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 December 2, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see 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]). A plaintiff ordinarily establishes the submission of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the proof annexed thereto were insufficient to establish that plaintiff mailed the claim to defendant since “there is no evidence that th[e] claim was mailed to [defendant] under that certified mail receipt number” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, [*2]548 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud
Dists 2004]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment.

The affidavit of defendant’s claim representative and the printout annexed thereto established that defendant never received the subject claim from plaintiff. Since plaintiff failed to rebut defendant’s contention that it never received the claim by establishing the mailing of same, the lower court’s order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment should be affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 28, 2006

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 August 16, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Here, the affidavit of plaintiff’s corporate officer and the proof of
mailing annexed thereto were insufficient to establish that plaintiff mailed its claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claim in question by attaching to its moving
papers a delay letter from defendant is unavailing since said letter did not specifically refer to the claim at issue in that it did not set forth the amount of the claim (see Impulse Chiropractic, P.C. v Travelers Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists]). Therefore, since plaintiff failed to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.

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

[*1]

District Court of Nassau County, First District, December 28, 2006

APPEARANCES OF COUNSEL

Freiberg & Peck, New York City, for defendant. Robert E. Dash, Syosset, for plaintiff.

OPINION OF THE COURT

Gary F. Knobel, J.

The motion by the defendant for an order inter alia compelling the plaintiff to provide discovery responses is granted to the extent that (1) the plaintiff shall provide responses to all outstanding discovery demands by January 31, 2007, and (2) the parties shall appear for depositions in room 5 of the Supreme Court courthouse, 100 Supreme Court Drive, Mineola, New York, on or before February 28, 2007, at 9:30 a.m.; the plaintiffs shall be deposed first, to be immediately followed by an individual produced by the defendant with personal knowledge of the facts.

This is an action to recover $3,905.03 in no-fault benefits provided by the plaintiff to its assignor in the form of, inter alia, nerve conduction studies. The defendant concluded that these tests were medically not necessary and consequently refused to reimburse the plaintiff for the testing and services it provided to its assignor.

The defendant does not dispute that the plaintiff is entitled to disclosure of the assignor’s no-fault file which the defendant has in its possession since these records are material and necessary to the prosecution of plaintiff’s claim (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 408 [1968]; Beutel v Guild, 5 AD3d 1087 [2004]; Scott v Albord, 289 AD2d 389 [2001]; Hinrichs v Tonnssen, 128 Misc 2d 196 [1985]). The defendant contends, however, that based upon this court’s holding in Westbury Med. Care, P.C. v Lumbermans Mut. Ins. Co. (5 Misc 3d 838 [2004, Asarch, J.]), it cannot produce the no-fault file without a valid authorization from the assignor complying with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Notwithstanding this minor issue, the parties could not resolve their dispute over a narrow question which is discussed daily between practitioners in this field but apparently has not been officially reported upon in New York: does the plaintiff have to [*2]pay the defendant for the cost incurred by the defendant in copying its no-fault file? The defendant has demanded a $95 fee for copying the file even though it has not disclosed how many pages the file contains. The plaintiff’s attorney maintains that the plaintiff is entitled to have the file reproduced at no charge, arguing that “the only firm that requests a payment for the no-fault file is defendant’s counsel.” However, plaintiff’s counsel did not cite in his brief any analogous precedent which would directly support its argument. Plaintiff’s attorney also argues that if this court imposes a fee upon the plaintiff to obtain its assignors’ no-fault file “it will set a precedent on both the plaintiff’s and defendant’s bar to charge each other for the cost of reproduction of documents” (see, Fletcher v Atex Inc., 156 FRD 45, 50 n 4 [1994]).

The court has broad discretion to set the terms and conditions of discovery (Castagnazzi v Schlecker, 159 AD2d 533 [1990]). CPLR 3103 (a) permits a court to “make a protective order . . . regulating the use of any discovery device. Such order shall be designed to prevent unreasonable annoyance, expense . . . or other prejudice to any person.” A CPLR 3103 protective order is equally available in the District Court (as well as all lower courts) pursuant to section 1101 (c) of the Uniform District Court Act (and the applicable lower court act) (see, Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:6, at 560).

