SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In
opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures, so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

[*1]

Argued October 11, 2007; decided November 20, 2007

Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532, affirmed.

{**9 NY3d at 316} OPINION OF THE COURT

Graffeo, J.

In this action, a hospital seeks to recover no-fault insurance benefits for services rendered to a patient injured in a motor vehicle accident. We conclude that the insurance company’s failure to timely request verification of the patient’s assignment of benefits to the [*2]hospital precludes the carrier from now contesting the validity of the assignment. We therefore affirm the order of the Appellate Division so holding.

Plaintiff New York and Presbyterian Hospital treated patient Browne in 2004 for injuries he sustained as a result of an automobile accident. At the time of the accident, Browne had an automobile insurance policy with defendant Travelers Property Casualty Insurance Company affording him first-party no-fault coverage. In October 2004, the hospital, through its contract billing agent—Hospital Receivables Systems, Inc.—sought payment of $24,344.96 from Travelers for services provided to Browne. The billing agent sent Travelers a hospital facility form (NYS Form NF-5), a UB-92 form and an assignment of benefits form (NYS Form NF-AOB). The assignment portion of the NYS Form NF-5 and the assignment of benefits form both indicated that Browne’s signature was “on file,” but neither form displayed his actual signature.

Travelers did not reject the forms or request verification of the assignment. After Travelers failed to pay or deny the claim within 30 days of its receipt, the hospital commenced this action against Travelers and Farmington Casualty Company (an affiliated carrier) for payment of its bill as well as statutory interest and attorneys’ fees under Insurance Law § 5106 (a).^[FN1] In its answer, Travelers raised as an affirmative defense the lack of a valid assignment between Browne and the hospital.

Both parties moved for summary judgment and Supreme Court granted the hospital’s motion and directed entry of judgment{**9 NY3d at 317} against Travelers in the amount of $24,344.96 plus statutory interest and attorneys’ fees. The court held that Travelers’ failure to timely contest any deficiency in the assignment documents precluded the carrier from raising the issue in this proceeding. The Appellate Division affirmed and we granted Travelers leave to appeal.

New York’s no-fault automobile insurance system is designed “to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). In furtherance of these goals, the Superintendent of Insurance has adopted regulations implementing the No-Fault Law (Insurance Law art 51), including circumscribed time frames for claim procedures. [*3]

These regulations require an accident victim to submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident (see 11 NYCRR 65-1.1, 65-2.4 [b]). Next, the injured party or the assignee (typically a hospital, as in the case here) must submit proof of claim for medical treatment no later than 45 days after services are rendered (see 11 NYCRR 65-1.1, 65-2.4 [c]).^[FN2] Upon receipt of one or more of the prescribed verification forms used to establish proof of claim, such as the NYS Form NF-5, an insurer has 15 business days within which to request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]).^[FN3] An insurer may also request “the original assignment or authorization to pay benefits form to establish proof of claim” within this time frame (11 NYCRR 65-3.11 [c]). Significantly, an insurance company must pay or deny the claim within 30 calendar days after receipt of the proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). If an insurer seeks additional verification, however, the 30-day window is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8 [a] [1]).

An insurer’s failure to pay or deny a claim within 30 days carries substantial consequences. By statute, overdue payments{**9 NY3d at 318} earn monthly interest at a rate of two percent and entitle a claimant to reasonable attorneys’ fees incurred in securing payment of a valid claim (see Insurance Law § 5106 [a]). More importantly, a carrier that fails to deny a claim within the 30-day period is generally precluded from asserting a defense against payment of the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997], rearg denied 90 NY2d 937 [1997]). This Court has recognized a narrow exception to this preclusion remedy for situations where an insurance company raises a defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because “the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed” (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]). [*4]

As a corollary to the Presbyterian preclusion rule, Appellate Division case law consistently holds that a carrier’s failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies (see e.g. Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2d Dept 2007]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728-729 [3d Dept 2006]). We concur and note that an insurer that requests additional verification after the 10- or 15-business-day periods but before the 30-day claim denial window has expired is entitled to verification. In these instances, the 30-day time frame to pay or deny the claim is correspondingly reduced (see 11 NYCRR 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]).

Here, after Travelers obtained the NYS Form NF-5 and the assignment of benefits form—both of which plainly stated that the patient’s signature was “on file”—it did not ask for further verification or request the original assignment, as permitted by the regulations. Travelers also failed to pay or deny the claim within 30 calendar days of receipt of the hospital’s proof of claim. Nevertheless, Travelers argues that its neglect in demanding verification or timely denying coverage is irrelevant because the hospital’s failure to proffer a validly executed assignment equates to a lack of coverage, a defense that is not subject to preclusion under Chubb. We disagree.{**9 NY3d at 319}

