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 (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without 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 plaintiff’s owner, and various documents annexed thereto. The affidavit executed by plaintiff’s owner stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below
denied the motion on the ground that plaintiff’s owner failed to set forth his job duties or the basis for his personal knowledge, if any, of plaintiff’s billing procedures so as to lay a foundation for the admission of plaintiff’s business records. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficient to establish that he 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 [*2]Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Medical, 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.

In view of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 29, 2007

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 (Arlene Bluth, J.), entered March 2, 2006. The judgment denied the petition to vacate the master arbitrator’s award and dismissed the proceeding.

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 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]).

We further note that the record reveals that the petition was timely filed (CPLR
7511 [a]).

Weston Patterson, J.P., Golia 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, Kings County (Alice Fisher Rubin, J.), dated August 10, 2005. The order denied defendant’s cross motion for summary judgment and granted plaintiff’s motions for summary judgment.

Order modified by providing that plaintiff’s motions for summary judgment are 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, in one motion, to recover upon its claims for treatment allegedly provided assignor Yekaterina Panina, and in a second motion, for summary judgment upon its claims for treatment provided assignors Iraida Fundator,
Nikita Vesensky, Arshavir Amatunyan, and Ruslan Babskiy. Defendant cross-moved for summary judgment. The court granted plaintiff’s motions and denied defendant’s cross motion. Defendant appeals.

Plaintiff’s proof of mailing of the claim forms concerning the services allegedly provided Panina, which defendant denied receiving, was insufficient (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). As a result, plaintiff’s motion for summary judgment upon those claims should have been denied. [*2]

As to the remaining claims, set forth in plaintiff’s second motion, defendant’s NF-10 claim denial forms and the affidavit of its claims examiner conceded receipt of the claims of assignors Fundator, Vesensky, Amatunyan and Babskiy, in the amounts, respectively, of $6,504.86, $964.50, $2,025.42, and $2,379.06, thereby curing the deficiencies in plaintiff’s proof of mailing with respect thereto (see Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U] [App Term, 2d & 11th Jud Dists]; see also Oleg Barshay, DC., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As there was no proof of the mailing of the remaining claims for which plaintiff sought summary judgment, and defendant did not admit the claims’ receipt, summary judgment in favor of plaintiff as to those sums should also have been denied.

With respect to the claims for which defendant conceded receipt, its denials were untimely since its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations applicable at the time lacked a provision entitling an insurer to an examination under oath (see Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50611[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), thereby precluding most defenses, including “fraudulent claims” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Defendant’s documentation included transcripts of the examinations under oath of several persons involved in the incident, which contain numerous statements that are implausible on their face with respect to matters material to the determination of whether the incident was staged to defraud defendant. Defendant also established that plaintiff’s billing agency and a medical provider sharing plaintiff’s professional address have entered guilty pleas to grand larceny and scheme to defraud in the first degree, which charges were based on the submission of false no-fault benefits claims. As a condition of the pleas, the billing agency and provider were required, respectively, to withdraw pending claims and to refrain from filing further claims for treatment alleged to have been provided in the period in which the instant treatment, and the claims based thereon, occurred. We note that some of plaintiff’s assignors had contact with the aforementioned provider for injuries alleged to have been caused by the incident underlying all of plaintiff’s claims. On the facts herein, we find that defendant established that its denials were based upon a “founded belief that the alleged injur[ies] d[id] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199) to the extent of warranting a trial as to coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK [*3]
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAST ACUPUNCTURE, P.C.
a/a/o IRAIDA FUNDATOR, NIKITA VESENSKY,
YEKATERINA PANINA, ARSHAVIR AMATUNYAN
and RUSLAN BABSKIY,

Respondent,

-against-

ELECTRIC INSURANCE CO.,
Appellant.

Golia, J.P., concurs in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Nassau Dist Ct

34247/06

Attorneys for Plaintiff: Joseph Henig, PC

Attorneys for Defendant: Carman, Callahan & Ingham, LLP

Andrew M. Engel, J.