Appellate courts have required a party to pay a reasonable cost for the reproduction of medical records, regardless of whether a party or nonparty is in possession of those records (Colon v City of New York, 285 AD2d 523, 524 [2001] [defendants to reproduce plaintiff’s medical records at a cost to the plaintiff at 25c per page]; McCrossan v Buffalo Heart Group, 265 AD2d 875, 876 [1999] [nonparty health care provider cannot charge more than 75c per page for paper copies of records pursuant to Public Health Law § 18 (2) (e)]; Badach v Caggiano, 255 AD2d 919 [1998] [plaintiffs to pay for half the cost of obtaining duplicate copies of records and reports of treating and examining physicians which were acquired by the defendant through the authorizations provided by the plaintiffs]; Castagnazzi v Schlecker, 159 AD2d 533 [1990] [plaintiff to pay a reproduction fee of 25c per page plus $50 to the defendant for a duplicate copy of hospital records he obtained pursuant to the authorizations of the plaintiff]; Matter of McDonald v State Univ. of N.Y., Downstate Med. Ctr. [Univ. Hosp.], 129 AD2d 798 [1987] [petitioner must either pay the fee sought by the appellant for the reproduction of the medical records, or photocopy the record herself; if the latter option is chosen, she must pay a reasonable sum for the time spent by a hospital employee in supervising the copying]). Indeed, the rule in the Second Department—that “the party seeking discovery of documents . . . should pay the cost of their [reproduction]”—is based upon the principle that “each party should shoulder the initial burden of financing his own suit” (Rubin v Alamo Rent-A-Car, 190 AD2d 661, 663 [1993]; see also, Schroeder v Centro Pariso Tropical, 233 AD2d 314 [1996]; Lipco Elec. Corp. v ASG Consulting Corp., 4 Misc 3d 1019[A], 2004 NY Slip Op 50967[U] [2004]; Siegel, NY Prac § 353, at 578 [4th ed 2005]). However, the Legislature contemplated that the party who ultimately prevails on the merits is permitted at that later time to tax as disbursements the [*3]expenses incurred in connection with disclosure and recover them from the losing side (see, e.g., CPLR 8301 [a] [1], [9]; Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:5, at 559). The court can also exercise its protective powers under CPLR 3103 (a) in cases where there is a disparity in the parties’ economic resources, or where the expense of the disclosure greatly exceeds the small monetary recovery sought by the party (see, Connors, Practice Commentaries, supra at 559, 561).

After applying these principles to the facts and contentions at bar, the court concludes that the plaintiff has failed to demonstrate any basis upon which there should be a deviation here from the precedent and general rule in this department. Accordingly, the court directs the defendant to immediately inform the plaintiff’s attorney of the actual number of pages contained in the assignor’s no-fault file, and also directs the plaintiff to (1) provide the defendant’s attorney, by January 31, 2007, with a HIPAA authorization executed by plaintiff’s assignor (see, Westbury Med. Care, P.C. v Lumbermans Mut. Ins. Co., supra), and (2) exercise in writing to defendant’s attorney by January 31, 2007 four options: (a) to inspect the no-fault file at defendant’s counsel’s office and designate the pages to be reproduced at 25c per page, or (b) to inspect the no-fault file at the Supreme Court courthouse on the day designated for the depositions of the parties and photocopy in the courthouse the file or the designated portions thereof, or (c) to have the defendant photocopy the no-fault file at a cost to the plaintiff of 25c per page, and furnish the reproduced file to plaintiff’s attorney by February 7, 2007, or (d) to pay the defendant the sum of $95 to photocopy and reproduce the no-fault file.

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 (George J. Silver, J.), entered July 11, 2005. The order, insofar as appealed from as limited by defendant’s brief, granted plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw .

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Herein, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [was submitted] in a timely manner” and that bills for the services rendered to the respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [*2][2005]). While a defendant insurer’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that defendant received the claims (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]), there are discrepancies herein between the claim
forms and denial of claim forms which are not explained on the record. Likewise, defendant’s letters to plaintiff did not set forth with sufficient particularity the specific claims to which the letters referred. Accordingly, since the denial of claim forms and letters are inadequate to establish receipt of the claim forms, and plaintiffs did not otherwise provide proof of proper mailing of the claim forms, the order of the court below is reversed and plaintiffs’ motion for summary judgment is denied (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 27, 2006

Civil Court of the City of New York, Kings County

KCV97338/04

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $810.32. A trial on the matter was conducted by this Court on September 13, 2006. Based on the evidence and testimony adduced at trial, this Court makes the following findings of fact and conclusions of law.

To establish its prima facie case, Plaintiff submitted a Notice to Admit duly served on the Defendant and an Order issued by Judge Eileen N. Nadelson dated December 8, 2005 granting Plaintiff’s motion for summary judgment and dismissing Defendant’s cross-motion to dismiss. The Defendant moved for a Directed Verdict. The Court reserved decision. With regard to Judge Nadelson’s December 8, 2005 Order, the Court notes that this Order is with regard to a different Plaintiff and a different Index Number separate from the case at bar. Therefore, said Order has no bearing on this case.

With regard to Plaintiff’s Notice to Admit, the Court notes that the purpose of a Notice to Admit is to eliminate from the issues in litigation matters which will not be in dispute at trial. Desilva v. Rosenberg, 236 AD2d 508, 645 NYS2d 30 (2d Dept. 1997); Miller v. Hillman Kelly Co. 578 NYS2d 319 {177 AD2d 1036} (4th Dept. 1991). Defendant’s denial of Plaintiff’s claim is based on Plaintiff’s failure to appear for a scheduled EUO pursuant to a subpoena and lack of coverage based on fraud in that the accident was staged. In an action for first-party no-fault benefits, the Plaintiff establishes its prima facie burden by proof that it submitted a claim setting forth the facts, the amount of the loss sustained, and that payment of no-fault benefits is overdue. 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]; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The Court finds that Plaintiff established its prima [*2]facie case with the submission of its Notice to Admit.

Generally, an insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and that the loss was a covered event within the terms of the policy. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Company, 7 Misc 3d 822, 795 NYS2d 843 [Civ. Ct. Kings County 2005]. Whatever the risk or loss covered, it has long been the insured’s burden to prove coverage under the policy. A.B. Medical Services, id. At 825.

The Plaintiff’s prima facie showing establishes a presumption of coverage. A.B. Medical Services, PLLC, id at 825. Once the Plaintiff makes a prima facie showing, the burden of explanation or of “going forward with the case” falls upon the defendant. Mount Sinai Hosp. v. Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 [2d Dept., 1999]. This burden, in effect, allows the Defendant to disprove the presumption of coverage, thus demonstrating its denial of Plaintiff’s complaints. Palmier v. United States Fidelity and Guaranty Company, 135 AD2d 1057 (3rd Dept. 1987). No-fault insurance policies cover only vehicular accidents. A deliberate collision is not a covered accident. State Farm Mutual Automobile Ins. Co. v. Laguerre, 3035 AD2d 490, 759 NYS2d 531 [2nd Dept. 2003]; Allstate Insurance Co. v.Massre, 14 AD3rd 610, 789 NYS2d 206 [2nd Dept. 2005]. When a collision is an intentional act, not an accident, there is no coverage “regardless of whether the intentional collision was motivated by fraud or malice.” Government Employees Ins. Co. v. Shaulskaya, 302 AD2nd 522, 756 NYS2d 79 [2nd Dept. 2003].

The standard of proof to be applied in the staged accident arena is preponderance of the evidence. Universal Open MRI of the Bronx, P.C.v. State Farm Mut. Auto Ins., 12 Misc 3d 1151(A) (N.Y.Civ. Ct. Kings County 2006); V.S. Medical Services, P.C., v. Allstate Insurance Company, 11 Misc 3d 334, (NY Civ. Kings County 2006); A.B. Medical Services, PLLC, supra .

If an insurer has a “founded belief” that the alleged accident was not a true accident, it can deny the claim based on 11 NYCR 65-3.8(e)(2). The insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that there is no coverage. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Co., 7 Misc. 3rd 11, 699 NYS2d 55 (2nd Dept.). If this threshold is reached, the burden shifts to the Plaintiff to rebut the Defendant’s case. When all the evidence has been submitted, the finder of fact must determine whether the evidence preponderates in favor of the Plaintiff or the Defendant. V.S. Medical Services, P.C., supra .