In Chubb, the insurer asserted as a defense that the claimant’s injuries arose out of a prior work-related accident rather than a car accident. Alternatively, the carrier refused payment on the ground that the patient’s treatment was excessive. We held that the insurer was not barred from arguing that the injuries were unrelated to the accident because, if true, the treatment would not have been covered by the automobile liability policy in the first instance. On the other hand, we indicated that an excessive treatment defense ordinarily does not implicate a coverage issue, in which situation the preclusion rule applies (90 NY2d at 199).^[FN4]

Here, there is no dispute that the hospital rendered medical services to Browne in the amount of $24,344.96 for injuries arising out of a motor vehicle accident, that Browne’s policy with Travelers was in effect at the time of the accident and that the policy covered the [*5]accident. In our view, any defect or deficiency in the assignment between Browne and the hospital simply does not implicate a lack of coverage warranting exemption from the preclusion rule. We therefore determine that the failure by Travelers to seek verification of the assignment in a timely manner prevents the carrier from litigating the issue now.^[FN5]

To conclude otherwise, as proposed by the dissent, frustrates a core objective of the no-fault regime—”to provide a tightly timed process of claim, disputation and payment” (Presbyterian, 90 NY2d at 281). Upon receipt of a no-fault claim, the regulations shift the burden to the carrier to obtain further verification or deny or pay the claim. When, as here, an insurer does{**9 NY3d at 320} neither, but instead waits to be sued for nonpayment, the carrier should bear the consequences of its nonaction. To allow an insurance company to later challenge a hospital’s standing as an assignee merely encourages the carrier to ignore the prescribed statutory scheme. As we observed in Presbyterian:

“No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits. That is part of the price paid to eliminate the common-law contested lawsuits . . . The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices” (id. at 285 [citation omitted]).

Finally, Travelers contends that an assignment of benefits is a necessary component of the hospital’s prima facie case for recovery of no-fault benefits. Even assuming that this is true, we conclude that an assignment form stating that the patient’s signature is “on file” satisfies that burden where the carrier does not timely take action to verify the existence of a [*6]valid assignment (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2d Dept 2005]). Since Travelers does not otherwise contest the hospital’s entitlement to no-fault payments, the courts below appropriately awarded summary judgment to the hospital. We have considered Travelers’ remaining contentions and find them without merit.

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

Pigott, J. (dissenting). I respectfully dissent. In my view, Travelers should not be precluded from asserting the affirmative defense that plaintiff Hospital lacked standing to sue—i.e., that it did not obtain a valid assignment from the recipient of medical services—even though Travelers did not obtain additional verification or deny the claim within the prescribed time periods set forth in the no-fault insurance regulations.^[FN*]

As explained by the majority, Travelers failed to request additional{**9 NY3d at 321} verification after receiving the Hospital’s claim and assignment of benefits forms, nor did it deny or pay the claim within the required 30-day time period. Nevertheless, after the Hospital commenced this action against Travelers for payment, Travelers asserted an affirmative defense that the Hospital lacked standing to bring the suit on the grounds that it did not obtain a valid assignment of benefits from the patient.

Of course, a plaintiff must have standing in order to bring an action in the courts of this State. “Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991], citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 [1975]). “Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” (Society of Plastics Indus., 77 NY2d at 769). This Court has also recognized that “questions of . . . standing of parties may be characterized as raising questions of subject matter jurisdiction” (Lacks v Lacks, 41 NY2d 71, 74 [1976]; see also City of New York v State of New York, 86 NY2d 286, 292 [1995] [“The issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing”]).

Only where there is a properly executed assignment does an assignee become the “real party in interest” and acquire standing to enforce the rights of an assignor (James McKinney & Son v Lake Placid 1980 Olympic Games, 61 NY2d 836, 838 [1984]). “[T]o effect an assignment . . . there [must] be a perfected transaction between the assignor and assignee, intended by those parties to vest in the assignee a present right in the things [or rights] assigned” (Leon v Martinez, 84 NY2d 83, 88 [1994], citing 4 Corbin, Contracts § 879, at 528 [1951]). Without an assignment from the patient, a medical services provider clearly lacks standing to sue a no-fault insurance carrier to directly collect payment for services it rendered to the patient (see 11 NYCRR 65-3.11 [b] [1], [2] [“(i)n order for a health care provider (or) hospital to receive direct payment from the insurer, the{**9 NY3d at 322} health care provider or hospital must submit to the insurer . . . a properly executed Authorization to Pay Benefits” or “a properly executed assignment” from the injured party]).

As discussed by the majority, in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]), we held that a no-fault insurer was not precluded from raising a defense of lack of coverage despite an untimely disclaimer. In so holding, the Court stated that “[t]he denial of liability based upon lack of coverage within the insurance agreement . . . is distinguishable from disclaimer attempts based on a breach of a policy condition” (id. at 199). The majority here further explains that a carrier is not precluded from asserting a noncoverage defense because “the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed” (majority op at 318, quoting Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]). In my view, a carrier’s defense based on the lack of a valid assignment equates to a defense implicating “lack of coverage within the insurance agreement” (Chubb, 90 NY2d at 199), and thus, should similarly not be precluded. Although there is no dispute that the assignor-patient was covered by the insurance policy with Travelers and received medical treatment at the Hospital, similar to our concerns in Chubb, the policy here does not contemplate [*7]payment to the Hospital in the first instance. Indeed, the Hospital has no legal right to collect payment if and until a valid assignment is obtained from the patient. Thus, in my view, Travelers’ defense challenging the validity of the assignment is akin to a defense premised upon lack of coverage.

