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.), dated November 27, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $795 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff’s motion for summary judgment should have been granted.
The Insurance Regulation in effect in 2001, when the medical supplies were provided, was section 65.15 (d) (3) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath (EUO) until the following year, when the new regulation became effective on April 5, 2002 (11 NYCRR 65-3.5 [e]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]), and, thus, defendant’s EUO demands did not toll the 30-day period in which an insurer must act upon a claim or be precluded from most defenses (Insurance Law § 5106 [a]; Central Gen Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Since there was no requirement that plaintiff’s assignor appear for an examination under oath as requested by defendant, plaintiff is entitled to summary judgment.

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 65.17 [b] [6]; 65.15 [*2][h] [1]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: March 04, 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 (B. Bayne, J.), entered February 27, 2003, as denied its cross motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical equipment provided to plaintiff’s assignors, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court denied both motions, holding, inter alia, that the supporting affidavit submitted in support of plaintiff’s cross motion was defective because it contained legal arguments notwithstanding that the affiant was not an attorney. This appeal by plaintiff ensued.

Although it is well settled that “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” (Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [1]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 75, CPLR C2214:21), the mere inclusion of two case citations within a footnote did not render the entire affidavit defective. Rather, inasmuch as the affidavit contained facts of which the affiant had personal knowledge, it was necessary to assess the merits of plaintiff’s cross motion.

Plaintiff’s cross motion sufficed to establish a prima facie cause of action (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and shifted to defendant the burden to demonstrate the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The affirmation by defendant’s counsel failed to allege that she had personal knowledge either that defendant timely mailed its requests for independent medical examinations to plaintiffs assignors or of facts sufficient to establish the [*2]presumption of mailing, i.e., an account of defendant’ s standard office procedures to ensure that requests for independent medical examinations are mailed (cf. S & M Supply, Inc. v Geico Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]). In the absence of a sufficient showing that the 30-day statutory period had been tolled, under the circumstances presented, the defendant is precluded from interposing its defenses (Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Thus, plaintiffs cross motion for summary judgment in the principal sum of $2,425 should have been granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Decision Date: March 03, 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 (K. Rothenberg, J.), entered November 4, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiffs motion for summary judgment granted in the principal sum of $517 and matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $517 in first-party no-fault benefits for health services it provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant did not pay or deny its claim within 30 days as required by Insurance Law § 5106 (a). Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment, by showing that it submitted a completed claim to defendant (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), which defendant acknowledged receiving on February 2, 2001 and denied by letter of March 21, 2001.

The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant, however, did not meet this burden since it failed to establish by competent evidence that it timely sent a verification request thereby tolling the commencement of the 30-day period in which to deny or pay the claim (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Plaintiff did not admit to receiving said requests. Contrary to the determination of the court below, we find that the claim examiner’s affidavit raises no triable issue of fact as to whether a request was timely sent to plaintiff since she did not state that she had personal knowledge that a request was mailed to plaintiff (see Rue v Stokes, 191 AD2d 245 [1993]), and she did not create a presumption of [*2]mailing by describing the standard operating procedures defendant used to ensure that its requests are properly mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, plaintiffs motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereto.
Decision Date: February 26, 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 (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Recovery of no-fault benefits requires a proper proof of claim, i.e. the completed statutory form (11 NYCRR 65-3.3 [d]) or its functional equivalent (11 NYCRR 65-3.5 [a], [f]; S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]; cf. Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]), and an insured’s proof of a properly submitted claim generally suffices to establish its prima facie case in summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Here, however, plaintiffs inclusion of additional documents for the first time upon its motion for summary judgment, namely, a physician’s prescription for medical equipment, which did not match the equipment for which benefits were sought, and a receipt for medical equipment delivered to an insured other than its assignor, raised a triable factual issue, whether certain of the no-fault benefits sought were for equipment that was not part of the prescribed course of treatment or for equipment other than what the patient actually received (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).
Decision Date: February 26, 2004

[*1]

Argued January 13, 2004; decided February 19, 2004

Allstate Ins. Co. v Stein, 305 AD2d 972, affirmed.

{**1 NY3d at 417} OPINION OF THE COURT

R.S. Smith, J.

This appeal concerns the timeliness of an action by an insurance company as subrogee of an accident victim to whom the insurance company has paid additional personal injury protection (APIP) benefits. The question presented is whether the statute of limitations runs from the date of the accident or the date when {**1 NY3d at 418}the first APIP benefits were paid. We hold [*2]that the statute runs from the date of the accident, and that the insurer’s action is therefore time-barred.

