APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered February 16, 2006, which, inter alia, granted plaintiff’s cross motion for summary judgment to the extent of awarding it the principal sum of $587.90.

Per Curiam.

Order (Anil C. Singh, J.), entered February 16, 2006, modified to deny plaintiff’s cross motion for summary judgment in its entirety, and as modified, affirmed, without costs.

Plaintiff seeks to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. Although plaintiff moved for summary judgment on both claims, its motion was granted only to the extent of awarding plaintiff the sum of $587.90 on its claim for services rendered on April 25, 2002. Inasmuch as plaintiff’s submissions were insufficient to establish that it mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations (see 11 NYCRR 65.12[e]), its motion for summary judgment should have been denied in its entirety.

In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted the affidavit of an employee of the entity that oversees the mailing of its billings. The affidavit, dated December 30, 2005, stated that the employee mailed the bill for services rendered on April 26, 2002 on June 3, 2002. Although the affidavit indicated that the affiant personally mailed the bill to defendant, it did not explain the office mailing practice of her employer nor did it state the basis for the affiant’s recollection, three years later, of mailing the bill. Since the affidavit was insufficient to give rise to the presumption of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]), and defendant has alleged that it received plaintiff’s claim outside the prescribed 180-day period, plaintiff’s cross motion for summary judgment on the $587.90 claim should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: October 31, 2007

Civil Court of the City of New York, New York County

74577 CVN 2006

Plaintiff represented by: Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, by Shayna E. Sacks, Esq., 150 Herricks Road, Mineola, NY 11501, Tel: 516-741-4799.

Defendant represented by: Law Offices of Karen C. Dodson, by Jerry Marti, Esq., 485 Lexington Avenue, 7th Floor, New York, NY 10017, Tel: 917-778-6509.

Shlomo S. Hagler, J.

In these two actions to recover first-party no-fault benefits, defendant Travelers Insurance Company (“Travelers” or “defendant”) makes two virtually identical motions for orders pursuant to CPLR § 3212 granting it summary judgment dismissing the complaints. Plaintiff Ray Presutto, L.M.T., P.C. (“Presutto” or “plaintiff”) opposes the motions. Both motions are consolidated herein for disposition.

Background

Miguel A. Villatoro (“Villatoro” or “assignor”) allegedly suffered personal injuries as a result of a motor vehicle accident on September 2, 2002. Villatoro allegedly assigned to Presutto his right to recover benefits from Travelers for health care services rendered to him. Presutto allegedly provided treatment to Villatoro for the periods of May 1, 2003 through May 28, 2003 ($61.60), May 27, 2003 through June 12, 2003 ($61.60), and June 28, 2003 through July 3, 2002 ($61.60).

Presutto allegedly mailed Travelers claim forms or bills in the aggregated amount of $184.80. At Travelers’ request, on January 29, 2003, Dr. Lawrence B. Miller, D.O., a board certified orthopedic surgeon, conducted an Independent Medical Examination (IME”) of Villatoro. Dr. Miller conducted various objective tests on Villatoro and concluded in his affirmed report dated January 29, 2003, that “orthopedic treatment is not indicated or warranted at this time, including physiotherapy or any other type of rehabilitative therapy/treatment. Furthermore, diagnostic testing, [*2]surgical intervention , household help, durable medical equipment or special transportation services are not medically necessary.” (Exhibit “C” to the Motions.) On August 18, 2003, Travelers denied all claims based on Dr. Miller’s IME and report dated January 29, 2003. (Exhibit “D” to the Motions.)

As a result of defendant failing to pay first-part no-fault benefits, plaintiff commenced these two actions by service and filing of a summons and complaint. (Exhibit”A” to the Motions.) Defendant interposed answers to the complaints. (Exhibit “A” to the Motions.)

Summary Judgment

The movant has the initial burden of proving entitlement to summary judgment. Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985). Once such proof has been offered , in order to defend the summary judgment motion, the opposing party must “show facts sufficient to require a trial of any issue of fact.” CPLR § 3212; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 (1970); Friedman v Chemical Construction Corp., 43 NY2d 260, 401 NYS2d 176 (1977); and Spearmon v Times Square Stores Corp., 96 AD2d 552, 465 NYS2d 230 (2d Dept 1983). “It is incumbent upon a [party] who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in [its pleading] are real and are capable of being established upon a trial.” Spearmon v Times Square Stores Corp., 96 AD2d at 553, 465 NYS2d at 232 (quoting DiSabato v Soffes, 9 AD2d 297, 301, 193 NYS2d 184, 189 [1st Dept 1959]). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant’s papers, the movant’s facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne & Nagel, Inc. F. W. Baiden, 36 NY2d 539, 369 NYS2d 667 (1975).

Proof of Mailing

There are three distinct methods to demonstrate proof of mailing. The first and simplest method is to provide an affidavit from an individual with personal knowledge of the actual mailing. The second is where an acknowledgment by the adverse party that it received the subject document serves as an admission. A.B. Medical Services a/a/o German v New York Central Mutual Fire Ins. Co., 3 Misc 3d 136(A), 787 NYS2d 675(Table) (App Term, 2d & 11th Jud Dists 2004); Fair Price Medical Supply Corp. a/a/o Graham v Elrac Inc., 12 Misc 3d 119, 820 NYS2d 679 (App Term, 2d & 11th Jud Dists 2006). The third and most common method is where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed. Pardo v Central Cooperative Insurance Company, 223 AD2d 832, 636 NYS2d 184 (3d Dept 1996). The first and second methods are straight-forward. However, the third method is vexing as there is a dearth of authority that addresses the specific requirements to adequately set forth a standard office practice and procedure.

