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 (Peter Paul Sweeney, J.), entered September 14, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was 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]). The denial of claim forms, annexed to plaintiff’s moving papers, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant established that it mailed denial forms within the prescribed 30-day period (11 NYCRR 65-3.8 [c]) through the affidavit of defendant’s representative detailing the standard office procedure for such mailing, which affidavit was sufficient to give rise to the presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Attached to each denial form was a detailed peer review report which purported to be “affirmed” by defendant’s doctor pursuant to CPLR 2106. They contained a stamped facsimile of the doctor’s signature. On appeal, plaintiff objects, as it did in the court below, to the admissibility [*2]of the reports on the ground that they did not comply with CPLR 2106. In our view, under the circumstances presented, the peer review reports were not in admissible form (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632
[1971]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 102 [1965]) and, thus, defendant has failed to raise a triable issue of fact as to medical necessity. We note in passing that there is nothing in the record to indicate that the doctor himself stamped his signature. In view of the foregoing, plaintiff is entitled to summary judgment and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

In my view, the stamped facsimile of the doctor’s signature does not render his affirmed peer review reports inadmissible. General Construction Law § 46 states, “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing” (emphasis added) (see also Rulle v Ivari Intl., 192 Misc 2d 266 [App Term, 2d & 11th Jud Dists 2002]). Consequently, even if the doctor’s signature was stamped, it is sufficient to comply with CPLR 2106, which requires the statement to be “subscribed and affirmed.”

Accordingly, defendant’s submissions raise a triable issue of fact as to medical necessity, and I would vote to affirm.
Decision Date: December 15, 2006

—[*1]

Carpinello, J. Appeal from an order of the Supreme Court (Dawson, J.), entered November 18, 2005 in Clinton County, which, inter alia, partially granted defendant’s cross motion to dismiss the complaint.

Plaintiff was injured in an April 2002 automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier.^[FN*] At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action. In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages). At issue is an order of Supreme Court which, among other things, dismissed the bad faith and tort causes of action. We now affirm.

Construing the complaint in the liberal light to which it is entitled on a motion to dismiss (see CPLR 3211 [a]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we nevertheless [*2]conclude that the causes of action sounding in tort and bad faith were not properly stated. The essence of plaintiff’s dispute with defendant is the latter’s breach of contract in failing to provide her with continued no-fault benefits following her accident. Plaintiff has failed to allege or demonstrate the creation of a relationship or duty between herself and defendant separate from this contractual obligation; therefore, no independent tort claim lies (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 192-193 [2000], lv dismissed 96 NY2d 823 [2001]). Moreover, no separate cause of action exists in tort for an insured’s alleged bad faith in failing to perform its contractual obligations (see New York Univ. v Continental Ins. Co., supra; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [2005]; Royal Indem. Co. v Salomon Smith Barney, 308 AD2d 349, 350 [2003]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002], lv dismissed 99 NY2d 552 [2002]). Thus, the bad faith claim was also properly dismissed.

To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant’s conduct constitutes a tort independent of the contract (see New York Univ. v Continental Ins. Co., supra at 316-317; Logan v Empire Blue Cross & Blue Shield, supra at 194) and because her allegations do not demonstrate that defendant, in dealing with the general public, engaged in egregious or fraudulent conduct evincing “such wanton dishonesty as to imply a criminal indifference to civil obligations” (New York Univ. v Continental Ins. Co., supra at 316 [internal quotation marks and citations omitted]; accord Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]; see Varveris v Hermitage Ins. Co., 24 AD3d 537, 538 [2005]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 46 [1991], lv dismissed 78 NY2d 1072 [1991]; Hebert v State Farm Mut. Auto. Ins. Co., 124 AD2d 958, 959 [1986], lv dismissed 69 NY2d 1038 [1987]; Korona v State Wide Ins. Co., 122 AD2d 120, 121 [1986]).

To the extent preserved, plaintiff’s remaining contentions have been reviewed and rejected, including the claim that the driver of the vehicle should have been added as a party.

