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location. If, as defendant urges, the premises underlying the determination that such a rule “help[s] contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989] [internal quotation marks omitted]) are unsound, the solution is remedial action by the appropriate regulatory authority. Defendants claim denial, although timely, was factually insufficient in that it failed to provide any specifics with regard to its conclusory defense that certain of the prescribed medical equipment was duplicative. Under the circumstances, the defenses proffered in the denial forms were ineffective to avoid preclusion. A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law (Insurance Law § 5106 [a]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d {**3 Misc 3d at 45}11 [1999]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 140[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

However, plaintiff’s proof in support of the summary judgment motion included previously unproduced documents revealing that the equipment prescribed each assignor did not include the aforementioned “TENS accessory kit” ($122) and “TENS belt with straps” ($78), listed in the equipment provided each assignor and for which plaintiff sought $400 in no-fault health benefits. As we noted in Amaze Med. Supply v Eagle Ins. Co. (supra), where a plaintiff interjects an issue of fact in support of its motion for summary judgment which, if true, negates its prima facie case, if not amounting to a complete defense to a portion of the claim, namely, that the cost of unprescribed medical equipment is not a recoverable no-fault benefit, plaintiff should be estopped from invoking the waiver and preclusion rules which would otherwise apply in a no-fault benefits action (see 11 NYCRR 65.15 [d] [1], [2]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]). The defect was not apparent on the face of an otherwise sufficient claim, and insurers should not be required to demand such verification in every case to preserve the defense where no basis therefor is discerned, to the detriment of the purposes of the no-fault legislation, in essence, “to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]).

Thus, partial summary judgment should have been granted in the amount of $2,598.04. The matter is remanded to the court below for a calculation of the statutory interest and attorney’s fees due on said amount (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.

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

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Rajeev Singh appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated September 17, 2002, which denied his cross motion to dismiss the petition, granted the petition, and permanently stayed the arbitration.

Ordered that the order is reversed, on the law, without costs or disbursements, the cross motion is granted, the petition is denied, and the proceeding is dismissed.

The appellant, Rajeev Singh, claimed injuries as a result of an accident on August 4, 2001, caused by an allegedly uninsured vehicle that stopped short and then drove off following the accident. On March 8, 2002, Singh’s attorney sent to his insurer, the petitioner, Nationwide Insurance Company (hereinafter Nationwide), by certified mail, return receipt requested, a letter enclosing an application for no-fault insurance benefits and a notice “with respect to uninsured [*2]and/or underinsured motorist benefits.” This notice to which the letter referred was captioned “Notice of Intention to Make Claim and Arbitrate.” It contained a statement pursuant to CPLR 7503 (c) that Singh “intends to demand arbitration” and that Nationwide would be precluded from raising the objection, inter alia, that a valid agreement had not been made or complied with unless Nationwide applied to stay arbitration within 20 days after receipt of the notice.

The letter was sent to Nationwide at its North Syracuse office, and its receipt is undisputed. On March 18, 2002, Robert Marino from Nationwide’s Woodbury Claims Department sent a letter of disclaimer, inter alia, because the insured had failed to notify Nationwide of his claim as soon as practicable.

By a document dated June 12, 2002, Singh notified Nationwide that he was demanding arbitration before the American Arbitration Association (hereinafter the AAA) and that “unless the time to apply for a stay of arbitration has already expired” he repeated the preclusion warning authorized by CPLR 7503 (c) would apply. This document was served on Nationwide at its Woodbury office by certified mail, return receipt requested. Within 20 days of its receipt of this demand for arbitration, Nationwide commenced this proceeding to stay arbitration on the ground, inter alia, that Singh’s notification of his claim was untimely.

Singh cross-moved to dismiss on the ground that the proceeding itself was not timely commenced. He relied on his notice of intention to arbitrate transmitted by his attorney’s letter dated March 8, 2002, by certified mail, return receipt requested. In opposition, Nationwide’s counsel argued in an affirmation that the notice of intention to arbitrate was not a formal demand to arbitrate against which a proceeding to stay would be required. Counsel further made passing mention that the notice of intention to arbitrate had been served on Nationwide in North Syracuse and that the demand for arbitration was served on Robert Marino in the Woodbury Claims Department, who was handling the uninsured motorist benefit claim.