The courts discuss the sufficiency of proof of mailing in several contexts. These include cancellation notices sent by insurers to insureds, and denials of claims or requests for verification by insurers to healthcare providers. The standard of proof necessary to establish that a proper mailing was executed appears to be the same for each of these circumstances. See, e.g., Contemp. Med. Diag. & Treatment, P.C., a/a/o Boone and Villafane v Government Employees Ins. Co., 6 Misc 3d 137(A), 899 NYS2d 344 (App Term, 2d & 11th Jud Dists 2005) (holding that standard of proof [*3]for mailing of verification requests are the same as for denial of claims, as per Hospital for Joint Diseases v Nationwide Mutual Ins. Co., 284 AD2d 374, 726 NYS2d 443 [2d Dept 2001], and insurance cancellation notices, as per Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 [2d Dept 2001]). “Generally, proof of proper mailing gives rise to a presumption that the item was received by the addressee.” Residential Holding Corp., 286 AD2d at 680, 729 NYS2d at 778. However, “in order for the presumption [of mailing] to arise, office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed.” Nassau Ins. Co. v. Murray, 46 NY2d 828, 830, 414 NYS2d 117, 118 (1978).

To establish proof of mailing, an affidavit should detail standard office policies and procedures regarding the processing of claims and it must also contain a statement of the affiant’s personal knowledge that those policies and procedures have been followed in the instant case. See Contemp. Med. Diag. & Treatment, P.C., a/a/o Boone and Villafane v Government Employees Ins. Co., supra . However, in Delta Diagnostic Radiology, P.C. a/a/o Philogene v Chubb Group of Ins., 17 Misc 3d 16, 18 (App Term 2d & 11th Jud Dists, 2007), the Appellate Term clarified its prior ruling in Contemp. Med. Diag. & Treatment, P.C., supra , as follows:

We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc 3d 137(A), 2005 NY Slip Op. 50254[U], 2005 WL 494360 [App. Term, 2d & 11th Jud. Dists.] should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed (see e.g. New York & Presbyt. Hosp. V. Allstate Ins. Co., 29 AD3d 547, 814 NYS2d, 687 [2006]; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776, supra ; Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 AD2d 374, 726 N.Y.S. 443 [2001]).

(Emphasis Added).

Furthermore, there should be “testimony about office procedures relating to the delivery of mail to the post office, whether a practice existed of comparing the names on the mailing list with the names and addresses on the envelopes for accuracy, or whether anyone routinely checked that the total number of envelopes matched the number of names on the mailing list.” Matter of Lumbermens Mutual Casualty Co. (Collins), 135 AD2d 373, 375, 521 NYS2d 432, 434 (1st Dept 1987). By inference, the affiant should state the following necessary details to show office practice and procedure including: (1) whether anyone complied a list of intended recipients; (2) whether anyone checked that a corresponding envelope containing a verification request or a denial of claim form was properly addressed for each recipient; and (3) whether anyone established a procedure for affixing the appropriate postage and delivering the mail to the post office. The failure to properly allege some of the above details have resulted in courts holding that the showing was insufficient because the affiant’s affidavit was conclusory. New York and Presbyterian Hospital, a/a/o Udland v Allstate Ins. Co., 29 AD3d 547, 814 NYS2d 687 (2d Dept 2006).

While plaintiff challenges the adequacy of the proof of mailings, defendant’s director of [*4]operations at its centralized mail facility located in Norcross, Georgia (“Data Service Center”), Stephen H. Howard, has provided a sufficient description of Travelers’ standard office practice or procedure used to ensure the denials were properly addressed and mailed as detailed below:

7.For the Court’s present purposes, the operation commences when a TRAVELERS employee completes an NF-10 denial, a verification request, or a delay letter from his or her desk top computer terminal, and executes the send and archive option provided. That action will cause the document to be electronically transmitted to the Data Service Center in Norcross. Following that transmission, and on that date, the document is printed. It is then mailed as indicated below.

8.Any document electronically forwarded is batched, printed, and then mailed on the day after it is transmitted. In other words, documents which are electronically transmitted are accumulated, processed and produced in the same out put job. An out put job number is assigned and utilized for tracking purposes, as further described hereafter.

9.Once transmitted, the documents are electronically batched and printed. When the documents are printed, they contain encoded information which identifies the particular batch they were processed in. The documents are electronically counted so that the numbers can be justified against the expected number of documents which are to be contained in any particular batch. When the numbers are reconciled, a notation is made on a tracking sheet for the batch. This tracking sheet is utilized at each stage of the mailing process, further described below, so as to ensure that the mailing, in fact, occurs.

10.Once printed and batched, the documents are placed into a machine designed to fold the documents and insert them into a window envelope where the address of the recipient is shown. The envelope is sealed, completing this part of the process. The machine counts the number of documents and envelopes processed. When the batch has been completed, the actual number is justified against the expected number, and the tracking sheet is documented. The control therefore establishes that all mail in a particular batch has gone through this step in the process. As a further control, a visual inspection is performed to ensure that the address of the recipient appears visible in the envelope window.