Cardona, P.J., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes

Footnote *: Plaintiff was not driving her vehicle at the time of the accident but rather was a front-seat passenger.

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 (Lila Gold, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claim forms, setting forth the fact and the 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 [2005]; 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, plaintiff’s moving papers were insufficient to establish the mailing of any of the appended claim forms to defendant. However, said deficiency was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and defendant received, said claim forms (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]).

This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon a lack of medical necessity, the defendant is precluded from asserting said defense (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists]; SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s NF-10 denial of claim forms merely advised plaintiff that the claims were denied pursuant to peer review reports [*2]and that a copy of these reports would be furnished upon written request. Since there is no evidence that the peer review reports were sent to plaintiff within the 30-day claim determination period, and the denials were otherwise devoid of any factual basis to support them, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], supra) and plaintiff is entitled to summary judgment upon said claims.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

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: December 13, 2006

[*1]

Civil Court of the City of New York, Queens County, December 13, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Joaquin J. Lopez of counsel), for plaintiff. Melli, Guerin & Melli, P.C., New York City (Kevin Addor of counsel), for defendant.

OPINION OF THE COURT

Bernice D. Siegal, J.

Plaintiff, a health care provider, commenced the within action to recover reimbursement from defendant insurer for services rendered to plaintiff’s assignors including Victoria Orlando,^[FN1] pursuant to New York State’s No-Fault Insurance Law. At trial, the parties stipulated to the following facts:

Plaintiff had mailed and defendant had received eight separate bills, together with an assignment of benefits, as per the following: a claim in the amount of $235.90 for services from February 17, 2004 to March 11, 2004, mailed on March 30, 2004; a claim in the amount of $67.40 for services from April 7, 2004 to April 15, 2004, mailed on May 10, 2004; a claim in the amount of $33.70 for services on April 20, 2004, mailed on June 1, 2004; a claim in the amount of $101.10 for services from May 4, 2004 to May 26, 2004, mailed on June 17, 2004; a claim in the amount of $122.13 for services from November 24, 2003 to November 26, 2003, mailed on December 24, 2003; a claim in the amount of $202.20 for services from December 3, 2003 to December 18, 2003, mailed on January 13, 2004; a claim in the amount of $235.90 for services from December 22, 2003 to January 14, 2004, mailed on February 12, 2004; and a claim for $202.20 for services from January 20, 2004 to February 5, 2004, mailed on March 10, 2004—the total sum of the above eight claims being $1,200.53.

It was further stipulated that the defendant had failed to deny any of the claims and that the claims remain unpaid. After the stipulation was duly noted for the record, both sides rested. However, despite the acquiescence by defendant as to the principal amounts due and owing, two issues of law were presented, along with a third asserted by defendant in its posttrial memorandum of law: (1) what are the statutory attorney’s fees due plaintiff; (2) what is the statutory interest due plaintiff; and (3) when does the statutory interest accrue.

The relevant provisions governing interest, under the relevant no-fault regulations, are 11 NYCRR 65-3.8 (a) (1) and 65-3.9 (a) and (c).

11 NYCRR 65-3.8 (a), as is pertinent hereto, provides that “(1) No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim . . .  .”

Section 65-3.9 (a) provides as follows:

“All overdue mandatory and additional personal injury protection benefits due an . . . assignee shall bear interest at a rate of two percent per month, calculated on a pro rata basis using a 30-day month. When payment is made on an overdue claim, any interest calculated to be due in an amount exceeding $5 shall be paid to the . . . applicant’s assignee without demand therefor.”

Section 65-3.9 (c) provides, as is relevant hereto, that “[i]f an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form . . . , interest shall not accumulate on the disputed claim . . . until such action is taken.”

The relevant provisions governing attorney’s fees, under the relevant regulations, are the following.