Factual Background

On May 24, 1995, a vehicle operated by Daniel Stein struck a vehicle being operated by Amy Walker and injured her. New York’s No-Fault Law required that Walker have insurance coverage providing “[f]irst party benefits” consisting of reimbursement, to the extent specified by statute, for “[b]asic economic loss” (health expenses, loss of earnings, and other reasonable and necessary expenses) (Insurance Law § 5102 [a], [b]; § 5103 [a]). As the term “no-fault” implies, these first party benefits were payable to Walker regardless of who was at fault, and neither Walker nor her insurer could recover them from Stein (Insurance Law § 5104 [a]).

As authorized by New York Insurance Department Regulations (11 NYCRR) § 65-1.3 (though not required by statute), Walker had also purchased an APIP endorsement from Allstate Insurance Company covering her for “extended economic loss”—i.e., economic loss exceeding the time and dollar limits of the “basic economic loss” that is subject to mandatory no-fault coverage. Recovery of “extended economic loss” from third parties is not restricted by the no-fault statute.

On August 2, 1996, Walker began an action against Stein in Supreme Court, alleging that she had sustained a serious injury, which would permit her to recover noneconomic loss without violating the no-fault statute (Insurance Law § 5104 [a]), and also seeking to recover economic loss other than her basic economic loss. Thus, Walker sought to recover from Stein the same “extended economic loss” that was covered by the APIP endorsement in her Allstate policy.

By June 29, 1998, Walker’s basic no-fault coverage had evidently been exhausted, and Allstate made its first payment of APIP benefits to Walker. Allstate alleges that by May of 2001 it had paid more than $42,000 to Walker in APIP benefits. By making those payments, Allstate became subrogated to a portion of Walker’s claim against Stein.

On February 20, 2001, counsel for the parties in Walker’s action against Stein appeared, along with counsel for Allstate, at a conference before Supreme Court. Walker’s counsel stated that Walker and Stein had agreed on a $300,000 settlement of the action. Counsel for Stein stated that the release Stein expected to {**1 NY3d at 419}get from Walker “cuts off any rights that Allstate would have against either Mr. Stein or [Stein’s insurance carrier]” and requested a “clarification . . . to that effect” from Allstate’s counsel. Allstate’s counsel, without commenting directly on the request for clarification, stated that Walker “has been made aware of the possible subrogation claim in the amount of 43 thousand dollars . . . and that she understands that in entering into this release.” Counsel for Walker added his own “clarification” stating that Walker is “giving a general release to the defendant [and] . . . is reserving whatever rights or obligations or defenses she or her husband may have to any party to this proceeding, including Allstate Insurance Company, and I’m not conceding on the record that there’s a right of subrogation or anything else.”

Thus, it seems that the three parties represented at the conference had three different, and inconsistent, understandings of the settlement: Stein understood that he was getting a complete release, good against both Walker and Allstate; Allstate understood that it was preserving what it called a “subrogation claim,” though its counsel’s statement may be read as implying a claim against Walker for part of the $300,000, rather than against Stein for some [*3]additional amount; and Walker apparently understood that she would keep the whole $300,000, and did not recognize that Allstate was entitled to anything. Walker’s counsel added that “[W]e’re all going to let the law . . . determine what rights and obligations, if any, anyone has,” and the court echoed this comment: “[I]t’s clear on the record that all three parties are saying that they intend to fully enforce their rights to the full extent of the law and defenses that they might have.”

On February 23, 2001, Walker’s counsel delivered to Stein’s counsel an unqualified general release in Stein’s favor, executed by Walker and her husband, but not by Allstate. Stein resisted paying Walker the full $300,000 in return for this release. He paid Walker $200,000, and sought to require Walker and Allstate to resolve the allocation of the remaining $100,000 between themselves: first, Stein offered a $100,000 draft payable to both Walker and Allstate; he later began an interpleader action. Walker rejected the $100,000 draft and caused a judgment in the amount of $100,000 to be entered against Stein. Stein moved to vacate the judgment.

Despite its counsel’s comments at the settlement hearing, Allstate apparently made no effort to recover from Walker any portion{**1 NY3d at 420} of the $300,000 settlement. However, on May 4, 2001 Allstate, “as Subrogee of Amy M. Walker,” began its own action against Stein. This action, the third to be brought (after Walker’s original lawsuit and Stein’s interpleader action), is the one whose timeliness is now in issue. Allstate’s complaint alleged that Walker had been injured through Stein’s negligence; that as a result of those injuries, she had suffered losses for which Allstate paid her compensation in the form of APIP benefits; that Allstate had become Walker’s subrogee under the terms of its policy and the applicable insurance regulations; and that Allstate was therefore entitled to recover from Stein the APIP benefits it had paid. Stein moved to dismiss Allstate’s action based on, among other grounds, the statute of limitations.