Further, contrary to the majority’s position, in my view, standing cannot be artificially created by a carrier’s failure to object within the time periods set forth in the no-fault insurance regulations. Put another way, a medical services provider cannot establish standing by merely relying upon a carrier’s prelitigation inaction. By allowing a plaintiff to do so, the majority, in essence, creates a rule whereby a plaintiff can establish its standing by estoppel, as a result not only of a defendant’s inaction, but by its simple neglect, oversight or clerical error.

I must take issue with the majority’s view that this position would encourage noncompliance with the no-fault statutory and regulatory scheme. If an insurer fails to timely pay a valid claim, it is subject to the payment of interest at 2% per month plus attorneys’ fees (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.9,{**9 NY3d at 323} 65-3.10), which is why these matters are better resolved in an arbitration setting rather than through the courts as has occurred here. Our decision today, in my view, encourages the use of the courts by eliminating an essential element of most lawsuits—standing—and runs the risk of encouraging this type of litigation at the carrier’s peril.

Thus, here, the Hospital should be required to affirmatively prove standing, upon Travelers’ objection, as part of its prima facie case (see TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dept 2006] [holding that the plaintiff was not entitled to summary judgment in an action to collect on a promissory note because “it failed to present competent proof of its standing as an assignee of the note” and defendant challenged “(t)he validity of the assignment of the note to the plaintiff, and the plaintiff’s standing to prosecute (the) action” in its answer]; Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779 [3d Dept 1997] [holding that the plaintiff lacked standing to bring the action where there was no record evidence supporting its contention that it obtained an assignment]). The Hospital could have done so simply by producing proper documentary evidence of the assignment vesting it with the right to collect payment. Because the Hospital failed to do so, it did not establish its entitlement to judgment as a matter of law.

Accordingly, I would reverse the Appellate Division order and deny plaintiff’s motion for summary judgment.

Chief Judge Kaye and Judges Ciparick, Read, Smith and Jones concur with Judge Graffeo; Judge Pigott dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.

Footnotes

Footnote 1: Originally, plaintiff Hospital for Joint Diseases, as the assignee of two other patients, jointly sued Travelers and Farmington for nonpayment of no-fault benefits. Those claims were subsequently withdrawn.

Footnote 2: A hospital may request payment from the insurer by submitting a properly executed authorization to pay benefits or properly executed assignment on one of the prescribed verification forms or an assignment of benefits form (see 11 NYCRR 65-3.11 [b]).

Footnote 3: Where a claimant submits an application for no-fault benefits (NYS Form NF-2) without verification forms, the insurer has 10 business days to forward the “prescribed verification forms it will require prior to payment of the initial claim” (11 NYCRR 65-3.5 [a]).

Footnote 4: As another example, courts have held that an insurance company is not prevented from later denying a claim where the injured party deliberately caused the collision as part of a fraudulent scheme, holding that an intentional crash is not an “accident” covered by the policy (see Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2d Dept 2005]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

Footnote 5: We note that this conclusion is consistent with Appellate Division precedents that have considered similar circumstances (see Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2d Dept 2007]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [3d Dept 2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005], appeal dismissed 8 NY3d 895 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2d Dept 2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005], lv denied 5 NY3d 713 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2d Dept 2004], lv denied 3 NY3d 609 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996], lv dismissed 89 NY2d 1030 [1997]).

Footnote *: As a side note, at least one commentary has noted that the Civil Court of the City of New York and District Courts in Nassau and Suffolk Counties have been inundated with lawsuits filed by medical providers seeking reimbursement of first-party benefits for services rendered to injured claimants. It attributes this “litigation explosion” to two factors: (1) the perception of the medical providers that the American Arbitration Association forum, where medical providers have traditionally filed claims, is biased in favor of the insurer; and (2) decisions of the courts over the past six or seven years which have been favorable to the medical providers (see Lustig and Schatz, Outside Counsel, The End of Litigation Explosion in New York No-Fault, NYLJ, June 21, 2007, at 4, col 4).

[*1]

Argued October 9, 2007; decided November 15, 2007

Raffellini v State Farm Mut. Auto. Ins. Co., 36 AD3d 92, reversed.

{**9 NY3d at 199} OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether a “serious injury” exclusion in a supplementary uninsured/underinsured motorist endorsement to an automobile liability policy is enforceable. We conclude that it is. [*2]

In April 1998, plaintiff Nicholas Raffellini suffered back injuries when his vehicle was struck by a car that had driven through a red traffic light. Plaintiff’s medical expenses and other basic economic loss damages were paid through no-fault insurance. He then pursued recovery for his pain and suffering from the driver of the car that caused the accident. The driver’s insurance carrier agreed to pay plaintiff a settlement of $25,000—the limit of coverage under that policy. Plaintiff’s own insurer, defendant State Farm Mutual Automobile Insurance Company, did not object to the settlement.