The Supreme Court granted the petition to stay arbitration, holding that the proceeding was timely. It held that the notice of intention to arbitrate in its timing and circumstances was intended to mislead. Thus, the 20-day preclusion was measured from the later demand for arbitration. This was error.

The basis on which Nationwide sought to justify the timeliness of its application was that a notice of intention to arbitrate is not a demand for arbitration and that the 20-day preclusion of CPLR 7503 (c) applies only to the demand. However, CPLR 7503 (c) provides: “A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate [containing the 20-day preclusion warning].” (Emphasis added.) Thus, the preclusion applies identically to a demand for arbitration and a notice of intention to arbitrate (see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7503:6). Indeed, the notice of intention has been characterized, as Singh’s lawyer did in his March 8, 2002, letter, as simply a “Notice” by Professor David D. Siegel in New York Practice (Siegel, NY Prac § 593, at 1002 [3d ed). Also, the seminal case on the preclusive effect of CPLR 7503 (c), Matter of Jonathan Logan, Inc. (Stillwater Worsted Mills) (31 AD2d 208 [1968], affd 24 NY2d 898 [1969]), arose not from a demand for arbitration but from a notice of intention to arbitrate. [*3]

It is true, as Nationwide contends, that service intended to conceal a notice of intention to arbitrate and to precipitate an insurer’s default will not be given preclusive effect when the notice is buried among unrelated documents or is served on a remote office of the insurer (see Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 296 [1974] [notice for arbitration before AAA not served on attorneys representing the defendant in action in which the defendant had moved to compel arbitration before NYSE, but was served on an office different from the one on which the summons commencing the action had been served; notice contained misleading statements suggesting that the plaintiff was joining in the defendants’ motion to compel arbitration before the NYSE]; Matter of Insinga v Liberty Mut. Ins. Co., 265 AD2d 411, 412 [1999] [notice, served on respondent, not its attorneys, was hidden among voluminous other documents to prevent respondent from contesting arbitrability]; Matter of Balboa Ins. Co. v Barnes, 123 AD2d 691 [1986] [demand for arbitration enclosed in the middle of a packet of 11 documents mailed to the insurer’s home office in California despite a prior request that future correspondence be sent to the New York office]; Rider Ins. Co. v Marino, 84 AD2d 832 [1981] [demand mailed to insurer at address unrelated to the business at hand and placed amidst a packet of documents submitted in support of the claim with a covering letter adumbrating reference to the demand]). Yet, these cases were not decided in a vacuum. The issue of misleading tactics had to be raised by the petitioners who tardily sought to stay arbitration, and had to be supported by someone with knowledge of the facts on the basis of which they contended that they had been misled.

In the case at hand, Nationwide never claimed to have been misled; this came only from the Supreme Court. Furthermore, no affidavit by a Nationwide claims employee was submitted that would support the conclusion that Nationwide was misled. This Court confronted just such a situation in Matter of State-Wide Ins. Co. v Rowe (228 AD2d 606 [1996]). There, the tardy motion to stay arbitration (sought by way of a notice of intention to arbitrate) was rejected by the court on the one ground originally asserted in the petition (see Matter of Steck, 88 NY2d 827 [1996]). It was not until State-Wide Insurance Company moved for renewal that it raised the claim of a defective and misleading notice of intention to arbitrate. In Rowe, at least the contention was supported with an affidavit of the claims department manager. This Court affirmed the rejection of this new ground articulated in the renewal motion since the argument and facts were known at the time of the original petition.