11.Once the above step is completed, the batch is brought to another machine. This machine weighs the envelope and places the appropriate amount of postage in accordance with size and weight. This machine also performs an electrical count of the items to be mailed, and the number is justified, against the expected count. The tracking sheet is duly noted for that batch of mail.

12.The mailings in any particular batch are then brought to a sorting machine. The sorting machine separates the individual envelopes in accordance with U.S. Postal guidelines, based upon zip code, for the purposes of facilitating proper and efficient mailings. The pieces going through this aspect of the process are again counted for the purposes of a final justification of the numbers. The sorted and justified mail is then placed into sealed containers and then placed into U.S. Postal Services designated containers. The containers are then delivered to a secure loading [*5]facility where they are picked up by U.S. Postal employees.

13.The final sorting area described above, as well as all other stations, are visually inspected throughout the day to be certain that no mail escaped the vigorous justification processes.

14.The Court is further advised that if at any point during the above described justification processes there is an indication of a missing piece of mail, the process is traced backward until the individual piece of mail is found. In the event a missing piece of mail is not found, an investigation takes place which includes a review of each piece of mail in the entire batch to determine if the particular missing mail can be identified, reprinted, and the batch then processed to completion. In the event identification of the missing piece of mail cannot be made with certainty, the entire batch will be reprinted and reprocessed in accordance with the procedures previously described.

15.Given the above, I can state with a reasonable degree of certainty that the documents described in the accompanying affidavit of Kelly A. Stotz, which had been mailed through the Norcross Data Service Center, were in fact processed in accordance with the procedures described above, and mailed to the identified recipient on the day after the date which appears on the denial and/or delay later.

(Affidavit of Stephen Howard in support of the Motions, sworn to on July 12, 2001, at ¶¶ 7-15).

Medical Necessity

Courts have held that plaintiffs need not demonstrate medical necessity as part of their prima facie case. Dermatossian v New York City Transit Authority, 67 NY2d 219, 224, 501 NYS2d 784, 787 (1986) (“A claimant to receive payment need only file a proof of claim’ . . . and the insurers are obligated to honor it promptly or suffer the statutory penalties . . .”); A.B. Medical Services PPLC a/a/o Sokol v Geico Ins., 2 Misc 3d 26, 27, 773 NYS2d 773, 774 (App Term 2d Dept 2003) (“We have rejected arguments that no-fault benefits claimant is obligated to prove the treatment’s medical necessity, at the claim stage or in support of its motion for summary judgment in a subsequent action on the claim . . .” [citations omitted]). The insurer may raise the defense that a claimed procedure was not medically necessary with a timely denial pursuant to the 30-day rule. Presbyterian Hospital in the City of New York v Maryland Casualty Co., 90 NY2d 274, 282, 660 NYS2d 536, 539-540 (1997). If there is an untimely disclaimer or denial in derogation of the 30-day rule, the insurer’s lack of medical necessity defense is precluded. Id.; Amaze Medical Supply Inc. a/a/o Darlington v Allstate Ins. Co., 2 Misc 3d 134(A), 784 NYS2d 918 (Table) (App Term 2d & 11th Jud Dists 2004).

Furthermore, in support of, or in opposition to, a summary judgment motion or at trial, the defense that the claim was not medically necessary must be supported by sufficient factual evidence or proof and it cannot simply be conclusory. Amaze Medical Supply Inc. a/a/o Bermudez v Eagle Ins. Co., 2 Misc 3d 128(A), 784 NYS2d 918 (Table) (App Term 2d & 11th Jud Dists, December 24, 2003). For instance, a recent Appellate Term decision citing Amaze Medical Supply Inc. a/a/o Bermudez v Eagle Ins. Co., held that where the defendant’s peer review report was sufficient to establish that the services were not medically necessary and the plaintiff failed to come forward with [*6]proof creating an issue of fact requiring a trial, the defendant was entitled to summary judgment dismissing the complaint. Boai Zhong Yi Acupuncture Services, P.C. a/a/o Pistsov v Progressive Casualty Ins. Co., NYLJ, June 6, 2007, p. 30, col. 2 (App Term 2d & 11th Jud Dists). See also Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986).

In this case, Dr. Miller’s orthopedic evaluation and affirmed peer review report on January 29, 2003, based on objective testing, were sufficient to demonstrate that plaintiff’s services rendered to Villatoro were not medically necessary. In response to Dr. Miller’s specifically detailed affirmed peer review report, plaintiff merely submits a terse affidavit from Ray Presutto, a licensed massage therapist, averring that “my office rendered reasonable and necessary medical services to plaintiff’s assignor(s) that were casually related and resulting from said accident.” (Affidavit of Ray Presutto in opposition to the Motions, sworn to on September 18, 2007.) This allegation is conclusory and insufficient as proof in admissible form to create a triable issue of fact requiring a trial as per Boai Zhong Yi Acupuncture Services, P.C. v. Progressive Co., supra .

Conclusion

Both of defendant’s motions for summary judgment dismissing the complaints are granted. The clerk is directed to enter a judgment dismissing both complaints.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.

Dated:New York, New York

October 29, 2007Hon. Shlomo S. Hagler, J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated September 23, 2005, and from a judgment of the same court entered March 31, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered upon the order of September 23, 2005, awarded plaintiff the principal sum of $21,500.