11 NYCRR 65-3.10, which provides, in pertinent part, as follows:

“(a) A applicant or an assignee shall be entitled to recover their attorney’s fees, for services necessarily performed in connection with securing payment, if a valid claim or portion thereof was denied or overdue. . . . If such a claim was overdue but not denied, the attorney’s fee shall be equal to 20 percent of the amount of the first-party benefits and any additional first-party benefits plus interest payable pursuant to section 65-3.9 of this subpart, subject to a maximum fee of $60.”

However, pursuant to Insurance Law § 5106 (a), such attorney’s fees are “subject to limitations promulgated by the superintendent [of the New York State Department of Insurance].” The regulation setting forth those limitations is 11 NYCRR 65-4.6 which, as is relevant to the matter at bar, provides that:

“(c) Except as provided in subdivisions (a) and (b) of this section [those sections dealing with claims that were neither denied nor overdue or which were resolved prior to arbitration], the minimum attorney’s fee payable pursuant to this subpart shall be $60 . . .

“(e) . . . the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the . . . court, subject to a maximum fee of $850.”

The dispute between the parties is not so much as to the applicability of the foregoing provisions, but rather the manner in which they are to be applied: the plaintiff provider contending that the statutory interest and attorney’s fees awarded should be based upon each individual claim as submitted through an NF-3 proof of claim; the defendant insurer arguing that the measure of the statutory interest and attorney’s fees be determined by the aggregate of bills which are the subject of the within no-fault action and that interest should be calculated from the date of the commencement of the arbitration or lawsuit. [*2]

Proceeding backwards from the third issue presented—when does the interest accrue—the court acknowledges case law wrestling with the interpretation of 11 NYCRR 65.15 (h) (3) (the predecessor to section 65-3.9 [c]), such as the meaning of “applicant” vis-à-vis an “assignee” provider and whether a distinction should be made between timely denials and late denials (see Tsai Chao v Country-Wide Ins. Co., 11 Misc 3d 1090[A], 2006 NY Slip Op 50794[U] [Nassau Dist Ct 2006]; East Acupuncture, P.C. v Allstate Ins. Co., 8 Misc 3d 849 [Civ Ct, Kings County 2005]). However, the patently clear and unambiguous language in section 65-3.9 (c) referring to “the receipt of a denial of claim form” as a key element in determining the date of accrual thereunder shows the defendant’s argument to be wholly disingenuous, especially in view of the fact that defendant had stipulated at trial that there were no denials. Clearly, then, the defendant’s contention on this issue is totally without merit and whatever interest accruing in this case is to be calculated, pursuant to 11 NYCRR 65-3.8, from 30 days after receipt of the particular claim.

With respect to the other issues presented, the court notes that the language of the aforementioned provisions refer to “claim” in the singular. However, the question remains whether a “claim” refers to each bill submitted or, as argued by the defendant, to the aggregate of the bills for which a provider seeks reimbursement through a single court action.^[FN2]

With respect to interest, the clear implication found in appellate case law in the Second Department is that statutory no-fault interest is payable as per each claim as per each particular NF-3 submitted for payment (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2d Dept 2006]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [2d Dept 1994]). Furthermore, this court finds such interpretation to be the most logical and reasonable, especially where, as here, the plaintiff’s complaint seeks to recover upon several different claims, each of which has a different date upon which interest begins to accrue (i.e., 30 days from receipt of the particular NF-3).

The case law, however, regarding the manner in which the attorney’s fees provisions are to be applied appears less clearly settled. The Appellate Division in Smithtown Gen. Hosp. v State Farm (supra), in reversing a decision regarding attorney’s fees, held that the lower court “incorrectly interpreted the $850 ceiling to apply to the entire action, rather than to each claim, and failed to set a minimum fee of $60 per claim” (207 AD2d at 339). Following the Smithtown case insofar as awarding attorney’s fees for each claim set forth in separate causes of action, as opposed to the entire action, are the decisions in Willis Acupuncture, P.C. v Government Empls. Ins. Co. (6 Misc 3d 1002[A], 2004 NY Slip Op 51702[U] [Civ Ct, Kings County 2004]) and A.M. Med. Servs. P.C. v New York Cent. Mut. Fire Ins. Co. (NYLJ, July 24, 2006, at 25, col 1 [Civ Ct, Queens County]).