At trial Plaintiff did not present any witnesses. Defendant called as its principal and only witness Don Willsey. Mr. Willsey stated he has been a State Farm employee for 12 years and for the last 7 years he has been assigned to the Special Investigation Unit where he investigates no-fault claims that are deemed to be suspicious. Mr. Willsey gave testimony about a list of “suspicious indicators” used by State Farm to determine whether there is a basis to deny a claim which includes but is not limited to:

– Recent purchase of the insurance policy. [*3]

– Vehicle insured is an older model.

– P.O. Box is used for the insured address.

– Failure to cooperate with scheduled E.U.O

– Vehicle and/or claimants have been involved in multiple

accidents in a short period of time.

In addition to the above “suspicious indicators” Mr. Willsey stated that State Farm also relies on information obtained from the National Insurance Crime Bureau and an in-house State Farm Link Chart.. Mr Willsey stated that the following suspicious indicators were present in the case at bar:

– Driver of the insured vehicle was involved in 2

accident over a short period of time.

– Driver of insured vehicle was involved in an

accident on 11/19/05 one month before the alleged

accident in question.

– Passenger in 11/19/05 accident had 3 prior accidents

– Both vehicles involved in the alleged accident

were older model vehicles.

– An insurance claim was previously submitted to

another insurance carrier.

– Driver of insured vehicle did not appear for

scheduled E.U.O.

– Insured appeared for scheduled E.U. but was

not cooperative.

Based on the above, Mr. Willsey stated that it was his opinion that the accident was staged. However, on cross-examination, Mr. Willsey testified that he did not personally investigate the claim, he was not involved in the investigation of the claim, he was not present at the scheduled E.U.O., he did not visit the scene of the accident and he was not involved in the decision to deny the claim.

The Court determines that Defendant failed to come forward with proof in “admissible form” to establish the “fact” or the evidentiary “foundation” to buttress its belief that the injuries alleged by the assignor did not arise from an insured accident. The Defendant failed to proffer admissible evidence to rebut the presumption of coverage that attaches to the Plaintiff’s properly completed claim form. Mr. Willsey has no first hand knowledge of the events concerning the facts and investigation of the claim, and most importantly, he was not privy to the discussions and reasoning which resulted in the denial of the claim. The above “suspicious indicators” used by Defendant as a basis for denial of Plaintiff’s claim, taken together or alone does not sustain defendant’s burden by a preponderance of the evidence. At best, such “suspicious indicators” are speculative and not determinative.

Based upon the foregoing, this Court concludes that the Defendant has failed to come forward with evidence of a staged accident or that the loss giving rise to this action was [*4]intentional, and thus the burden of persuasion was never shifted to Plaintiff. Accordingly, judgment is to be entered in favor of Plaintiff in the amount of $810.32 plus statutory interest and attorney’s fees. This constitutes the Decision and Order of this Court.

DATED: December 22, 2006_________________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, Kings County

89030 KCV 2005

Lila P. Gold, J.

Plaintiff commenced this action under the No-Fault provisions of the Insurance Law to recover fees in the amount of $879.73 for medical services provided to its assignor.

Plaintiff proceeded to offer evidence via the presentation of documents and testimony of Octavio Rodriguez, a billing manager for Advanced Heathcare Solutions, L.L.C., formerly known as Medtrx, L.L.C. in order to establish a prima facie entitlement for payment of the no-fault benefits.

To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to the defendant, that defendant received the claim and that defendant failed to pay or deny the claim within thirty days. (See Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133A [App Term 2nd & 11th Jud Dists 2003]).

Mr. Rodriguez testified that it was his duty to generate bills (NF-3) from information sent over a secure internet website from Andrew Carothers, M.D. P.C. Additionally his duties included preparing the envelope with the appropriate label and postage, placing the required documents necessary to process a claim into the envelope, sealing the envelope and bringing it to the post office, where he would receive a proof of mailing which was then scanned into the computer system upon his return to the billing office from the post office.