The Plaintiff commenced this action to recover no-fault first party benefits for medical services provided to its assignor between March 28, 2005 and April 1, 2005, inclusive, following a motor vehicle accident of March 28, 2005. The action was commenced on or about September 12, 2006; and, issue was joined on or about October 19, 2006. The Plaintiff now moves for summary judgment pursuant to CPLR § 3212. The Defendant opposes the motion and cross-moves for the same relief. The Plaintiff opposes the cross-motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court’s function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

To make out a prima facie case, the Plaintiff must establish the proper submission [*2]of its claim and the carrier’s failure to either pay or issue a valid denial within thirty (30) days of receipt thereof. 11 N.Y.C.R.R. § 65-3.8(a)(1) and (c); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 11 AD3d 664, 784 NYS2d 136 (2nd Dept. 2004); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007).

The Plaintiff’s Hospital Biller and Account Representative alleges that she billed the Defendant, for the services in question, on June 29, 2005, in the amount of $12,734.17 by certified mail return receipt requested. The Plaintiff submits the return receipt card which specifically identifies the no-fault bill of its assignor and indicates that the Defendant received and signed for the bill on July 1, 2005. The Plaintiff further alleges that the Defendant neither paid nor denied the claim within thirty (30) days of its receipt.

In opposition to the Plaintiff’s motion and in support of its cross-motion, the Defendant submits the affidavit of Mariann Yuengling, its Claims Specialist for the No-Fault Department. Ms. Yuengling admits the Defendant’s receipt of the Plaintiff’s bill, in the sum of $12,734.17, on July 1, 2005. Similarly, the Defendant does not dispute that it has not paid this claim. Based thereon, the Plaintiff has established a prima facie right to the entry of a judgment, as a matter of law. To successfully defeat the Plaintiff’s motion, it is now incumbent upon the Defendant to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [its] failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Ms. Yuengling, on the Defendant’s behalf, alleges that the Defendant did issue a denial to the Plaintiff’s claim within thirty (30) days of its receipt, based upon the untimeliness of the Plaintiff’s claim. Specifically, Ms. Yuengling alleges that the Plaintiff’s claim here in question, for the services rendered between March 28, 2005 and April 1, 2005, was dated June 29, 2005, far in excess of the forty-five (45) days now required by Insurance Department Regulations 11 N.Y.C.R.R. §§ 65-1.1 and 65-2.4 and that a denial based thereon was mailed to the Plaintiff on July 19, 2005. The Defendant argues, based thereon, that the Plaintiff’s motion must be denied and that the Defendant’s cross-motion must be granted.

During oral argument on this motion, both sides conceded that the determination of these motions will depend upon the sufficiency of the Defendant’s proof of mailing of its denial. Counsel for the Plaintiff conceded that if the Defendant’s proof of mailing is sufficient, the Plaintiff’s motion would have to be denied and the Defendant’s cross-motion granted. Conversely, counsel for the Defendant conceded that if the Defendant’s proof of mailing is insufficient the Plaintiff’s motion would have to be granted and the cross-motion denied.

The Defendant’s proof of mailing consists of Ms. Yuengling’s statement that she is [*3]“thoroughly familiar with LIBERTY MUTUAL INSURANCE COMPANY’S mailing practices and procedures through personal training and experience in document production and mailroom operation and through [her] personal observation of the execution of said mailing practices and procedures[,]” (Yuengling Affidavit 3/14/07, ¶ 12) along with her description of those mailing practices and procedures, as follows:

13…. the no-fault documents mailed from DTS [Doc Tech Services] are initially created in the Liberty Mutual No-Fault Claims department. At the start of the business day, the DTS staff downloads all documents which were electronically forwarded from the No-Fault Claims department for printing and mailing the prior business day. Any documents forwarded on a Saturday are downloaded on the following Monday. Documents forwarded to the DTS department on the day before a holiday are downloaded on the following business day.

14.Once the documents are downloaded, a member of the DTS staff verifies that the documents are properly addressed to all parties, including parties to be carbon copied on the correspondence. The documents are then printed with extra carbon copies, if warranted, folded and inserted into envelopes containing windows which display the address of the intended recipient. The envelopes are then weighed and the proper postage is affixed. The envelopes are then placed in designated bins for pickup by the United States Postal Service, an employee of which appears at this office for pickup at 2:00 p.m. and 6:00 p.m. every business day.