The Rowe case compels us to reverse the grant of a stay of arbitration of Singh’s uninsured motorist claim. Nationwide never made the claim, interposed in the Rowe case only on renewal, that its time to move to stay arbitration was defeated by trickery. Nor does it seem that it could support such a claim. Singh’s attorney did not bury the notice of intention to arbitrate among a sheaf of other documents. He only transmitted one other document with it, namely an application for no-fault benefits. Furthermore, this was transmitted, quite understandably, to Nationwide’s North Syracuse office because that is the location of its no-fault division. The record demonstrates that this location had no adverse effect on Nationwide’s ability to respond with alacrity and to move to stay arbitration within 20 days because Nationwide, in fact, sent a disclaimer letter dated a mere 10 days later from its Woodbury office.

Accordingly, the Supreme Court erred in denying Singh’s cross motion to dismiss and in granting Nationwide’s untimely petition to stay arbitration since the evidence does not support the conclusion that Nationwide was misled into filing an untimely petition, and Nationwide itself never raised this issue. Santucci, J.P., Adams, Crane and Cozier, JJ., concur.

Civil Court Of The City Of New York, Queens County

Index No. 81843/02

For Plaintiff: Alden Banniettis, Esq. 2972 Avenue X, Brooklyn, NY

11235

For Defendant: Jacobson & Schwartz, Esqs, 510 Merrick Rd., POB 46,

Rockville Centre, NY 11571

Denis J. Butler, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this motion for summary judgment:

Papers Numbered

Notice of Motion and Affidavits/Affirmations Annexed________1_________

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action to recover No-Fault benefits, plaintiff moves for summary judgment against defendant. Plaintiff submitted two timely and proper NF-3 claim forms on April 19, 2002 which were received by the defendant on April 29, 2002 and May 6, 2002. The plaintiff also submitted timely claim forms on April 24, 2002 and June 5, 2002, which insurer received on May 2, 2002 and June 10, 2002, respectively. Defendant issued denials for each of the aforementioned claims on June 27, 2002 and has failed to make payments on any of the bills.

Plaintiff contends that all of defendant’s denials were untimely except for the denial for the bill received on June 10, 2002. Plaintiff further argues that the denials are insufficient to raise a triable issue of fact since they are improperly based upon what the defendant labels a “Low Impact Study.”

Defendant does not dispute the timeliness of the denials, but argues that the injuries did not arise from a covered accident. Defendant contends that the accident at issue was a “Low Impact” accident and could not have caused the injuries alleged by the assignor. Defendant relies upon a report prepared by a private consultant retained by defendant which concludes that the speed of the assignor’s vehicle was “not sufficient to cause persistent injury to volunteer test [*2]subjects.” Defendant concludes that since the injuries allegedly sustained by the assignor could not have been caused by this accident, plaintiff’s claim is fraudulent and therefore did not arise from a covered accident. Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195. (despite an untimely denial, an insurer is not barred from raising as a defense that the “services rendered to treat the injuries at issue did not arise from a covered accident.”)

It is the holding of this court that the plaintiff’s motion for summary judgment is granted. Defendant submitted inadmissible reports and improperly denied plaintiff’s bills based upon a “Low Impact Study.” The case law is clear that in order to deny a claim on the theory that a particular accident was not a covered event the insurer must show that the accident was a deliberate event or a part of an insurance fraud scheme. As the evidence submitted by the defendant fails to establish that the accident was a deliberate event or part of an insurance fraud scheme the defendant’s claim that the accident was not a covered event is without merit.

The defendant, in its affirmation in opposition, merely relies on an affidavit by its claims adjuster dated January 21, 2004, wherein such adjuster asserts that the claims were timely denied based upon the “Low Impact Study” conducted by FTI/SEA Consulting. The affidavit fails to state whether the adjuster had actual knowledge of the “Low Impact Study”, whether she is an accident reconstruction expert or how she came to the conclusion that the injuries could not be related to the motor vehicle accident at issue. A.B. Medical Services PLL v. Lumbermans Mutual Casualty, N.Y.L.J September 30, 2003. (insurer cannot negate the careful proscriptions for expert proof in Central General Hospital in favor of mere speculation and debate).