After he received the $25,000 settlement payment, plaintiff demanded that State Farm pay him $75,000 in pain and suffering damages under the supplementary uninsured/underinsured motorist (SUM) endorsement, a component of plaintiff’s policy that provided up to $100,000 in coverage. When State Farm refused the demand, plaintiff commenced this breach of contract action. State Farm answered the complaint and asserted, among other defenses, that plaintiff could not recover under the SUM endorsement because he “did not sustain serious injury” and his exclusive remedy was, therefore, the receipt of no-fault benefits.

Plaintiff moved to strike the serious injury defense from State Farm’s answer, claiming that Insurance Law § 3420 (f) (2), which addresses SUM benefits, does not impose serious injury as a condition precedent to recovery. State Farm countered that Insurance Law § 3420 (f) (2) must be read in tandem with Insurance Law § 3420 (f) (1), which contains a serious injury requirement for uninsured motorist benefits. The insurer further submitted that an Insurance Department regulation, Regulation 35-D, requires that SUM recovery be conditioned on a finding of serious injury.

Supreme Court granted plaintiff’s motion to strike State Farm’s serious injury defense on the basis that Insurance Law § 3420 (f) (2) does not reference a serious injury exclusion and Regulation 35-D is inconsistent with the statute. The Appellate Division affirmed and granted State Farm’s motion for leave to{**9 NY3d at 200} appeal to this Court, certifying the question: “Was the opinion and order of this court dated October 24, 2006, properly made?” We answer this question in the negative and reverse the order of the Appellate Division, thereby reinstating State Farm’s serious injury defense.

The controversy concerning application of a serious injury requirement in these circumstances stems from the statutory framework. Insurance Law § 3420 (f) (1) mandates that insurers provide uninsured motorist coverage in every New York motor vehicle liability policy. The payment of mandatory uninsured motorist benefits is conditioned on a finding that the insured suffered a serious injury as defined in Insurance Law § 5102 (d). Section 3420 (f) (1) states: “No payment for non-economic loss shall be made under [*3]such policy provision to a covered person unless such person has incurred a serious injury, as such terms are defined in” the No-Fault Law.

Insurance Law § 3420 (f) (2) (A) addresses additional, optional personal injury coverage that can be purchased by a policyholder: “Any such policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy . . . .” Under this statute, the coverage is not triggered unless “the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (Insurance Law § 3420 [f] [2] [A]). Unlike subsection (f) (1), subsection (f) (2) is silent as to whether an insured must prove serious injury in order to receive supplementary benefits. Plaintiff contends that, by referencing serious injury in subsection (f) (1) and not subsection (f) (2), the Legislature permitted insurers to condition recovery of mandatory uninsured motorist benefits on the existence of a serious injury but intended to preclude them from conditioning recovery of supplementary benefits on such a finding.

Plaintiff’s argument runs contrary to the interpretation of the Superintendent of Insurance expressed in Regulation 35-D, codified at 11 NYCRR subpart 60-2. Regulation 35-D was promulgated in 1992 “to interpret section 3420 (f) (2) of the Insurance Law, in light of ensuing judicial rulings and experience, by establishing a standard form for SUM coverage, in order to eliminate ambiguity, minimize confusion and maximize its utility” (11 NYCRR 60-2.0 [c]). The regulation{**9 NY3d at 201} requires that “[e]very SUM endorsement issued shall be the Supplementary Uninsured/Underinsured Motorists Endorsement prescribed by subdivision (f) of this section” (11 NYCRR 60-2.3 [c]). Subdivision (f) sets forth the precise language insurers are to use in the endorsement, including an “EXCLUSIONS” section which reads: “This SUM coverage does not apply . . . for non-economic loss, resulting from bodily injury to an insured and arising from an accident in New York State, unless the insured has sustained serious injury as defined in Section 5102 (d) of the New York Insurance Law” (11 NYCRR 60-2.3 [f] [EXCLUSIONS] [3]). State Farm asserts that it incorporated the form language in the SUM endorsement it issued to plaintiff, as it was required to do.

It is well settled that the Legislature may authorize an administrative agency “to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 865 [2003], quoting Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]). “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not [*4]inconsistent with the statutory language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]). A duly promulgated regulation that meets these criteria has the force of law.