Supreme Court resolved the three-cornered dispute by allowing Walker’s judgment against Stein to stand, dismissing Stein’s interpleader complaint and denying Stein’s motion to dismiss Allstate’s action. Stein appealed to the Appellate Division, which, by a three-two vote, reversed the denial of Stein’s motion to dismiss, holding that Allstate’s claim was barred by the statute of limitations. Allstate appeals as of right (CPLR 5601 [a]).

Discussion

Stein contends that Allstate, as Walker’s subrogee, stands in Walker’s shoes and was therefore required to bring suit by May 24, 1998, three years after the date of Walker’s accident, and almost three years before Allstate in fact sued.^[FN1] Allstate contends that, by making APIP payments to Walker, it acquired a new cause of action against Stein on June 29, 1998 and was permitted to sue until three years after that date.^[FN2]

In deciding the issue in Stein’s favor, the Appellate Division majority analyzed the question, we think correctly, as follows: [*4]

“Allstate’s subrogation action is governed by the same statute of limitations applicable to action No. 1, the personal injury action commenced by the Walkers against Stein. That is consistent with the principles that a subrogation claim is derivative of the {**1 NY3d at 421}underlying claim and that the subrogee possesses only such rights as the subrogor possessed, with no enlargement or diminution. It is likewise consistent with the principle that a defendant in a subrogation action has against the subrogee all defenses that he would have against the subrogor, including the same statute of limitations defense that could have been asserted against the subrogor” (305 AD2d 972, 974 [2003] [citations omitted]).

Allstate does not dispute that the above quotation correctly states the law applicable to subrogation generally. It contends, however, that the right asserted by Allstate in this case is not an ordinary subrogation right, but a creature of statute (as implemented by Insurance Department regulation), and that this case is therefore analogous to Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996] [MVAIC]) and Aetna Life & Cas. Co. v Nelson (67 NY2d 169 [1986]).

MVAIC concerned the right of the Motor Vehicle Accident Indemnification Corporation (MVAIC) to recover from the insurer of a vehicle no-fault benefits that MVAIC had paid after the vehicle’s insurer denied coverage. In that case, the defendant insurer claimed that MVAIC’s right was “in the nature of subrogation” and that MVAIC thus had no greater rights than its insured and was subject to the same statute of limitations (MVAIC, 89 NY2d at 220). This Court held otherwise, stating that MVAIC’s entitlement to reimbursement was “created or imposed by statute, but for which [it] would not exist” (id. at 221).

The MVAIC court relied on Aetna Life & Cas. Co. v Nelson, which concerned the attempt of a no-fault insurer to enforce a statutory lien pursuant to Insurance Law § 673 (2) (now § 5104 [b]). Noting that the statute of limitations contained in CPLR 214 (2) “only governs liabilities which would not exist but for a statute” (67 NY2d at 174), this Court in Aetna held that the liability there at issue was in that category. We stated that the statute creating that liability

“does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of automobile accidents” (id. at 175 [citation omitted]).{**1 NY3d at 422}

This case is different from MVAIC and Aetna because it involves a traditional equitable subrogation, not a liability created by statute. Indeed, no statute even refers to APIP benefits, much less a subrogation claim by an APIP carrier against a tortfeasor. Allstate relies not on a statute but on an Insurance Department regulation, 11 NYCRR 65-1.3, which sets forth a form of APIP endorsement which is “approved and promulgated” by the Department of Insurance (§ 65-1.3 [a]). The APIP endorsement approved by the Department includes a subrogation clause, as follows: [*5]

“In the event of any payment for extended economic loss, the Company is subrogated to the extent of such payments to the rights of the person to whom, or for whose benefit, such payments were made. Such person must execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing to prejudice such rights.”

The regulation, however, does not create a new right which did not exist at common law, but merely prescribes the form of a clause that declares Allstate’s pre-existing right. On the facts of this case, Allstate would have a right of subrogation against Stein if there were no applicable regulation, and indeed even if there were no explicit subrogation clause in the insurance policy. Subrogation is a venerable equitable doctrine, not a recent invention of the Insurance Department. Almost 80 years ago, our Court explained the doctrine of subrogation as follows:

“It is so well settled as not to require discussion that an insurer who pays claims against the insured for damages caused by the default or wrongdoing of a third party is entitled to be subrogated to the rights which the insured would have had against such third party for its default or wrongdoing. This right of subrogation is based upon principles of equity and natural justice. We recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages . . .” (Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 47 [1925]; see also Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, {**1 NY3d at 423}44 [2d Dept 1983] [quoting, in the context of an APIP carrier’s subrogation rights, the statement in Kozlowski v Briggs Leasing Corp., 96 Misc 2d 337, 342 (Sup Ct, Kings County 1978): “subrogation is equitable in nature, not dependent on contract”]).