Appeal from order dismissed.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 [*2]NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
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 affirmation by plaintiff, and various documents annexed thereto. The affirmation executed by plaintiff stated in a conclusory manner that the documents attached to his motion papers were his business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff failed to lay a proper foundation for the documents annexed to his moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to his moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff was insufficient to establish that he possessed personal knowledge of his office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to his moving papers, plaintiff failed to make a prima facie showing of his entitlement to summary judgment since he stated that his affirmation was based upon his review of said records (see Dan Med., P.C. v New York
Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In light of the foregoing, we do not address the parties’ remaining contentions. Pesce, P.J., Rios and Belen, JJ., concur.

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

Law Offices of Peter X. Dodge, P.C., Melville, N.Y. (Sean T. Carew and Alex Monroy of counsel), for respondent.

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 11, 2007, as denied that branch of their motion which was for summary judgment on the first cause of action to recover payments for medical services rendered by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen, and, upon searching the record, awarded the defendant summary judgment dismissing the first cause of action.

Ordered that the appeals by the plaintiffs Westchester County Medical Center, as assignee of Iesa Rivera, and Mary Immaculate Hospital, as assignee of Dwayne Cumberbatch, are dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen; and it is further,

Ordered that one bill of costs is awarded to the respondent.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile insurance benefits, insurance companies are required either to pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, the 30-day period in which to pay or deny a claim may be extended where the insurer [*2]makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]), and an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d at 513; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

The plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen (hereinafter the hospital) made a prima facie showing of its entitlement to judgment as a matter of law on the first cause of action to recover payment for medical services by submitting, inter alia, the requisite billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to pay the bill or issue a timely denial of claim form within 30 days (see Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683, 683-684 [2007]; Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]). However, in opposition to the motion, the defendant submitted evidentiary proof that it timely requested additional information from the hospital to verify its claim, and that when the requested information was not received, it made a timely follow-up request. The defendant also offered unrebutted proof that the hospital ignored its verification requests. Since the requested verification was not provided, the 30-day period within which the defendant was obligated to pay or deny the hospital’s claim did not begin to run (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534-535 [2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]), and the first cause of action was premature.

The hospital’s contention that the additional information which the defendant requested to verify its claim was improper or irrelevant is advanced for the first time on appeal, and thus is not properly before this Court (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877 [2006]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 391, 392 [2004]; St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 294 AD2d 425, 426 [2002]; Weber v Jacobs, 289 AD2d 226, 227 [2001]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641, 642 [1995]). Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.

Supreme Court, Nassau County

001943/07

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

Daniel Palmieri, J.

The motion by the plaintiff Westchester Medical Center (“WMC”) pursuant to CPLR 3212 for summary judgment is denied. The cross motion by the defendant Allstate Insurance Company (“Allstate”) pursuant to CPLR 3212 for summary judgment is granted and the complaint is dismissed.

This is an action for payment of no-fault benefits by a provider of medical services, as assignee of the covered person’s claim therefor. It is undisputed that assignor Jose Correa was a patient at plaintiff’s facility from July 28 through August 31, 2006. By way of affidavit of an account representative for the plaintiff, Peter Kattis, and associated documentation, the plaintiff has demonstrated that a billing in the amount of $121,755.40 for this admission was mailed to the defendant on September 14, 2006 and received September 19, 2006. WMC also presents a partial denial of claim form dated October 23, 2006, which is claimed to be untimely and, in addition, defective in that it is incomplete and incorrectly states the amount in dispute. On December 15, 2006 the defendant made a payment of $37,560.01 to Taylor Care Center, leaving an unpaid balance of $84,195.39.

The foregoing constitutes proof sufficient to make out a prima facie showing that the plaintiff is entitled to judgment as a matter of law for the balance stated, with statutory interest and attorneys’ fees, as it establishes that the defendant failed either to pay the hospital bill or to issue a timely denial within 30 days of receipt of the claim. Insurance Law § 5106(a); 11 NYCRR 65-3.8(a)(1); see, Hempstead Gen. Hosp. v Insurance Co. of N.Am., 208 AD2d 501 (2d Dept. 1994). The burden thus shifts to Allstate to demonstrate that issues of fact exist with regard to plaintiff’s right to the relief sought in its complaint. See generally, Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In response, however, the defendant has presented evidence demonstrating that issues of fact exist precluding judgment in plaintiff’s favor. By way of affidavit of a no-fault claims representative [*2]employed by Allstate, Dietra Tripp, and associated documentation, the defendant has met its burden.

On September 29, 2006 a written statement was sent to Taylor Care Center requesting its records regarding Correa’s admission. Tripp states that upon receipt of the records, and within 30 days thereafter, a statement indicating approval of a partial payment and denial of the balance was issued on October 23, 2006. An NF-10 form bearing this date and containing this information is annexed to her affidavit. Although WMC’s presents proof in reply that it voluntarily mailed complete medical records to Allstate, which were received on September 30, 2006 (i.e., the verification request of September 29 was unnecessary and crossed in the mail), this does not mean that the verification request itself was improperly issued, as at the time Allstate did not yet have the records it needed to evaluate the claim. The request for verification therefore tolled the 30-day period to pay or deny the claim until the records were received. 11 NYCRR 65-3.5(a),(b); 65-3.8; see, New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 (2d Dept. 2004). Accordingly, an issue of fact exists as to the timeliness of the denial.