We have previously recognized that the Legislature has vested the Superintendent of Insurance with “broad power to interpret, clarify, and implement the legislative policy” by promulgating regulations (Medical Socy., 100 NY2d at 863-864, quoting Ostrer v Schenck, 41 NY2d 782, 785 [1977]) and has directed the Superintendent to “prescribe forms” (see Insurance Law § 301 [b]). Thus, in Medical Society, where the Superintendent’s power to adopt regulations imposing strict time requirements on the filing of no-fault claims was challenged, this Court found the regulations valid, even though the No-Fault Law itself is silent on the question of time periods. We noted that the time frames, intended to combat an escalating fraud problem, were consistent with the policy underlying the No-Fault Law—to provide prompt compensation to legitimate claimants. In other contexts, we have relied on the Superintendent’s interpretation of New York insurance law, expressed in Regulation 35-D, as “persuasive authority” (see Matter of Allstate Ins. Co. [Stolarz—{**9 NY3d at 202};New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 224 [1993]) and we have specifically cited Regulation 35-D when identifying the exclusions authorized for uninsured/underinsured motorist benefits (see Matter of Liberty Mut. Ins. Co. [Hogan], 82 NY2d 57, 60 [1993]).

Plaintiff argues that, insofar as Regulation 35-D imposes a serious injury requirement on the recovery of supplementary benefits, it is inconsistent with Insurance Law § 3420 (f) (2) and is therefore unenforceable. There is no question that “if [a] regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980] [citation omitted]). But in this case, the relevant statutory provision and the regulation are not contradictory. Insurance Law § 3420 (f) (2) is silent on the issue of whether an insured can recover SUM benefits absent a serious injury and that silence does not, in this case, imply that the Legislature intended to permit such recovery.

The legislative history of the relevant provisions refutes the argument that, by placing the serious injury exclusion in the mandatory benefits provision but not the supplementary benefits provision, the Legislature intended to preclude the Superintendent from authorizing application of a serious injury exclusion for supplementary benefits. Before uninsured motorist coverage was developed almost 50 years ago, it was not uncommon for a person injured in a motor vehicle accident by an uninsured tortfeasor to be unable to recover any damages. To redress this problem, in 1958 the Legislature created the Motor Vehicle Accident Indemnification Corporation to provide compensation for individuals injured by uninsured motorists, whether or not the injured individuals possessed automobile insurance themselves (L [*5]1958, ch 759; see Matter of Lloyd [Motor Veh. Acc. Indem. Corp.], 23 NY2d 478 [1969]). At the same time, legislation was passed requiring the inclusion of mandatory uninsured motorist coverage in every automobile liability policy issued in New York (L 1958, ch 759, § 4). “The primary objective of this legislation was to afford the innocent victims of uninsured motorists the same protection available to victims of insured motorists with respect to their relative ability to obtain compensation for losses sustained in an automobile accident” (Fox v Atlantic Mut. Ins. Co., 132 AD2d 17, 21 [2d Dept 1987]). The Legislature’s mandatory uninsured motorist coverage provision—the predecessor {**9 NY3d at 203}to Insurance Law § 3420 (f) (1)—was codified at Insurance Law § 167 (2-a).

Mandatory uninsured motorist coverage therefore significantly predated the No-Fault Law, which was not enacted until 1973 (L 1973, ch 13). The No-Fault Law changed the legal landscape by imposing a distinction between basic economic loss (primarily medical expenses and lost wages up to $50,000), which would be covered regardless of fault in an accident, and noneconomic loss (pain and suffering), recoverable only through a personal injury claim against a tortfeasor responsible for the injuries (Insurance Law § 5102 [a], [b], [c]). As to the latter, the No-Fault Law required that injured parties be precluded from pursuing personal injury claims unless they suffered a “serious injury” (Insurance Law § 5104 [a]).^[FN*]

In 1977, the Legislature amended the mandatory uninsured motorist benefits statute—Insurance Law § 167 (2-a)—to clarify that the recovery available under this coverage was not to be diminished by an insurer’s payment of no-fault benefits (L 1977, ch 892, § 3). At the same time, the Legislature added a new paragraph to section 167 (2-a) establishing supplementary uninsured/underinsured motorist coverage. This new paragraph—the predecessor to Insurance Law § 3420 (f) (2)—gave an insured the option of purchasing additional uninsured motorist coverage beyond the mandatory minimum as well as “underinsurance” coverage to guard against the possibility of injury by a tortfeasor who was insured but in an amount insufficient to fully compensate the [*6]injured party. The newly-added second paragraph read as a continuation of the first, providing that “[a]ny such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance . . . .” (L 1977, ch 892, § 3 [emphasis added].) As is the case with mandatory benefits,{**9 NY3d at 204} the purpose of supplementary benefits was “to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident” (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]). Rather than characterizing supplementary benefits as a distinct type of coverage, our Court has viewed underinsured motorist coverage as an extension of uninsured motorist coverage:

“The statutory allowance for supplementary uninsured motorists insurance coverage expands the ‘uninsured motorist’ category to include one who, while maintaining proof of financial responsibility as required by law, and thus being an ‘insured motorist’, nevertheless may be considered an ‘uninsured motorist’ because he is ‘underinsured’ when compared to the coverage of an insured who has exercised the option to purchase supplementary insurance” (Reichel v Government Empls. Ins. Co., 66 NY2d 1000, 1003 [1985]).