Plaintiff offered the claim form (NF-3), the signed Assignment of Benefits form (NF-AOB), proof of mailing, together with a copy of the treating doctor’s referral and the MRI narrative into evidence.

Plaintiff further strengthened its prima facie case by having Defendant’s denial form (NF-10) admitted into evidence for the limited purpose of showing that the claim was received timely by the Defendant.(See A.B. Med. Serv., P.L.L.C. v. New York Central Mut. Fire Ins. Co., 3 Misc 3d 136(A); see also Kings Medical Supply, Inc. v. Country-Wide Ins. Co., 5 Misc 3d 767).

At this point Plaintiff rested and Defendant made a motion for a directed verdict as, in his opinion, Plaintiff did not establish a prima facie entitlement to the no-fault benefits. Defendant’s position was that Plaintiff did not lay the proper foundation to have its documents admitted into evidence.

This motion was denied. The court finds that Plaintiff did in fact lay the proper [*2]foundation to submit the documents into evidence, via the testimony of Mr. Rodriguez. “Where an entity routinely relies upon the business records of another entity in the performance of its own business and fully incorporates said information into the records made in the regular course of its business, the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy.” (See Pine Hollow Medical P.C. v. Progressive Casualty Insurance Co., 2006 NY Slip Op 51870U) Since Advance Healthcare Solutions L.L.C. is a billing company whose regular business is to produce bills based on information imparted to them by Plaintiff and maintained these records in the regular course of its business, the proper business record foundation was established to admit the documents into evidence (CPLR 4518[a]). (See Plymouth Rock Fuel Corp. v. Leucadia Inc., 117A.D. 2d 727; see also West Valley Fire District No. 1 v. Village of Springville,264 AD2d 949)

Once Plaintiff established its prima facie entitlement, the burden shifted to the Defendant to substantiate their basis for denying the claim. The Defendant contended that the services provided lacked medical necessity and therefore Defendant was not obligated to pay the claim.

However, the Court finds that before the issue of medical necessity is reached, the Defendant must overcome the fatal defects contained in the NF-10. Namely, the NF-10 was untimely on its face, as it denied the claim on May 2, 2005 after receiving the bill on March 14, 2005. Additionally, the NF-10 is factually insufficient, conclusory and vague in explaining the reason for denial of benefits. (See Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 779 NYS2d 715) The claim was denied for failure to establish medical necessity and the denial failed to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity. (See A.B. Med. Servs. P.L.L.C. v. GEICO Cas. Ins. Co., 2006 NY Slip Op 26133)

To overcome these defects, Defendant called Ms. Michelle Cusano, a Litigation Team Leader for the Defendant, Progressive Insurance Company. She testified that her duties were to review claim files in preparation for litigation. It was her testimony that the NF-10 was timely since a verification request was sent thereby tolling the deadline for the denial. It was her contention that the verification was answered on April 12, 2005 and therefore the NF-10, sent on May 2, 2005, was timely.

She further testified that the NF-10 was not factually insufficient, conclusory or vague in explaining the reason for the denial since it was accompanied by a peer review report which set forth the reason for denial with sufficient particularity and medical rationale. It was her testimony that since she saw the NF-10 and the peer review report in the file and under the general office procedure of mailing, it would have been placed in the claims file contemporaneously with their mailing. Therefore, she deduced that it was mailed together.

Ms. Cusano testified that although she was not the person who was responsible to mail the verification request and it was not even her duty to ensure that the request was sent, she knew that it was sent because she had previously worked in the processing department in the late 1990’s and at that time it was her responsibility to generate the verification requests. She described the procedure she would take in detail; attempting to establish the mailing of the [*3]verification request.

On cross examination, Ms. Cusano stated that the person in the processing department would print three copies of a verification request. One copy was sent to the mail room to be mailed to the person whom they needed verification from; the second copy was placed in a 30-day box, which would be used to monitor whether or not an answer to the request was received; and the third copy was placed in the claim file. It was that third copy, coupled with the fact that the verification request was answered, which led Ms. Cusano to the conclusion that the verification request was properly mailed.