As noted above, WMC’s attorney also claims that the denial itself is defective in that Taylor Care Center is named as the provider, and that the stated amount billed and amount in dispute varies from the plaintiff’s billing claim.

However, in a footnote found in Allstate’s opposing papers the discrepancy is explained as reflecting the initial hospital charges before an apparent audit by the plaintiff itself, which then sought the lower amount stated in its complaint. Further, the difference in facility name has been adequately addressed by Allstate’s proof that WMC and the Taylor Care Center are effectively one and the same for present purposes. Specifically, Tripp states in reply, and presents documentary proof, that the $37,560.01 check was accepted and deposited into the account of Westchester County Health Care Corporation, the same account where WMC’s checks are deposited. In addition, the Court notes that in stating the amount still due, WMC’s affiant acknowledges in his own moving affidavit that this payment reduced the total billed to the amount owed, making no distinction between the two entities.

Accordingly, the motion is denied.

The cross motion is granted. Allstate has presented prima facie proof that its coverage limits have been exhausted. This is supported by the statement of its claims representative, who states that the coverage available under its policy was $150,000, and that the balance sought in this action exceeds those limits. Allstate also presents a payment log document entitled Medical Bill-Loss History, introduced as a business record by Tripp, which indicates that Allstate paid a total $149,909.60 to various providers who cared for Correa, including plaintiff. Given the de minimus difference between the payments indicated in the Medical Bill-Loss history and the undisputed coverage limits, the foregoing constitutes sufficient proof that the defendant is not liable for the charges sought in this action, as they exceed Allstate’s maximum exposure under the policy. New York and Presby. Hosp. v Allstate Ins. Co., 28 AD3d 528 (2d Dept. 2006); see also, Mount Sinai Hosp. v Zurich Am. Ins. Co., 15 AD3d 550 (2d Dept. 2005); Hosp. for Joint Diseases v State Farm Mut. Auto. [*3]Ins. Co., 8 AD3d 533 (2d Dept. 2004); New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra. Indeed, it should be noted that an insurer’s defense that policy limits have been reached by payments to eligible providers cannot be waived by a issuing a denial, or making a part payment, beyond the periods established by the Insurance Law and its allied regulations. New York and Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 (2d Dept. 2004).

In response, the plaintiff has presented no evidence that would place in issue the foregoing proof of exhaustion of benefits as a complete defense to its claim. Its only argument of substance is that payment to other providers was made by Allstate after it received plaintiff’s bill on September 19, 2006, but Allstate was entitled to do so while withholding payment to the plaintiff in view of its timely issued request for verification. See, Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 (2d Dept. 2005). Accordingly, summary judgment is granted to the defendant on its cross motion.

This shall constitute the Decision and Order of this Court

E N T E R

Dated: October 22, 2007

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice

To:

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

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 (Jack M. Battaglia, J.), entered May 25, 2006. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary
judgment. The court below granted plaintiff’s motion to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Turning to the merits of defendant’s cross motion for summary judgment, the court below [*2]correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not sufficiently establish that it mailed the verification requests and follow-up verification requests or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, defendant did not demonstrate that plaintiff’s causes of action were premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, to the extent defendant denied the claims based on fraud, the affidavits submitted by defendant were inadequate to establish as a matter of law “that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

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, Queens County (Joseph Esposito, J.), entered September 22, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross motion for summary judgment was granted. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained
arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 7, 2005. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: October 19, 2007

[*1]

Supreme Court, Appellate Term, First Department, October 17, 2007

APPEARANCES OF COUNSEL

Votto, Cassata & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

{**17 Misc 3d at 98} OPINION OF THE COURT

Per Curiam.

Order, dated February 6, 2006, affirmed, with $10 costs.

In this action to recover first-party no-fault benefits, plaintiff medical provider was awarded summary judgment on its claims for payment for three MRIs performed on its assignor, following an automobile accident on November 27, 2003. The MRIs revealed injuries to the assignor’s neck, lower back and knee. It is uncontroverted that plaintiff’s claims were timely submitted. Nor is it disputed that defendant insurer issued NF-10 forms within 30 days, contending, as the sole reason for its denials, that the assignor’s injuries did not arise out of the subject automobile accident, a conclusion based exclusively on a written accident reconstruction report (referred to by defendant as a low-impact study). The study’s conclusion that the subject accident posed “no risk of injury” to some unknown “volunteer test subjects” was reached without any consideration of the assignor’s claimed injuries. The motion court granted summary judgment to plaintiff, holding that the low-impact study and the affidavit of the engineer who drafted the report, while admissible, did not suffice to raise triable issues of fact as to whether the assignor’s claimed injuries arose out of the accident.

As a general rule, expert opinion evidence based upon accident reconstruction studies is admissible in common-law negligence actions on issues related to causation. For example, in Valentine v Grossman (283 AD2d 571 [2001]), a negligence action, the testimony of a biomechanical engineer was found probative on the issue of whether an automobile accident was severe enough to have caused the injuries sustained by the plaintiff. The engineer’s opinion therein identified a specific injury, i.e., a herniated disc, and a correlation between the injury and the biomechanics of the accident. Here, by contrast, defendant’s low-impact study was conducted without a medical file review or an independent assessment of the assignor’s claimed injuries, if [*2]indeed they were known when the report was prepared. The only aspect of the report remotely bearing on any causation issue was the conclusory statement that the accident{**17 Misc 3d at 99} “posed virtually no risk of injury to voluntary test subjects.” The issue, therefore, is whether such a study is sufficient to deny summary judgment in a first-party no-fault action where plaintiff has made out a prima facie showing of entitlement to judgment.