The serious injury exclusion at the heart of this dispute was added to the statutory scheme in 1981 (L 1981, ch 435) when mandatory and supplementary benefits were still addressed in adjoining paragraphs of the same subdivision—Insurance Law § 167 (2-a). The Legislature inserted the serious injury language in the first paragraph—the mandatory coverage portion—of that subdivision. But there is no indication in the legislative history of the amendment that the Legislature decided to apply a serious injury exclusion solely to mandatory coverage and not to supplementary benefits. Because both paragraphs of section 167 (2-a) related to uninsured motorist benefits and supplementary coverage was framed as an extension of the mandatory coverage outlined in the first paragraph, the exclusion can reasonably be viewed as having been intended to apply to both categories of benefits. Based on the structure of section 167 (2-a), we cannot say that the Legislature’s failure to restate the serious injury provision in the second paragraph evinced an intent to preclude application of such an exclusion to supplementary benefits.

It was not until 1984, when the Insurance Law was recodified and renumbered in its entirety (L 1984, ch 367), that the two paragraphs were separated into two subsections, resulting in the placement of the serious injury exclusion in Insurance{**9 NY3d at 205} Law § 3420 (f) (1) and not in Insurance Law § 3420 (f) (2). This recodification was not meant to effect a substantive change in the law—certainly, there is no reason to conclude that the Legislature split the two paragraphs into separate subsections to create a distinction between the two types of coverages that did not already exist. Given this legislative evolution, we are unpersuaded that the placement of the serious injury exclusion in Insurance Law § 3420 (f) (1) but not section 3420 (f) (2) reflects a legislative determination to restrict the serious injury exclusion to mandatory benefits. [*7]

Indeed, as the Superintendent apparently concluded, such a distinction would not be consistent with the policy underlying supplementary benefits, which are designed to give insureds the same level of protection that would have been available to others under the policy if the insureds were the tortfeasors who caused personal injuries. When an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met (see Insurance Law § 5104 [a]). Since the purpose of supplementary coverage is to extend to the insured the same level of coverage provided to an injured third party under the policy, the insured must also meet the serious injury requirement before entitlement to supplementary benefits. If this were not the case, the insured would receive coverage more comprehensive than that available to a third party injured by the insured.

It is evident from the facts of this case that the application of the serious injury exclusion is consistent with the policy supporting supplementary benefits. Here, plaintiff received payment for his basic economic loss through no-fault benefits. When he sued the negligent party who caused the collision, he was seeking recovery for noneconomic loss. Having obtained the $25,000 limit of coverage from the negligent driver’s insurer, he then sought additional noneconomic loss damages under the SUM endorsement to his State Farm insurance policy. Since a third party injured as a result of plaintiff’s negligence would have had to demonstrate serious injury to obtain noneconomic loss damages under plaintiff’s policy, it follows that plaintiff himself must prove serious injury to recover under his SUM endorsement—as Regulation 35-D requires. State Farm is therefore entitled to pursue its serious injury defense.{**9 NY3d at 206}

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion to strike defendant’s fifth affirmative defense denied, and the certified question answered in the negative.

Chief Judge Kaye and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

Footnotes

Footnote *:

” ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102 [d]).

—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments, the defendant appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), entered August 23, 2006, which, upon an order of the same court dated August 14, 2006, granting the plaintiff’s motion for summary judgment on the complaint and denying its cross motion for summary judgment dismissing the first cause of action, is in favor of the plaintiff and against it in the principal sum of $13,491.40.

Ordered that the judgment is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, the affidavits from its billers, as well as the certified mail receipts, and the signed return receipt cards which referenced the patients and the forms (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). This evidence demonstrated that the defendant received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact, and in support of its cross motion for summary judgment dismissing the first cause of action, the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. The defendant contended that the claim for payment with respect to the first cause of action was [*2]premature because the plaintiff had failed to respond to its verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). The defendant submitted the affidavit of a supervisor employed in its claims department, which stated, with respect to the first cause of action, that a timely verification request was mailed on August 11, 2005, and a follow-up request was mailed on September 10, 2005. The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 227-228 [1985]). The defendant’s submissions were insufficient to create a presumption that the verification requests were received by the proper party (see Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 568; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Furthermore, the defendant’s failure to timely object to the completeness of the assignment of benefits forms or to seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006 and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]).

We agree with the Supreme Court that the plaintiff’s moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4 (c) (11). Moreover, the “NF-10” denial of claim form was issued within 30 [*2]days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and we need not reach the sufficiency of the defendant’s opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated March 30, 2007, to strike the respondent’s brief on the ground that it raises issues which were not raised before the Supreme Court, Nassau County. By decision and order on motion of this Court dated September 5, 2007, the motion was referred to the bench hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the argument of the appeal, it is

Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, November 6, 2007

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Kim Rasin of counsel), for plaintiff. De Martini & Yi, Williston Park (Dana M. Koos of counsel), for defendant.

{**17 Misc 3d at 950} OPINION OF THE COURT

Genine D. Edwards, J.