Allstate protests that, if the statute of limitations on its subrogation claim runs from the date of the accident, the claim may be time-barred before the right of subrogation exists, so that the subrogee would never have an opportunity to bring suit on the claim. But this sort of risk is inherent in subrogation; the subrogee acquires only the rights that the subrogor had, and so any subrogee may find its claim defeated by a defense based on the subrogor’s action or inaction. In such a case, the subrogee’s remedy is against the subrogor, for conduct that has prejudiced the subrogee’s right. The APIP endorsement quoted above specifically provides that the subrogor shall “do nothing to prejudice” the insurer’s rights of subrogation. This provision too is merely declaratory of longstanding equitable principles (see e.g. Ocean, 240 NY at 47).

As the Appellate Division majority pointed out, Allstate’s plight here results from its own failure “to insist on the resolution of its subrogation claim against the tortfeasor for APIP payments as part of a global settlement of the personal injury claims” (305 AD2d at 975). Nothing required Allstate to acquiesce, as it did, in a settlement between Walker and Stein in which all the consideration went to Walker and none to Allstate. Allstate was, by virtue of [*6]subrogation, entitled to the portion of Walker’s recovery that is allocable to her claim for “extended economic loss.” At the February 20, 2001 conference Allstate’s counsel seemed to recognize this, stating to the court that “the plaintiff has been made aware of the possible subrogation claim in the amount of 43 thousand dollars.” But Allstate never followed up the implied threat to recover its $43,000 from the settlement proceeds that Walker received, choosing instead to bring a time-barred action against Stein.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

Order affirmed, with costs.

Footnotes

Footnote 1: CPLR 214 (5) imposes a three-year statute of limitations for most personal injury actions.

Footnote 2: Allstate relies on CPLR 214 (2), providing a three-year limitation period for “an action to recover upon a liability, penalty or forfeiture created or imposed by statute.”

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 insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for entry of judgment in the principal sum of $410, the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny the claim within 30 days of receipt of the proof of claim, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]).

A review of the record indicates that plaintiff established its entitlement to summary judgment prima facie by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s sole ground both for its denial of plaintiff’s claim and opposing summary judgment was the assignor’s failure to appear for an examination under oath. However, the insurance regulations in effect when the claim was submitted, contained no provision requiring the injured person to submit to such an examination (see A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [*2][e], eff. April 5, 2002), an omission that cannot be remedied by reference to a policy provision requiring an insured’s “cooperation” with defendant’s investigation of a claim in the form of such an examination (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]). As defendant interposed no other proper defense to the claim, either pursuant to its claim denial or in opposition to the motion, summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (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]).
Decision Date: February 18, 2004

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, New York County, entered January 25, 2002 (Debra A. James, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered January 25, 2002 (Debra A. James, J.) modified to grant plaintiff’s motion for summary judgment on its no-fault insurance claim relating to the April 24, 2000 medical services rendered to its assignor, Smolyanskiy, and to remit the matter to Civil Court for the assessment of appropriate attorney’s fees and interest with respect thereto; as modified, order affirmed, without costs.

The action seeks recovery of motor vehicle no-fault benefits in the form of medical expenses allegedly incurred by plaintiff’s assignors. Plaintiff demonstrated entitlement to summary judgment on its claim for neurological testing administered to its assignor, Smolyanskiy, on April 24, 2000, since the record shows that defendant received plaintiff’s no-fault claim relating to those services no later than June 23, 2000, and did not deny the claim until [*2]July 31, 2000. Having failed to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8[c]) within 30 days of receipt, defendant waived any defenses relating to the adequacy of plaintiff’s claim forms, including the alleged absence of necessary signatures (see, Mount Sinai Hosp. v Figuerdov, 263 AD2d 11, 17 [1999]) or the medical necessity of the services rendered (see, Central Gen. Hosp. v Chubb Group, 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 306, lv denied 93 NY2d 809 [1999]).

Summary judgment is unwarranted, however, on the remaining no-fault claims alleged in the complaint. Contrary to plaintiff’s contention, the peer review reports relied upon by defendant in timely denying the remaining claims were a proper vehicle to assert the defense of lack of medical necessity (11 NYCRR 65-3.8[b][4]) and set forth sufficient facts to raise a triable issue with respect to that defense (see, S+M Supply, Inc. v Allstate Ins. Co., 2003 WL 21960336, decided July 9, 2003 [App Term, 2d Dept]).