In the typical negligence action, plaintiff’s burden of establishing causation is met by a showing that the accident was a proximate cause of the claimed injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). However, in an action to recover first-party no-fault benefits, a plaintiff bears no such burden and establishes his or her prima facie case by proof that the claim form was mailed and received, and that the insurer failed to pay within the 30-day statutory period (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In essence, causation is presumed since “it would not be reasonable to insist that a [medical provider] must prove as a threshold matter that its patient’s condition was ’caused’ by the automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 20 [1999]). Thus, the burden is on the defendant insurer to come forward with proof establishing by “fact or founded belief” its defense that the claimed injuries have no nexus to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While generally speaking, accident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries. This is certainly true in the first-party no-fault scenario, where an insurer disclaiming coverage has the burden of establishing that “the medical condition for which the assignor was treated was not related to the accident at all” (Mount Sinai v Triboro Coach, 263 AD2d at 18-19 [internal quotation marks omitted]). Whether a causative nexus exists between an accident and injury “cannot be resolved without recourse to the medical facts” (id. at 19).

Here, defendant offered no medical evidence whatsoever to demonstrate a lack of causation. It failed to perform a medical examination of plaintiff’s assignor or conduct a peer review of his medical treatment in the aftermath of the accident. Absent from defendant’s denial forms was any allegation that the MRIs were not medically necessary or that plaintiff’s assignor was not injured as described in the MRI reports. Nor did defendant rely on any evidence of an event or ongoing chronic condition in the{**17 Misc 3d at 100} assignor’s past medical history to explain his injuries. Significantly, the low-impact study specifically contains a disclaimer that the engineering consulting firm which produced the report “did not perform a medical file review or an assessment of injuries alleged by [the assignor].”

Defendant’s low-impact study contains a “one size fits all,” generalized “medical” component, which does not explain how the assignor’s injuries are causally incompatible with the subject accident. As the concurring opinion correctly points out, the author of the low-impact study, in the absence of a medical review of plaintiff’s injuries, had no way of knowing whether “the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion” (concurring op at 174).

It bears mention that the low-impact study here under review appears to have been ordered five days before the defendant insurer acknowledged having received the claims for the MRIs. Why an insurer would incur the expense of an accident reconstruction to eliminate an [*3]accident as a cause of injuries before receiving a diagnosis is yet to be explained by defendant. We acknowledge that the no-fault statute, together with the rules and regulations promulgated thereunder, do not distinguish between diagnostic testing and treatment with respect to the denial grounds available to an insurer. However, the purpose of the statutory scheme, to streamline the processing of claims for basic economic loss arising from automobile accidents, necessarily would be frustrated if an insurer could deny reimbursement to a medical provider who performs appropriate diagnostic tests in response to a patient’s complaints, based solely upon a generic brand of accident reconstruction which gives no consideration to the patient’s diagnosis or injuries.

We do not say that there can never be a situation where a low-impact study, standing alone, would suffice to create an issue of fact on causation in a first-party no-fault benefit case. Such a situation might be presented, for example, where an assignor has sustained an identifiable injury, the cause of which is so clearly unrelated to the biomechanics of the accident as to require no corroborative medical proof or where the assignor has not sustained any injury. Such is not the case here.

Finally, the concurring opinion raises an issue neither briefed by the parties nor central to the proper resolution of this case, in taking exception with our (and the motion court’s) description of the defense sought to be raised by the low-impact study{**17 Misc 3d at 101} as a lack of coverage defense, reserving that description for injuries which “predated the accident” (concurring op at 105). Instead, the concurrence would characterize the defense advanced by the insurer, i.e., that the subject injuries were unrelated to the accident, as “a disclaimer based on the breach of a policy condition.” We disagree.

Citing as a source for guidance its previous holdings in Albert J. Schiff Assoc. v Flack (51 NY2d 692 [1980]) and Zappone v Home Ins. Co. (55 NY2d 131 [1982]), the Court of Appeals in Chubb (90 NY2d at 201), characterized as a “coverage matter” medical services rendered to treat injuries that did not arise from a covered accident, reasoning that there was no “insurance in effect” to cover such treatment. This is so whether the uncovered injuries occurred before or after the subject accident, because, simply put, the incident which caused the injuries did not fall within the four corners of the policy. Thus, unlike our concurring colleague, we find no basis to limit the applicability of a lack of coverage defense solely to cases involving “a previous injury or condition” (concurring op at 107).

McCooe, J. (concurring). The majority opinion raises two issues common to numerous first-party no-fault benefit actions, the admissibility of a “low-impact study” and the scope of a Chubb no coverage defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Since there may be a disagreement with this court and the Appellate Term, Second and Eleventh Judicial Districts, on the first issue and there is a disagreement with both on the second issue, I am writing separately to state my opinion.