Further, it is well established “that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 NY2D 557. The defendant submitted an unsworn to Accident Analysis Report. An unsworn report on which the defendant relied is not in admissible form and as such is not sufficient to defeat a motion for summary judgment. Washington v. City of Yonkers, 293 A.D.2d 741. Therefore, the defendant has failed to submit sufficient proof which would allow this court to determine whether the accident caused the alleged injuries.

Moreover, the basis for each of the insurer’s denials were that the results from a “Low Impact Study” had shown that the injuries alleged in the claim forms were not related to the motor vehicle accident in question and were inconsistent with a collision of that nature. The insurer posits that an accident at this speed could not have caused the alleged injuries and that therefore the claim is fraudulent and not covered.

Defendant relies upon the theory that if a collision was a deliberate event caused in the furtherance of an insurance fraud scheme, it would not be a covered accident. Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 A.D.2d 751; see also Westchester Medical Center v. Travelers Property Cas. Ins. Co., 309 A.D.2d 927. However, the defendant has failed to come forth with evidence that the accident was a deliberate event or a part of an insurance fraud scheme. Rather the defendant erroneously relies upon an inadmissible report which states that the injuries were caused by an accident which was “not sufficient to cause persistent injury to volunteer test subjects.” The report, even if admissible, fails to establish that the accident was a [*3]deliberate event caused in the furtherance of an insurance fraud scheme.

The No-Fault Law requires the carrier to either pay or deny the claim for No-Fault benefits within thirty days from the date the applicant supplies proof of claim. (Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). The bills received prior to June 10, 2002 were denied after thirty days. Without a valid “coverage” defense the court grants the plaintiff summary judgment as to each of those bills . Only the bill received by the insurer on June 10, 2002 was timely denied. As to the bill which was timely denied, the defendant has failed to submit sufficient proof in admissible form which would allow this court to determine whether the accident in question could cause the alleged injuries. An affidavit by a claims adjuster regarding the validity of a “Low Impact Study” and an unsworn report are insufficient to oppose a motion for summary judgment.

Accordingly, plaintiff’s motion for summary judgment is granted. The plaintiff is given leave to enter judgment against the defendant in the sum of $7,562.00 plus statutory attorneys’ fees and interest.

Judge, Civil Court

Decision Date: April 02, 2004

District Court Of Nassau County, Third District,

INDEX NO. 003594/03

Steven M. Jaeger, J.

Plaintiff’s motion for summary judgment and defendant’s cross-motion to compel discovery are decided as follows:

The plaintiff, a health care provider and assignee of no-fault benefits, commenced this action against the defendant, the insurer of the assignor, to recover the first party No Fault Law benefits. In this case, the patient/assignor was injured in a motor vehicle accident on July 19, 2002. Plaintiff submitted the claim on the appropriate forms to defendant on September 9, 2002. Defendant’s denial was dated December 2, 2002.

The defendant’s failure to deny the plaintiff’s claim for no-fault benefits within thirty (30) days of receipt of the proof of claim, and the amount of loss sustained as required by Insurance Law 5106, and 11 NYCRR 65.15[g][3], precludes the defendant from asserting an affirmative defense of denial of benefits on various grounds. Presbyterian Hosp. v. Maryland Cas. Co., 90 NY2d 274 [1997]. Defendant’s late denial form designates assignor’s (Abbott) failure to appear for independent medical examinations on October 25, 2002 and November 8, 2002 as the basis for the claim denial. The first IME was not scheduled until more than 30 days after the claim was received.

In response to this application and in support of defendant’s cross-motion for summary judgment, defendant contends that the insured owner/operator of the car may have possibly staged this as a fraudulent accident with assignor Abbott as a passenger. Defendant further contends that assignor Abbott’s failure to appear for two scheduled independent medical examinations (as stated on defendant’s denial form) was based on indicia of fraud and was for “Examination under Oath”. The latter examination was not requested until December 10, 2002 and the denial forms provided by each party differs as to riders attached.