When asked of whom the verification was requested, Ms. Cusano told the court that it was Dr. Kleyman. Plaintiff maintained that if three copies are printed; one copy to Dr. Kleyman, the second copy placed in the 30-day box, and the third copy in the claims file, then the Plaintiff, Andrew Carothers M.D. P.C. was not mailed a verification request. Only then did Ms. Cusano state that sometimes a forth copy is printed.

Plaintiff then asked Ms. Cusano if at the time of her employment in the processing department and now relating to the general office practice, whether she would fill in all the relevent boxes on the NF-10; she answered, “yes.” When asked if a verification request was sent and received, would those boxes be filled in on the NF-10; again she answered, “yes.” When shown that boxes No.28 (Date final verification requested) & #

29 (Date final verification received) on the NF-10 were blank she responded that the boxes were obviously left blank in error.

Within thirty days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 NYCRR 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]). Since the Court finds that the mailing of the verification request had not been proven, the 30-day period was not extended and therefore the denial was untimely on its face. Thus, Plaintiff demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period. (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3])

Moreover, even if Defendant timely issued the denial within 30 days of its receipt of the claim a proper denial of claim must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664) The denial of claim form issued by Defendant in this action, even if timely, was fatally defective in that it omitted items of requested information, and thus was incomplete (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664; Nyack Hosp. v Metro. Prop. & Cas. Ins. Co., 16 AD3d 564).

Additionally, Ms. Cusano’s testimony relating to the general office procedure regarding mailing was vague and conclusory, lacking knowledge of the procedure designed to ensure that items are properly addressed and mailed. (See Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 AD2d 374; Residential Holding Corp. v. Scottsdale Ins. Co., 286A.D. 2d 679) The [*4]portion of her testimony relating to the mailing of the NF-10 strengthened Plaintiff’s prima facie case, that the bills were actually mailed, but did nothing to establish her knowledge of the actual mailing procedures. She admitted that it was not part of her duty to oversee the mailing procedures or to ensure that a peer review report was sent together with the NF-10. Furthermore, she stated that at the time that she worked in the processing department, it was not the general office procedure to mail the peer review reports together with the NF-10s.

Moreover, Defendant’s witness Ms. Cusano could not establish that the peer review report was actually sent to Plaintiff and the NF-10 did not state that a peer review report was attached, rather it merely stated that “Based on the results of an independent peer review, medical justification and/or necessity cannot be established for the services billed. Therefore, your request for reimbursement is denied.”

Although Ms. Cusano described the general office procedure in mailing the verification request and the peer review report, she based her knowledge of the actual mailing of those documents solely on the fact that they were contained in the claim file that she reviewed for litigation purposes. This was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 [2001]). Nor did her testimony state that it was her duty to ensure compliance with said office procedures or that she had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137A, 800 NYS2d 344, 2005 NY Slip Op 50254U [App Term, 2d & 11th Jud Dists]). Inasmuch as Defendant herein failed to establish by competent proof that the verification request was mailed and that the peer review report was mailed together with the NF-10, they did not make the requisite showing to establish that a proper denial was sent. (See Gribenko v. Allstate Ins. Co., 2005 NY Slip Op 52201U; Accessible and Advance Medical P.C. v. Allstate Ins. Co., 2006 NY Slip Op 51599U)

It is apparent to the Court that there are numerous conflicting decisions relating to proper testimony regarding the standard general office procedure of mailing. It is this Courts opinion that for the sake of judicial economy and for the sake of dispensing with the constant mailing issues arising in these cases, the Insurance Companies should produce the proper witnesses from the mailing room, who could testify that it is their duty to ensure that items are properly addressed and mailed or it is their duty to ensure compliance with said general office procedures or that they have actual knowledge that the mailing procedure, as part of the standard general office procedure, is followed.

Although the Court allowed Defendant to call Dr. Hadhoud, the author of the peer review report upon which the denial was based, to testify regarding the necessity of the services rendered, the issue of medical necessity need not have been reached.

The Court finds that, as a matter of law, even if Defendant’s doctor would persuasively testify that the medical service provided lacked medical necessity, this testimony would not cure the legal insufficiency of the proffered untimely denial.