First, since the low-impact study is being rejected as a defense in this summary judgment [*4]motion as a matter of law, I will accept as true the statement of facts relied upon by defendant’s expert, Alfred Cipriani, employed by SEA and the procedures adopted in his project summary which reads in pertinent part:

“I. PROJECT SUMMARY

“PROJECT ASSIGNMENT

“On January 21, 2004, SEA, Ltd. (SEA) was asked to review file material related to a two-vehicle accident that occurred on November 27, 2003, in Bronx, New York. At approximately 6:50 a.m., Mr. Mahamdou Hydara, driving a 1999 Ford Explorer (Ford) owned by Mr. Sulayman Kamara, was traveling southbound on Throgs Neck Expressway, approaching{**17 Misc 3d at 102} the Throgs Neck Bridge toll plaza. A 1991 Volkswagen Jetta (Volkswagen), driven by Ms. Theresa Marone, changed lanes and struck the driver’s side of Mr. Hydara’s Ford. As a result of the impact to his vehicle, Mr. Hydara was allegedly injured. This investigation was assigned to the direction of SEA Technical Consultant/Accident Reconstructionist Alfred L. Cipriani, ACTAR, as SEA Project No. 603622.

“SCOPE OF PROJECT

“Specifically, SEA was asked to consult with respect to this accident, to determine the Ford’s average accelerations, and to compare those results with published crash test studies.

“CONCLUSIONS

“º The average rearward acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 milliseconds (msec) during the collision of November 27, 2003.

“º The average left-to-right acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 msec during the collision of November 27, 2003.

“º The cited scientific research shows that the average accelerations of Mr. Hydara’s Ford posed virtually no risk of injury to volunteer test subjects.

“II. PROCEDURES

“1. SEA reviewed file material related to this accident including:

Ҽ Police Accident Report (NYC) # 3641

Ҽ Report of Motor Vehicle Accident completed by Mr. Hydara

“º Insured’s Supplementary Accident Report completed by Mr. Hydara

Ҽ A repair estimate for the Ford

Ҽ A prior damage estimate for the Ford

Ҽ A description of the accident

Ҽ Four color photocopied photographs of the Ford

Ҽ A copy of the written statement of Mr. Hydara

Ҽ A copy of the written statement of Mr. Kamara

“2. SEA researched specifications and crash test data for the vehicles involved in this accident.

“3. SEA calculated crush stiffness coefficients for{**17 Misc 3d at 103} the vehicles involved in this accident.

“4. SEA performed a low speed impact analysis^[FN1]

“5. SEA reviewed published volunteer test studies involving low speed impacts.”

Cipriani also relied upon Hydara’s statement of facts regarding the accident. The police report indicates that the “cost of repairs to any one vehicle will be more than $1000.00.”

The “Methods of Analysis” is an “engineering analysis of low-speed impacts, depending on the nature of the impact.” There are four types of impacts referred to: bumper to bumper, override and underride, lateral impacts, and sideswipes. While it states that “SEA engineers chose an engineering analysis method most appropriate for the type of impact being studied,” after carefully reviewing the facts, it is not stated which type they are relying on, but I assume it is “lateral impacts” where “it is important to determine the side stiffness for the appropriate vehicle” and “average lateral acceleration must also be reduced by an amount equivalent to the sideways sliding resistence of the vehicle tires.”

Finally the “Signatures” page states that: “SEA did not perform a medical file review or an assessment of injuries alleged by Mr. Hydara. SEA hereby certifies the expressed opinions and conclusions have been formulated within a reasonable degree of professional certainty.”

The Appellate Term, Second and Eleventh Judicial Districts, has held that a low-impact study may constitute a proper basis for denial of a summary judgment motion provided it is in admissible form^[FN2] (see AB Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists 2006]). It relied on Appellate Division analysis in determining that an accident analysis report is relevant to the issue of causation (see Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists 2005], [*5]citing Valentine v Grossman, 283 AD2d 571 [2d Dept 2001]). Furthermore, referring to the coverage defense, a low-impact study has been found to be “sufficient to demonstrate{**17 Misc 3d at 104} that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident’ ” (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525[U],*2 [2005],^[FN3] quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

The first issue here is whether Cipriani’s affidavit, together with the low-impact study report, were sufficient to raise an issue of fact to defeat plaintiff’s motion for summary judgment. After analyzing the police report, repair estimates, written statements made by the drivers, and photographs of the Ford, Cipriani opined that the “average acceleration of [assignor’s] Ford posed virtually no risk of injury to volunteer test subjects.” There is no indication that he factored in the Ford striking the toll booth barrier as affecting the “average acceleration.” He did not (1) calculate the forces generated by the accident, (2) correlate the forces to the injuries allegedly sustained by the plaintiff nor (3) conclude that there was not enough force generated in the collision to cause said injuries (cf. Valentine v Grossman, 283 AD2d at 572 [biomechanical experts correlated the forces generated by the collision to the injuries allegedly sustained by the injured plaintiff and opined that there was not enough force generated to cause said injuries]).

The low-impact study report states that neither a medical file review nor an assessment of the injuries alleged by the plaintiff was performed and did not indicate whether the plaintiff was wearing a seat belt. Therefore he did not know if the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion. This distinguishes Valentine v Grossman (283 AD2d 571 [2001]), where the expert rendered an opinion as to whether there was sufficient force to cause a herniated disc.