Defendant’s position appears to be that, (1) the claim denial, despite its express language, is in fact based on fraud and, (2) a claim arising from an insurance fraud scheme is not a covered accident and therefore, the late denial of same would not necessarily be fatal to defendant’s defense. Metro Med. Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 (2d Dept 2002). Defendant’s fraud claim or defense is only substantiated by the unsworn reports of investigators that examined the subrogor’s signatures on forms ostensibly signed after each treatment. The [*2]conclusion is that the treatment forms were signed all at once or in groups. No evidentiary proof was provided, however, in opposition to the motion for summary judgment. The Court also notes that the denial of claim form (NF-10) provided by defendant (and dated March 10, 2003) differs from the one provided by plaintiff (dated December 2, 2002) in that each contains materially different riders. No explanation for this is offered by the defendant. Nor does the defendant explain how alleged fraud in providing medical services constitutes a “non-covered” accident under the applicable no-fault statutes and regulations.

In this case, the defendant notified the plaintiff on or about December 2, 2002 that it was denying benefits based upon a failure to attend IMEs. Pursuant to State Farm v Domotor, 266 AD 2d 219 (2d Dept 1999), the Court finds that this denial excused the plaintiff from further compliance with any further requests or demands from the defendant. “An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of its policy. Rather, the insurance carrier ‘must stand or fall upon the defense upon which it based its refusals to pay’.” 266 AD 2d at 220.

Accordingly, the plaintiff has met their burden in demonstrating a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. Notwithstanding defendant’s late investigations, defendant has not shown the existence of evidentiary facts sufficient to toll the statutory limits for denials of claims. An insurer is required to either pay or deny a claim for medical services rendered under No-Fault within 30 days from receipt of proof of the claim (e.g., the bill), which proof shall include verification (IME) requested by the insurer pursuant to 11 NYCRR §65-3.5, Insurance Law §5106(a); 11 NYCRR §65-3.8(a). This 30 day period may be extended by an insurer’s timely request for further verification of the claim. New York Presbyterian Hospital v. American Transit Insurance Company, 287 AD2d 699, (2d Dept 2001). There is no documentation of timely requests by defendant.

Plaintiff’s motion for summary judgment is granted in the amount of $1,758.40, plus interest at 2% per month from October 9, 2002, together with attorneys’ fees of 20% thereof, not to exceed $850.00. 11 NYCRR §65(17)((b).

Defendant’s cross-motion for an order of preclusion regarding discovery is denied as moot in view of the aforementioned decision.

So Ordered:

Dated: March 29, 2004 District Court Judge

Decision Date: March 29, 2004

—In an action to recover no-fault medical payments under certain insurance contracts, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated March 5, 2003, which denied their motion for leave to reargue that branch of their prior motion which was for summary judgment on the first cause of action to recover no-fault benefits for the treatment of Adrienne Corn, which was denied by prior order of the same court dated December 10, 2002.

Ordered that the appeal is dismissed, with costs.

We reject the appellant’s contention that the instant appeal was taken from an order denying a motion for leave to renew. The order appealed from decided a motion which the appellant itself denominated as one for leave to reargue that branch of its prior motion which was for summary judgment on the first cause of action. Further, the thrust of the appellant’s motion was that the Supreme Court purportedly overlooked controlling law in making its prior order. In addition, the appellant neither submitted new facts not offered on the prior motion, nor demonstrated a change in the law, that would change the prior determination (see CPLR 2221 [e] [2]). Accordingly, the motion was one for leave to reargue, the denial of which is not appealable (see Gutierrez v Rockefeller Group, 307 AD2d 335 [2003]; Lapadula v Sang Shing Kwok, 304 AD2d 798 [2003]; Kisswani v Manikis, 303 AD2d 643, 644 [2003]; Misirlakis v East Coast Entertainment Props., 303 AD2d 389 [2003]). Ritter, J.P., H. Miller, Crane and Cozier, JJ., concur.