This constitutes the decision and order of the court.

[*1]

Civil Court of the City of New York, Kings County, February 11, 2004

APPEARANCES OF COUNSEL

Baker & Barshay, LLP, Hauppage (Joaquin Lopez of counsel), for plaintiff. Peter C. Merani, New York City (Samuel Kamara of counsel), for defendant.

{**3 Misc 3d at 246} OPINION OF THE COURT

Ellen Gesmer, J.

{**3 Misc 3d at 247}Plaintiff Behavioral Diagnostics brings this action to obtain payment from defendant Allstate for services rendered by plaintiff to three of its patients, Marina Shaulov, Dwayne Dowdell and Maria Arevalo.^[FN*] All three patients are insured by defendant Allstate under New York State No-Fault Insurance Law § 5101 et seq., and all three assigned their insurance benefits to plaintiff. The court conducted a full trial of this matter on January 26, 2004 and makes the following findings.

Facts and Procedural History

Plaintiff’s assignors were all in motor vehicle accidents. They each received medical treatment from plaintiff Behavioral Diagnostics. The parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by the regulations of the Insurance Department (11 NYCRR 65-2.4), to Allstate; that plaintiff was the assignee of the three patients; and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8. For each of the three patients, plaintiff sought payment from defendant for $194.57 for a diagnostic interview; $67.24 for “record evaluation”; $975.10 for seven hours of psychological testing; and $103.31 for “Interpretation/Explanation of Results.”

Allstate paid for the psychiatric interview for each patient, but denied payment of the other services based on its determination that they were not “medically necessary” as provided by 11 NYCRR 65-3.8 (b) (4).

Since the parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by 11 NYCRR 65-2.4, that plaintiff was the assignee of the three patients, and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8, plaintiff met its burden of proving its claim (see Amaze Med. Supply Inc. v [*2]Eagle Ins. Co., 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002]).

Consequently, the only issue to be determined at trial was whether the services rendered were medically necessary, as defined by Insurance Law § 5102 (a) (1). While there had been some uncertainty in the courts as to whether plaintiff bore the burden of showing medical necessity, or whether it was the defendant’s {**3 Misc 3d at 248}burden to show lack of medical necessity, it is now clear in this judicial district that the burden rests on defendant to prove that the services rendered were not medically necessary (Choicenet Chiropractic P.C. v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists 2003]; A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003]).

In support of its case, defendant presented the testimony of Dr. Michael Rosenfeld, who had conducted a peer review of the records of Ms. Shaulov, and Dr. Yakov Burstein, who had conducted peer reviews of Mr. Dowdell and Ms. Arevalo. Both Dr. Rosenfeld and Dr. Burstein are licensed psychologists with many years of experience in the field, and were qualified by the court to give expert testimony. Both Dr. Rosenfeld and Dr. Burstein testified that the diagnostic interviews were medically necessary. Dr. Burstein did not state any opinion as to the medical necessity for the record evaluation of Ms. Arevalo’s file. Both doctors testified with a reasonable degree of medical certainty that all of the other services rendered by plaintiff to the three patients were not medically necessary.

In rebuttal, plaintiff presented the testimony of Dr. Dimara Maksa, who has worked for plaintiff since June 2003, and became a co-owner of plaintiff in January 2004. The court qualified Dr. Maksa to render expert testimony. Dr. Maksa testified that all of the services rendered were medically necessary.

The Absence of a Definition of “Medical Necessity”

The No-Fault Insurance Law provides no definition for medical necessity. Rather, it states that claimants are entitled to recover for “basic economic loss,” which includes:

“(1) 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, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical 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; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses {**3 Misc 3d at 249}may be incurred as a result of the injury. 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 regulations, which set out the mandatory provisions for approved policies under the act, provide no additional guidance, and merely repeat the language [*3]of the statute (11 NYCRR 65.12 [e] [2]).

There is no appellate case law as yet on the subject. The increasing litigation on the issue confirms the comment of one court that it is not a “simple” issue (Albatros Med. v Government Empls. Ins. Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). The determination of the issue turns on credibility (General Psychiatric Evaluation & Care v Kemper Ins. Co., 1 Misc 3d 499 [Civ Ct, Queens County 2003]), since courts cannot rely solely on the examining physician (Oceanside Med. Healthcare v Progressive Ins., 2002 NY Slip Op 50188[U] [Civ Ct, Kings County 2002]; cf. Tudor v Metropolitan Life Ins. Co., 143 Misc 2d 180 [Nassau Dist Ct 1989]), but must consider whether the treatment had a “valid medical purpose” and resulted in an “actual medical benefit” (Sunrise Med. Imaging, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40091[U], *4 [Nassau Dist Ct 2001]).