Cipriani’s study is general and not specific to the plaintiff but to “volunteer test subjects” whose age and state of health is not indicated so as to form a proper basis for comparison. The report does not and could not explain how the low-impact test results demonstrated that the unknown plaintiff’s injuries were unrelated to the subject accident. While Cipriani opined that the acceleration of the plaintiff’s vehicle “posed virtually no risk of injury,” he did not give an opinion as to whether this particular accident caused the injuries allegedly sustained by the plaintiff.{**17 Misc 3d at 105} Therefore the study was too vague and conclusory to raise a triable issue of fact or to support the defendant’s conclusion that the accident was not severe enough to have caused the injuries allegedly sustained (see Bender v Gross, 33 AD3d 417 [1st Dept 2006]; Maggiotta v Walsh, 306 AD2d 447 [2d Dept 2003] [vague and conclusory expert affidavit submitted in opposition to summary judgment motion failed to raise a triable issue of fact regarding causation]).

The second issue is whether the defense raised is properly a lack of coverage defense as discussed in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) or a disclaimer based on the breach of a policy condition. I disagree with the majority and the Appellate Term, Second and Eleventh Judicial Districts, that it is a lack of coverage defense. Furthermore it should not be an issue here since neither the Civil Court nor the parties contend that it is. This should explain why the “description of the defense . . . as a lack of coverage defense” (majority op at100-101) first raised by the majority was not briefed. The defendant timely filed three denial of claim forms within the [*6]30-day rules and regulation period which read in part: “the results of a low-impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of 11/27/2003 and are inconsistent with a collision of this nature . . . .”

Nevertheless, since the majority agrees with the Appellate Term, Second and Eleventh Judicial Districts, on this issue, I will explain the reasons for my disagreement. The principal reason is that the “exceptional exemption” granted in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) when the insurer fails to timely disclaim should be limited to factual situations where the defense is that the injuries predated the accident in order to find that they were “causally unrelated to the accident.”

The relevant portion of the decision in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (7 Misc 3d 129[A], 2005 NY Slip Op 50525[U],*1-2 [2005]) reads:

“Inasmuch as defendant failed to pay or deny the claim within the 30-day [prescribed] period [11 NYCRR 65-3.8(c), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b])], it [was] precluded from raising most defenses{**17 Misc 3d at 106} (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant [was] not precluded from asserting the defense that the alleged injuries were . . . causally [un]related to the accident [despite the untimely denial of the claim] (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The ‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’ [accompanied by an affidavit] of the Technical Consultant/Accident Reconstructionist who prepared the report . . . was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident‘ (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199 . . . ). [Accordingly], since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment [should not have been granted and the matter is remanded for further proceedings].” (Emphasis added.)

The Ocean case clearly expresses the legal issues under discussion. The two cases relied upon in Ocean are Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

I agree that the Ocean case cites the applicable law but I disagree with the interpretation and that they are factually similar to Ocean or this case. They are both factually dissimilar because both defendants in the cited cases claimed that there was no coverage because the claimed injury predated the accident. The defendant in Chubb successfully claimed that the “injuries were sustained in a separate work-related accident about a year prior to the automobile accident” and the Court found that the untimely disclaimer was an “exceptional exemption” that did not prevent the defendant from raising the lack of coverage defense because the injury was unrelated to the accident (Chubb, 90 NY2d at 198). [*7]

The defendant in Mount Sinai unsuccessfully claimed that the plaintiff’s condition was entirely unrelated to the accident because she “had previously suffered from an unspecified ‘brain disorder . . . manifested by seizures and hospitalizations’ ” and her condition was not incurred in the accident (Mount Sinai,{**17 Misc 3d at 107} 263 AD2d at 14). The Court held that the “exceptional exemption” from preclusion for failure to timely disclaim “applies only where the medical condition for which the patient was treated was not ‘related to the accident at all’ ” (Mount Sinai, 263 AD2d at 18-19). The Court goes on to state that the issue cannot be resolved without resort to the medical facts and that the “defendant has the burden to come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its belief]’ that the patient’s treatment was unrelated to his or her automobile accident” (Mount Sinai, 263 AD2d at 19-20). Speaking as to the need for medical proof, the Court goes on to state, “Indeed, this case is a vivid illustration of why an expert’s affidavit will usually be necessary to effectively establish the basis of an insurer’s founded belief” (Mount Sinai, 263 AD2d at 20).

Based upon the foregoing, I disagree that a “low-impact study” can be the basis for a “founded belief” that the alleged injuries are “not related to the accident at all” and form the basis for a lack of coverage defense. This “exceptional exemption” first spelled out in Chubb and later in Mount Sinai only applies where the defendant comes forward with medical proof for its founded belief that the medical treatment was not related to the accident at all “but to a previous injury or condition.”

The overly broad characterization of a breach of policy condition or policy exclusion as a coverage defense nullifies the 30-day disclaimer rule.

McKeon, P.J., and Schoenfeld, J., concur; McCooe, J., concurs in a separate opinion.

Footnotes

Footnote 1: A. Toor et al., Practical Analysis Technique for Quantifying Sideswipe Collisions, SAE Paper 1999-01-0094, 1999.

Footnote 2: The Civil Court determined that Mr. Cipriani’s affidavit, which referenced and attached the low-impact study report, was in admissible form and plaintiff does not challenge this finding or the admissibility of the report.

Footnote 3: The Ocean case will be discussed in greater detail on the coverage issue.