{**17 Misc 3d at 951}At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff’s prima facie case was established, the defendant’s denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant’s witness was an expert. The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.; the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with a case with the index number 19685/06, regarding assignor Connie Brady, this court, via correspondence dated August 7, 2007, required the parties to submit posttrial memoranda with respect to plaintiff’s motion in limine regarding the time for scheduling an examination under oath. Plaintiff’s memorandum was due on September 11, 2007 and defendant’s memorandum was due on October 11, 2007. Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff’s motion in limine be denied for failure to comply with this court’s briefing schedule.

The plaintiff orally argues that the defendant’s request for an examination under oath did not toll defendant’s time to pay or deny plaintiff’s claims because the examination under oath was scheduled more than 30 days after receipt of the claim. Plaintiff relies on Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) and S & M Supply v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]). Defendant counters that Regulations § 65-3.5 (d) only relates to medical examinations, while subdivision (e) instructs as to examinations under oath. The defendant argues that subdivision (e) does not direct a date certain or a specific time to schedule the examination under oath; the subdivision only discusses a reasonable time and place for such examination.

After due deliberation of the evidence and arguments asserted, this court finds that the plaintiff’s contentions are correct. Although case law directly on point could not be found, this court must be guided by the legislative intent to resolve no-fault matters expeditiously. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Fair Price Med. Supply [*2]Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term,{**17 Misc 3d at 952} 2d & 11th Jud Dists 2005]; Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [Civ Ct, Queens County 2005].) Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; S & M Supply, supra.)

However, the plaintiff failed to offer any evidence as to when it received the verification forms. Thus, this court cannot determine whether the examinations were scheduled within the requisite time period. Therefore, plaintiff’s motion is denied.

Since the parties stipulated that plaintiff’s prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact. The defendant fails at its burden. There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests. (Mega Supply & Billing, Inc. v AIU Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50687[U] [App Term, 2d & 11th Jud Dists 2007]; Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 144[A], 2007 NY Slip Op 50394[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]; Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists 2005].) Hence, defendant’s time to pay or deny the plaintiff’s claims was never tolled.

Assuming, arguendo, that the defendant met its initial burden of timely mailing, this court finds that the defendant’s expert’s testimony was unpersuasive. Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases. This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822 for each case, as well as statutory interest and attorney’s fees.

Supreme Court, Nassau County

019900/06

F. Dana Winslow, J.

This motion by plaintiff Westchester Medical Center a/a/o Christopher Andrews and Michael Mascolo for an order pursuant to CPLR 3212 granting them summary judgment is granted as provided herein.

This cross-motion by defendants Encompass Insurance Company and Allstate Insurance Company for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is denied.

In this action pursuant to Insurance Law § 5106(a), the plaintiff Westchester Medical Center seeks payment of no-fault medical insurance benefits for services rendered to the individual plaintiffs, Christopher Andrews and Michael Mascolo. Westchester Medical Center has represented that its claim o/b/o plaintiff Michael Mascolo has been settled, however, that has not been established. Westchester Medical Center’s motion for summary judgment with respect to Michael Mascolo’s claim is denied without prejudice to renewal.

In its complaint, Westchester Medical Center alleges that it rendered medical services to Christopher Andrews for injuries related to a June 8, 2005 motor vehicle accident from June 26, 2006 through June 28, 2006; that it billed defendant Encompass Insurance Company for those service in the amount of $11,733.84 via an N-F5 and UB-92 on September 25, 2006, which notice was sent via certified mail, return receipt requested; that Encompass Insurance Company received that claim on September 27, 2006; and, that Encompass Insurance Company has failed to pay or deny that claim.

Westchester Medical Center presently seeks summary judgment pursuant to Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1), as well as attorneys fees pursuant to 11 NYCRR 65-4.6(e).

Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1) provide that first party benefits shall be paid as the loss is incurred and that such benefits are overdue if not paid within 30 days [*2]after proof of fact and the amount of the loss is submitted.

“The plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits [is] overdue.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005) citing Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(3); Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986); Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

In opposition, Encompass Insurance has submitted an affidavit by claims representative Diana Dwyer in which she attests that Westchester Medical Center’s claim for services rendered to Christopher Andrews was denied via a regulatory prescribed form on October 17, 2006 for not having been timely made. Stacey Melton, Senior Print Division Manager at the insurance company’s processing center, details how claims are processed and denied. She states that because the NF-10 and Explanation of Benefits are dated October 17, 2006, office procedure indicates that they were mailed that day, prior to the 30 days in which Encompass was required to act on Andrew’s claim.

The defendant Encompass Insurance has failed to submit a proper affidavit of service to establish that the denial of claim form was in fact mailed to plaintiff. Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 564-565, citing Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 (2nd Dept. 2001).

In any event, “even if the defendant timely issued the denial of claim form within 30 days of its receipt of the plaintiff’s [claim], [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.’ ” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 (NY Sup. App. Term 2004); Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d 664 (2nd Dept. 2004). “A proper denial of claim must include the information called for in the prescribed denial of claim form.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 565, citing NYCRR 65-3.4(c)(11); Nyack Hosp. v State Farm Mut. Auto. Ins. Co., supra, at p. 664.