15.Based on the foregoing, no-fault claims correspondence, including but not limited to requests for additional verification (delay letters) and no-fault denial of claim forms issued by Liberty Mutual in the regular course of its business are properly mailed to the intended recipient the first business day after the date which appears on the document itself.(Yuengling Affidavit 3/14/07, ¶¶ 13-15)

The “procedure” Ms. Yuengling describes is not “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,”Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001) Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133(A), 787 NYS2d 675 (App. Term 2nd and 11th Jud. Dists. 2004), sufficient to raise a presumption of receipt of the denial by the Plaintiff. Stripped of all of its excess verbiage, the procedure Ms. Yuengling describes consists of nothing more than someone from Doc Tech Services folding the denial of claim form, placing it in an envelope, affixing postage thereto and placing the envelope in bins in the mail room for the United States Postal Service. There is, apparently, no record kept of the items mailed and/or no certificate of mailing against which the preparation and mailing of these denials are checked. Moreover, having “failed to specify either that it was [her] duty [*4]… to ensure compliance with said office procedure or that [she] had actual knowledge that said procedures were complied with” in this case, Contemp. Med. Diag. & Treatment, P.C. v. Government Employees Insuarnce, 6 Misc 3d 137(A), 800 NYS2d 344 (App. Term 2nd and 11th Jud. Dists. 2005), Ms. Yeungling’s affidavit “failed to make the requisite showing to establish that a proper denial was sent. (citations omitted).” Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Andrew Carothers, M.D., P.C. v. Progressive Insuarnce Company, 14 Misc 3d 1210(A), 2006 WL 3843584 (Civ. Ct. Kings Co. 2006).

Accordingly, the Plaintiff’s motion for summary judgment is granted and the Defendant’s cross-motion for summary judgment is denied. The Plaintiff is entitled to the entry of a judgment in the principle sum of $12,734.17, plus interest from July 29, 2005, 11 N.Y.C.R.R. § 65-3.9; Smithtown General Hospital v. State Farm Mutual Automobile Insurance Company, 207 AD2d 338, 615 NYS2d 426 (2nd Dept. 1994); Hempstead General Hospital v. Insurance Company of North America, 208 AD2d 501, 617 NYS2d 478 (2nd Dept. 1994), along with statutory attorneys’ fees, costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

June 21, 2007

___________________________

ANDREW M. ENGEL

J.D.C.

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 (Eileen Nadelson, J.), entered December 3, 2004. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

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

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained,
and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v
Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, the denial of claim form (NF-10) annexed to plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and received by defendant (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant received the claims, such an argument lacks merit (see Insurance Law 5106 [a]). [*2]

In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator 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 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,

Respondent, [*3]

-against-
STATE FARM INS. CO.,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: June 15, 2007

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 (Dolores L. Waltrous, J.), entered January 4, 2006. The order granted plaintiff’s motion for partial summary judgment with respect to the cause of action on behalf of assignor Hypolite Francis and denied defendant’s cross motion for partial summary judgment with respect to the cause of action on behalf of said assignor.

Order reversed without costs and matter remitted to the Civil Court, Kings County and held in abeyance for a new determination of the motion and cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment dismissing those claims, inter alia, on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers’ Compensation Board. The court granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion. Defendant’s appeal ensued. [*2]

We find defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Accordingly, the order is reversed and the matter remanded to the court below with the direction that the court hold the matter in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’
Compensation Law (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 8, 2007

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 (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005, deemed an appeal from a judgment entered on December 9, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2005 order denying defendant’s motion for summary judgment and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $7,498.62.