Courts have taken care that their attempts to fashion a definition of “medical necessity” are consistent with the dual (and potentially contradictory) goals of the No-Fault Insurance Law of providing full compensation to motor vehicle accident victims who suffered “serious injury,” while simultaneously containing costs (Oceanside Med. Healthcare, P.C. v Progressive Ins., 2002 NY Slip Op 50188[U] [Civ Ct, Kings County 2002], citing Oberly v Bangs Ambulance, 96 NY2d 295 [2001], and Licari v Elliott, 57 NY2d 230 [1982]). The Oceanside court noted with approval the definition adopted by the New Jersey Supreme Court in Thermographic Diagnostics, Inc. v Allstate Ins. Co. (125 NJ 491, 512, 593 A2d 768, 780 [1991]):

“a necessary medical expense under the Act is one incurred for a treatment, procedure, or service ordered by a qualified physician based on the physician’s objectively reasonable belief that it will further the patient’s diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value {**3 Misc 3d at 250}must be verified by credible and reliable evidence. That standard, in our view, is consistent with the reparation objectives of the Act in that it would allow reimbursement for innovative medical procedures warranted by the circumstances that have demonstrable medical value but have not yet attained general acceptance by a majority of the relevant medical community.”

That definition was also discussed with approval in Elm Med., P.C. v American Home Assur. Co. (2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]), and Medical Expertise v Trumbull Ins. Co. (196 Misc 2d 389, 395 [Civ Ct, Queens County 2003]). In Medical Expertise (at 395), Judge Siegal used the New Jersey definition to establish the following standard for determining the medical necessity of psychological tests: “could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances.” In Fifth Ave. Pain Control Ctr. v Allstate Ins. Co. (196 Misc 2d 801, 807-808 [Civ Ct, Queens County 2003]), Judge Agate, after considering the dictionary definitions and the text of a bill pending in the Legislature, formulated the following definition of medical necessity:

“treatment or services which are appropriate, suitable, proper and conducive to the end sought by the professional health service in consultation with the patient. It means more [*4]than merely convenient or useful treatment or services, but treatment or services that are reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluating and treating the patient.” (Id. at 807; internal quotation marks omitted.)

Consistent with this, Judge Agate went on to hold that “for treatment or services to be medically necessary, it must be reasonably determined by the health care professional in consultation with the patient, that the treatment or services are consistent with the patient’s condition, circumstances and best interest of the patient with regard to the type of treatment or services rendered, the amount of treatment or services rendered, and the duration of the treatment or services rendered.” (Id. [internal quotation marks omitted].)

Against this background, the court turns to the specific services at issue in this case.{**3 Misc 3d at 251}

Medical Necessity of Psychological Testing

Dr. Rosenfeld testified that, as a general matter, it is not medically necessary to conduct psychological tests at the intake stage unless the psychologist conducting the intake interview could not establish a diagnosis based on the clinical interview alone. In this case, Dr. Rosenfeld stated that the clinical interview of Ms. Shaulov had provided an adequate basis for formulating a diagnosis so it was not medically necessary to perform psychological tests. Dr. Rosenfeld further commented critically that the tests which were administered to Ms. Shaulov were self-reporting tests which essentially duplicated the clinical interview. He explained that, in those circumstances where a diagnosis could not be formulated based on the clinical interview alone, it would be most appropriate to perform psychological tests which were complementary to the interview, such as projective tests, rather than self-reporting tests.

Dr. Burstein testified similarly that it is generally not medically necessary to perform psychological tests when intake interviews are conducted, but that it may be appropriate to do so under certain circumstances. However, he testified that it was not medically necessary to perform psychological testing of either Mr. Dowdell or Ms. Arevalo because their mental status exams and intake interviews provided an adequate basis for planning their treatment.

Dr. Maksa, who became licensed as a psychologist in New York State in December 2003, has had no experience in clinical practice. She testified that she “felt” that it was necessary to conduct psychological testing for every patient. She based this on a study which she claimed showed that psychological testing is valid and that clinical interviews sometimes lead to erroneous diagnoses. She did not state any of her opinions with a reasonable degree of psychological certainty. Moreover, she did not cite any basis for her claim that it was necessary to perform psychological testing in every case in order to formulate a treatment plan, regardless of the content of the intake interview.