11 NYCRR 65-3.3(e) provides:

“”When an insurer denial a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.”

This “regulation ameliorates the impact of the severely shortened time periods in which a claimant must submit its notice of claim or proof of claim . . . and while the use of mandatory language, such as must,’ is not conclusive, it is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary intent.” Radiology Today v Citiwide Auto Leasing, Inc., 15 Misc 3d 92, 94 (NY Sup. App. Term 2007), citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 177; Matter of Janus Petroleum v New York State Tax Appeals Tribunal, 180 AD2d 53, 54 (3rd Dept. 1992), quoting People v Schonfeld, 74 NY2d 324, 328 (1989). A defense based on an untimely submission of claim is barred where, like here, there is a lack of proof of [*3]compliance with the notice requirement of 11 NYCRR 65-3.3(e). Radiology Today v Citiwide Auto Leasing, Inc., supra, at p. 94.

Plaintiff Westchester Medical Center is accordingly granted summary judgment in the amount of $11,733.84 as and for its claims asserted o/b/o Christopher Andrews, as well as attorney’s fees.

Submit judgment on notice.

Dated:ENTER:

_________________________________

J.S.C.

[*1]

District Court of Suffolk County, Fourth District, November 1, 2007

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola, for plaintiff. Rivkin, Radler, LLP, Uniondale, for defendant.

{**18 Misc 3d at 797} OPINION OF THE COURT

G. Ann Spelman, J.

{**18 Misc 3d at 798}This action was commenced by plaintiff Custom Orthotics of NY, Inc. as assignee of Francisco J. Ramirez against defendant State Farm Mutual Auto Ins. Co. to recover first-party no-fault benefits. A trial de novo was held on July 16, 2007, and memoranda in support of the parties’ positions were submitted on or before August 6, 2007. The following is the court’s decision.

The ultimate issue to be considered at the trial of this matter was the medical necessity of the services for which compensation is sought. However, the preliminary issue was the ability of plaintiff to establish its prima facie case based solely upon answers given in the notice to admit, with reference to other documents, as no witness was produced. In fact, neither party had a witness available to testify, yet agreed to proceed with the trial. After introducing the notice to admit and other documents, plaintiff rested. Defendant rested a moment later. Plaintiff then moved for judgment in its favor followed by defendant’s motion to dismiss the complaint. Decision was reserved.

Defendant in its answers to plaintiff’s notice to admit admitted that it received the “claims for no-fault benefits” and “bills that are the subject of this action . . . to the extent that same were attached to the Summons and Complaint,” but specifically “reserve[d] the right to object to the validity of same at trial.” Defendant further admitted that it did not pay the claims or bills, but “only to the extent that no payment is due and owing.” In addition, as to plaintiff’s [*2]request for an admission that defendant received an assignment of benefits form for the claims underlying this action, defendant admitted “only that Plaintiff submitted a form that is purported to be an assignment of benefits” but “reserve[d] the right to object to [the] validity [thereof]” at trial.

Also introduced by plaintiff was defendant’s “Arbitration Submission.” Among other things, the arbitration “packet,” as counsel referred to it, contained defendant’s denial of plaintiff’s claims which was based solely upon a lack of medical necessity.

Among other things, defendant argued that the admissions sought to be used were “at the heart of the matter,” i.e., absolutely essential to plaintiff’s right to recovery, and that the facts underlying the admissions were “hotly contested,” thus precluding the use of the notice and its contents at trial. Defendant argued further that permitting plaintiff to proceed in this fashion improperly dispensed with the requirement that{**18 Misc 3d at 799} plaintiff’s witness establish a proper foundation for introduction of the documents necessary to establish its prima facie case.

The court is aware of persuasive authority supporting plaintiff’s position (see Seaside Med., P.C. v General Assur. Co., 16 Misc 3d 758 [Suffolk Dist Ct 2007] [unanswered notice to admit sufficient to establish prima facie case]; see also Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [App Term, 1st Dept 2007] [holding that defendant’s verified answers to interrogatories were formal judicial admissions and therefore sufficient to establish plaintiff’s entitlement to judgment in its favor]).

The case at bar is distinguishable, however, in that defendant answered the notice to admit, admitting the receipt of certain materials, but pointedly reserving its right to challenge the validity of plaintiff’s documentary evidence at trial. Under the circumstances presented, it cannot be said that plaintiff’s ability to establish a prima facie case is not “hotly contested,” as defendant argues. Significantly, no bills or claim forms were attached to the summons and complaint in the court’s file. Rather, what was appended was a computer printout generated by plaintiff.

In addition, recent case law suggests that the formalities surrounding the introduction of business records into evidence must be observed, and that a decision in favor of plaintiff herein would not survive on appeal (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]; Fortune Med., P.C. v Allstate Ins Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Accordingly, plaintiff’s motion for judgment in its favor is denied, and defendant’s motion to dismiss the complaint is granted.