Judgment reversed without costs, order entered October 24, 2005 vacated insofar as it granted plaintiff’s cross motion for summary judgment and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing plaintiff’s complaint based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant annexed, inter alia, copies of claim forms, denial of claim forms (NF-10s) and letters scheduling the IMEs. Plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation of plaintiff’s counsel and by an affidavit executed by Boris Zigmond, D.C., the “principal doctor” of plaintiff. There were no claim forms or NF-10s [*2]annexed with its cross motion. Rather, Zigmond stated in his affidavit that he was “informed” that the foregoing documents were annexed to defendant’s motion. The court below denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit submitted by Zigmond in support of the cross motion, failed to lay a proper foundation for the documents annexed to defendant’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by Zigmond was insufficient to establish that he possessed sufficient personal knowledge so as to lay a foundation for the admission, as
business records, of the documents upon which plaintiff relied. 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]). Consequently, plaintiff’s cross motion for summary judgment should have been denied.

With respect to defendant’s motion based upon the assignor’s failure to appear for scheduled IMEs, the affidavit submitted by defendant in support of its motion was insufficient to establish the mailing of the IME notices and the assignor’s nonappearance at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent defendant also sought dismissal of some of plaintiff’s claims on the ground that the fees charged were not in conformity with the Workers’ Compensation fee schedule, defendant did not proffer sufficient evidence to establish as a matter of law that said claims reflected the incorrect amount for the services provided (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op
50388[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied defendant’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
TRIBORO CHIROPRACTIC AND ACUPUNCTURE, PLLC
a/a/o CRYSTAL WILLIAMS,

Respondent,

-against- [*3]
NEW YORK CENTRAL MUTUAL
FIRE INSURANCE COMPANY,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: June 8, 2007

—[*1] The Barnes Firm, P.C., Rochester (Richard P. Amico of counsel), for respondent-appellant.

Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered March 8, 2006 in a proceeding pursuant to CPLR article 75. The order granted the petition and permanently stayed arbitration.

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

Memorandum: On July 29, 2003, respondent was seriously injured when the vehicle in which he was a passenger struck another vehicle. Respondent filed claims with the insurance companies for both vehicles. The insurance company for the vehicle in which respondent was a passenger denied his claim on the ground that the policy had expired at the time of the accident and thus the vehicle was not insured. The insurance company for the second vehicle denied respondent’s claim on the ground that there was no liability for the accident on the part of its insured. The Motor Vehicle Accident Indemnification Corporation denied respondent’s subsequent application for benefits on the ground that respondent was covered by an insurance policy issued by petitioner, Progressive Northeastern Insurance Company (Progressive), to respondent’s parents.

On March 16, 2004, respondent filed both a claim for no-fault benefits and an uninsured motorist (UM) claim with Progressive. Progressive paid benefits on the no-fault claim but disclaimed coverage on the UM claim based on respondent’s failure to give Progressive notice and proof of the claim as soon as practicable. When respondent informed Progressive of his intent to arbitrate his UM claim, Progressive commenced this CPLR article 75 proceeding seeking to stay arbitration. We conclude that Supreme Court properly granted the petition.

Contrary to the contention of respondent, the fact that Progressive paid no-fault benefits does not establish that Progressive waived the right to disclaim coverage on the UM claim. “Waiver is the intentional relinquishment of a known right” (Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981 [2002]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). [*2]Here, there is no evidence in the record establishing Progressive’s intentional relinquishment of the notice requirements (see generally Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]).

Contrary to respondent’s further contention, Progressive was not required to show prejudice before disclaiming coverage on the UM claim. Traditionally, the rule in New York has been that “an insured’s failure to provide timely notice of an accident [or claim] relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 474-475 [2005]). Although the Court of Appeals has declined to apply the traditional rule in cases where the insurer has received late notice of a legal action but otherwise received timely notice of the accident or claim (see e.g. Rekemeyer, 4 NY3d at 475-476; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 497-498 [2002]), here there was no timely notice of the accident or claim (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]; Matter of Assurance Co. of Am. v Delgrosso, 38 AD3d 649, 650 [2007]; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 461 [2005]; Brownstone Partners/AF&F, LLC v A. Aleem Constr., Inc., 18 AD3d 204 [2005]). Thus, Progressive was entitled to disclaim coverage on the UM claim based on respondent’s seven-month delay in notifying Progressive of the accident or claim (see e.g. Gershow Recycling Corp., 22 AD3d at 461).

In light of our determination, we see no need to reach Progressive’s remaining contention. Present—Hurlbutt, J.P., Gorski, Smith, Lunn and Pine, JJ.