Essentially, plaintiff took the position that the standard of care requires that psychiatric testing be performed on every patient at the time of intake, regardless of the particular circumstances presented by the patient. In the context of the psychological tests at issue in this case, this court holds that psychological tests are medically necessary if either (1) they are within the standard of care for good and accepted medical practice for all patients in that circumstance, or (2) the treating physician {**3 Misc 3d at 252}made a reasoned and reasonable judgment, based on the particular [*5]circumstances of the patient, that the tests will assist the physician in formulating an accurate diagnosis and an appropriate treatment plan for the patient.

In order to apply this standard to these facts, the court must first assess the credibility of the doctors. The testimony of Dr. Rosenfeld and Dr. Burstein was credible, relevant and probative. Dr. Maksa, as the co-owner of the plaintiff, has an interest in the outcome of the action. In evaluating her testimony, I also considered that she has no clinical experience, and had been licensed for only one month at the time of trial. Accordingly, I do not credit her testimony that the standard of care required that psychological testing be performed on every patient at the time of intake. Moreover, Dr. Maksa did not successfully rebut the testimony of Dr. Rosenfeld and Dr. Burstein that the intake interviews of the three patients provided an ample basis for the formulation of a diagnosis and the establishment of a treatment plan. Indeed, Dr. Maksa demonstrated little familiarity with the records of the specific patients. She did not testify that the intake interviews created any uncertainty as to the diagnosis of the patients, nor did she testify that any of the psychological tests which were administered provided the treating doctors with any new information which affected their diagnoses or treatment plans for the patients. Moreover, while she testified that the Beck’s Anxiety Test may bring out different information than that elicited in a clinical exam, the plaintiff’s own claim forms indicate that the Beck’s Anxiety Scale was not administered to the patients in this case. Accordingly, the court holds that the psychological tests administered by the plaintiff were not medically necessary.

Medical Necessity of Record Review

Dr. Rosenfeld testified that since a psychologist should review records as an integral part of the diagnostic interview, it was not appropriate to bill for record evaluation as a separate item for Ms. Shaulov. Dr. Burstein testified similarly, with respect to Mr. Dowdell, that it was not necessary to examine medical records because the file did not list any medical records. Dr. Burstein did not testify as to the medical necessity of reviewing the medical records of Ms. Arevalo. Dr. Maksa did not rebut defendant’s showing that the record evaluations for Ms. Shaulov and Mr. Dowdell were not medically necessary. Indeed, when questioned about it, she responded, “What records?” Accordingly, the court finds that the record reviews were not medically necessary.{**3 Misc 3d at 253}

Medical Necessity of Explanation of Results

With regard to the billing for “Interpretation/Explanation of Results,” Dr. Rosenfeld testified that, ordinarily, psychologists will advise the patient of any findings as part of the initial consultation. Therefore, he testified that it would only be appropriate to bill separately for explaining results if the psychologist consulted with other family members, which would be appropriate, for example, if the patient were a minor. Dr. Rosenfeld noted that there was no documentation of any meetings with other family members. Similarly, Dr. Burstein interpreted the billing for “Interpretation/Explanation of Results” to mean that there had been a consultation with the patient’s family, but he noted that there was no entry in the files of either Mr. Dowdell or Ms. Arevalo that such a meeting had occurred. He also stated that family consultations are appropriate where the family’s cooperation with the treatment is essential, but the treatment plans in these cases did not require participation by the patients’ families. [*6]

In response, Dr. Maksa claimed that the billing for “Interpretation/Explanation of Results” reflected a charge for sending a letter to the patients regarding the results of the psychological tests. However, she did not introduce the alleged letters. Accordingly, I find that the “Interpretation/Explanation of Results” was not medically necessary.

Conclusion

Because defendant failed to proffer any testimony that the record evaluation of the file of Ms. Arevalo was not medically necessary, the court must find that it was medically necessary. The court holds that the remainder of the services billed by plaintiff were not medically necessary. Therefore, judgment should be entered in favor of the plaintiff in the amount of $67.24, together with statutory interest and attorneys’ fees, pursuant to 11 NYCRR 65.15 (h) and (i) and 65.17 (b) (6) (iii) and (v).

Footnotes

Footnote *: In its complaint, plaintiff sought payments on behalf of five of its patients, but stipulated at trial that it had settled its claims as to assignors La’lsha Hillian and Nino Palagashvili.