Therefore, judgment should be entered for the plaintiff in the amount of $879.73, plus [*5]interest and attorneys’ fees as provided by the Insurance Law, together with the statutory costs and disbursements in this action.

This opinion constitutes the decision of the Court. A copy of this decision will be mailed to the parties.

Dated:December 21, 2006

____________________________

Lila P. Gold, J.C.C.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant, Progressive Casualty Insurance Company, appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated December 22, 2004 [7 Misc 3d 18], as affirmed so much of an order of the Civil Court, Queens County (Markey, J.), entered March 19, 2003, as, in effect, denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, by permission, as limited by its brief, from so much of the same order as reversed that portion of the same order of the Civil Court which, in effect, granted its cross motion for summary judgment, and substituted a provision denying its cross motion.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant, Progressive Casualty Insurance Company (hereinafter Progressive), denied the claim of the plaintiff, Stephen Fogel Psychological, P.C. (hereinafter Fogel), as assignee of Kim Choy Chong (hereinafter Kim), for no-fault benefits on the ground that Kim had failed to appear for independent medical examinations (hereinafter IMEs) that Progressive demanded before [*2]Fogel submitted the statutory claim forms. Fogel brought this action seeking payment. Progressive moved for summary judgment on the ground that, by failing to appear for the IMEs, Kim had breached a condition precedent to payment on the policy. Fogel cross-moved for summary judgment on the expressly limited ground that, assuming Kim had failed to appear for the IMEs, Fogel was still entitled to payment on the policy for charges incurred before Kim’s failure to appear. The Civil Court, in effect, denied Progressive’s motion and, in effect, granted Fogel’s cross motion. The Appellate Term modified the Civil Court’s order to the extent of denying Fogel’s cross motion and otherwise affirmed the order. We affirm the order of the Appellate Term.

In support of its motion for summary judgment, Progressive was required to establish, prima facie, that it mailed the notices of the IMEs to Kim and that he failed to appear for the IMEs. Progressive failed to meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the mailings or of the nonappearances (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Given Progressive’s failure to meet its burden, denial of its motion was required without consideration of Fogel’s opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

With respect to the cross appeal, the Appellate Term correctly denied Fogel’s cross motion for summary judgment. We agree with the Appellate Term that appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [2004]). The mandatory personal injury endorsement (11 NYCRR 65.12, now 11 NYCRR 65-1.1) provides that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1).

We disagree, however, with the Appellate Term that there is a distinction between the contractual remedies depending on whether the failure to appear for IMEs occurs before submission of the claim form or after its submission. There is no basis for such a distinction, and we decline to impose one. The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_medicalexaminations.htm]). The State Insurance Department’s interpretation is entitled to deference unless “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]). This conclusion furthers, as well, the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224-225 [1986]) and preventing fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]).

Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs “when, and as often as, the [insurer] may reasonably require” (11 [*3]NYCRR 65-1.1). Thus, Fogel’s cross motion for summary judgment was properly denied. Crane, J.P., Krausman, Spolzino and Skelos, 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.), entered August 8, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which, pursuant to CPLR 3126, sought an order dismissing the action due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, plaintiff’s counsel did not assert a basis of his personal knowledge of the facts and did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; People v Kennedy, 68 NY2d 569 [1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant issued a denial of claim form, said claim denial merely established that defendant received a claim form submitted by, or on behalf of, plaintiff, but it did not concede the admissibility of the purported claim form or the facts set forth therein (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). In light of plaintiff’s counsel’s apparent lack of [*2]personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra).

Although plaintiff subsequently served an affidavit executed by its president, the affidavit, which was denominated a “Supplemental Affidavit,” was in reality a reply affidavit. Plaintiff could not establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in plaintiff’s moving papers (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D., P. C., 241 AD2d 439 [1997]; Calderone v Harrel, 237 AD2d 318 [1997]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Although defendant’s cross motion to, inter alia, compel discovery was unopposed, the discovery demands annexed to defendant’s cross motion pertained to a different action involving a different plaintiff and a different assignor. As a result, it is unclear what discovery demands defendant served in this action. Accordingly, defendant’s cross motion to, inter alia, compel discovery should be denied with leave to renew upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, 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.
Decision Date: December 15, 2006