—

In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals from so much of a judgment of the Supreme Court, Nassau County (Skelos, J.), dated April 7, 2003, which, upon granting those branches of the plaintiffs’ motion which were for summary judgment on their first, fourth, fifth, and seventh causes of action, is in favor of the plaintiff Mary Immaculate Hospital, as assignee of Lucretia Hall and Sosamma Johnkutty, and against it in the total sum of $124,035.43, in favor of the plaintiff New York United Hospital, as assignee of Jean A. Cudilio, and against it in the total sum of $6,633.33, and in favor of the plaintiff White Plains Hospital, as assignee of Rashid Chugstai, and against it in the total sum of $116.14.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the defendant’s contention, the plaintiff hospitals made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; St. Luke’s Roosevelt Hosp. v American Tr. Ins. Co., 1 AD3d 498 [2003]; St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743 [2003]; New York & Presbyt. Hosp. v Allstate Ins. Co., 295 AD2d 412 [2002]; see also Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]). Furthermore, the defendant’s submissions in opposition were insufficient to raise an issue of fact as to whether it timely issued a partial denial of the claim asserted by the plaintiff Mary Immaculate Hospital, as assignee of Lucretia Hall, or paid the claim asserted by the plaintiff New York United Hospital, as assignee of Jean A. Cudilio. Santucci, J.P., Krausman, Luciano and Townes, JJ., concur.

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 (M. Solomon, J.), dated October 10, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted for the principal sum of $1,018.47 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. Plaintiff’s moving papers established a prima facie case for summary

SM-1

In opposition to plaintiff’s motion, defendant submitted only a portion of an unsworn letter from its medical expert which as submitted did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary. Accordingly, plaintiff’s motion should be granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 (b) (6); see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).

SM-2

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, Queens County (P. Kelly, J.), entered October 23, 2002, denying its motion for partial summary judgment in the sum of $6,418.48.

Order unanimously affirmed without costs.

In this action to recover $11,251.62 in assigned first-party no-fault benefits, the court below denied plaintiff’s motion for partial summary judgment on $6,418.48 of its
claims. Plaintiff appeals that order to the extent that it denied $3,897.20 in benefits for
treatment rendered prior to December 28, 2001, conceding, in its brief, that a file-based
peer review and the results of an independent medical examination, conducted December 27, 2001 and December 28, 2001 respectively, created triable issues of fact whether prior diagnostic tests and all subsequent tests and treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In our view, the court properly denied summary judgment.

A no-fault benefits claimant establishes its prima facie case for summary judgment by “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), via the statutory [*2]claim forms (11 NYCRR 65.15 [b] [4]) or their functional equivalent (11 NYCRR 65.15 [d] [5); Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant timely denied the claim (11 NYCRR 65.15 [g] [3]) on the ground that certain of plaintiff’s treatments were medically unnecessary (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]) based on peer reviews which, in our view, set forth a sufficient factual foundation and medical rationale for the claims’ rejection (Amaze Med.
Supply Inc. v Eagle Ins. Co., supra). With respect to the acupuncture claims, assignor’s
apparent denial that he received such treatment, as recorded in the medical examination report, created a triable issue whether the claim based thereon was appropriate.
Accordingly, the matter is remanded to the court below for all further proceedings on the claims.

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 on April 9, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,685.31 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff instituted suit to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted complete proofs of claims to defendant which defendant did not pay or deny within 30 days (11 NYCRR 65.15 [g]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term,
2d & 11th Jud Dists]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274, 285 [1997]), the insurer is precluded from raising defenses such as lack of medical necessity (see Mingmen Acupuncture v Liberty Mutual, NYLJ, Apr. 10, 2002 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff was entitled to summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

The matter is accordingly remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a];
11 NYCRR 65.15 [h]; 65.17 [b] [6]; St.Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]). [*2]
Decision Date: March 26, 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 (M. Solomon, J.), dated October 10, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted for the principal sum of $1,018.47 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. Plaintiff’s moving papers established a prima facie case for summary

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In opposition to plaintiff’s motion, defendant submitted only a portion of an unsworn letter from its medical expert which as submitted did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary. Accordingly, plaintiff’s motion should be granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 (b) (6); see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).

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