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, Queens County (A. Gazzara, J.), entered March 27, 2002, denying their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,559.39, 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; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical treatment provided their assignor, plaintiffs moved for summary judgment. Defendant opposed and submitted nurses’ unsworn reviews of the files which concluded that the treatments were medically unnecessary. Defendant contends that said reviews sufficed to create a triable issue of medical necessity. Plaintiffs rejected the proof as inadequate. In our view, the medical reviews failed to create a triable issue of material fact as to the treatment’s medical necessity.

As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v Moore, 299 AD2d 949, 951 [2002]) whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v Proper, 270 AD2d 816, 817 [2000], affd 95 NY2d 597 [2001]; People v Russell, 165 AD2d 327, 332 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]). Even were we to find that based on [*2]their “formal training or long observation and actual experience” the reviewers were qualified to state an expert opinion on the relevant issues (People v Monroe, 307 AD2d 588, 591 [2003]), the nurses’ affidavits failed to set forth an account of their training or observations and experience sufficient to establish the admissibility of the medical opinions set forth therein. In any event, none of the reviews were sworn, and for this reason also, they “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]).

As to defendant’s remaining defense, that the benefits sought exceeded those permitted by Workers’ Compensation schedules (Insurance Law § 5108 [a]), we have held that by virtue of a timely claims denial an insurer is entitled to interpose the defense in opposition to a claimant’s motion for summary judgment (Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]; see Insurance Law § 5108 [c] [“(n)o provider of health services . . . may demand or request any payment in addition to the (authorized) charges”]; Goldberg v Corcoran, 153 AD2d 113, 119 [1989]; e.g. Murali v Upton, 175 Misc 2d 186, 187 [Civ Ct, NY County (1997)] [section 5108 (c) bars any no-fault claim exceeding “the legally permissible fee”]). Nevertheless, defendant failed to establish that any of the charges exceeded that permitted by law by evidentiary proof sufficient to create a triable issue of material fact.

Finally, summary judgment was properly denied as to the $54.74 claim. Plaintiffs did not allege the date defendant received the claim forms and failed to rebut defendant’s documentary proof that both its initial and follow-up verification requests, dated February 22, 2001 and March 24, 2001, were timely (11 NYCRR 65.15 [d] [1], [2]). Absent the requested verification, an insurer is under no obligation to act on a claim (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]), and without proof of their compliance with the verification requests, plaintiffs failed to prove prima facie a proper claim for no-fault benefits.

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 $2,559.39, the portion of the claim for which summary judgment is granted (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.
Decision Date: February 10, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (K. Yellen, J.), entered November 22, 2002, as denied their motion for summary judgment. Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $16,461.40 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.

In this action to recover $19,425.89 in first-party no-fault benefits for medical treatment provided their assignor, plaintiffs sustained their burden to prove entitlement to no-fault benefits prima facie by submitting proof of the completed statutory forms setting forth “the fact and amount of loss” (Insurance Law § 5105 [a]; e.g. S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]), without the necessity of additional proof that the fact or extent of the treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Defendant’s failure to timely deny the claims (11 NYCRR 65.15 [g] [3]) waived objections based on the facial sufficiency of the claim forms (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]) and most defenses as to the propriety of the claim itself (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Defendant’s attempt to toll the commencement of the 30-day claim [*2]determination period by recourse to an examination of the assignor under oath failed because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (see 11 NYCRR 65.15 [d] [3]; 65.2 [a]; 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002). Defendant cannot base the right to such an examination in 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]; e.g. Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

While objections based on allegedly fraudulent accident claims survive an insurer’s failure to timely deny such claims (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), in opposition to the summary judgment motion, defendant failed to allege facts, in admissible form and with the requisite particularity, to create triable issues of fraud (cf CPLR 3016 [b]); Small v Loriulard Tobacco Co., 94 NY2d 43, 57 [1999]; Matter of State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 490-491 [2003]); Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]). Insofar as defendant based its opposition to summary judgment on the claim that the extent of the treatment was medically unnecessary, as noted previously, defendant is precluded from interposing the defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

However, plaintiff A. B. Medical Services PLLC failed to prove submission of the completed statutory forms as to its physical therapy claim for $464.80. Absent either an allegation in plaintiffs’ affidavit as to whether the claim forms were mailed, or proof of when defendant received the claims via, e.g., defendant’s claim determination forms, the prima facie case also failed as to plaintiff Daniel Kim’s Acupuncture P.C.’s claim for $270.00; plaintiff A.B. Medical Services PLLC’s claims for $71.06 (October 25, 2000), $895.80, $532.42 (July 28, 2000), $249.96, and $76.06; and plaintiff D.A.V. Chiropractic P.C.’s claim for $404.40 (November 6, 2000).

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 $16,461.40, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 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 claims.
Decision Date: February 10, 2004