On the other hand, the court notes a recent decision holding contra to Smithtown—Marigliano v New York Cent. Mut. Fire Ins. Co. (13 Misc 3d 1079 [Civ Ct, Richmond County 2006]), citing an October 8, 2003 opinion letter issued by the New York State Department of Insurance (which opinion letter was also cited by the defendant in its memorandum). The court found such opinion not inconsistent with the Smithtown decision which dealt with multiple claims of several assignors, rather than of one assignor, as is the case herein and in Marigliano. The opinion letter states that

“[the] total amount [of attorney’s fees] is derived from the total amount of individual bills disputed in . . . a court action . . . , regardless of whether one bill or multiple bills are presented as part of a total claim for benefits, based upon the health services rendered by a provider to the same eligible insured” (Ops Gen Counsel NY Ins Dept No. 03-10-04 [2003]).

Courts have recognized opinions of governmental agencies responsible for the administration of a statute, such as opinion letters from the New York State Department of Insurance, to be entitled to great deference

“[w]here the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom . . . [unless] the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent [in which case] there is little basis to rely on any special competence or expertise of the administrative agency and its interpretative regulations are therefore to be accorded much less weight.” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; see also Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303 [2005]; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675 [3d Dept 1981].)

The same principle has similarly been applied to an agency’s interpretation of its own regulations (see Matter of Howard v Wyman, 28 NY2d 434 [1971]; Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499 [2005]; Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337 [2004]; Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 73 [App Term, 2d & 11th Jud Dists 2005]). However, “[A]lthough the interpretation of regulations made by the agency responsible for their administration is generally to be accorded deference, an agency is not thereby freed of the obligation to read those regulations reasonably and rationally” (Matter of Mutual Redevelopment Houses v New York City Water Bd., 279 AD2d 300, 301 [1st Dept 2001]; see also Howard v Wyman, supra; Kurcsics v Merchants Mut., supra; KSLM-Columbus Apts. v New York State Div. of Hous. & Community Renewal, supra; 427 W. 51st St. Owners Corp., supra).

Notwithstanding the Marigliano court’s well-written decision in support of the October 8, 2003 opinion letter, this court respectfully disagrees and finds the opinion letter unpersuasive for several reasons.

Firstly, the court finds that, upon reading the opinion letter in question, there is nothing contained therein indicative of the Insurance Department’s involvement in issuing such opinion of “knowledge and understanding of underlying operational practices or [entailing] an evaluation of factual data and inferences to be drawn therefrom . . . [or reliance] on any special competence or expertise” rather than being a matter of “pure statutory reading and analysis, [which in the latter instance is] to be accorded much less weight” (Kurcsics, supra at 459).

Secondly, whether or not involving a matter reliant upon the agency’s expertise, the court finds the interpretation offered by the defendant herein, as well as by the Superintendent in the opinion letter and by the court in Marigliano, to be unreasonable. In the letter in question, the [*3]term “total,” a word not found in section 65-4.6 (e), is inserted as a qualifier of the term “first-party benefits” without any clear and apparent explanation for doing so, aside from creating a basis for the Department’s interpretation. Perhaps the most compelling argument against the supposed “reasonableness” of such interpretation, making the awarding of statutory attorney’s fees applicable to the aggregate of claims in a no-fault action, whether or not pertaining to only one or more than one assignor, is that it runs counter to a bedrock principle of the No-Fault Law itself, i.e., Insurance Law article 51, the Comprehensive Motor Vehicle Insurance Reparations Act, specifically, in Insurance Law § 5106 (a): “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred” (emphasis added). As the Court of Appeals has expressed it, “the goals of the speedy payment objective of the No-Fault Law . . . a driving force behind . . . the no-fault . . . insurance laws, focus on avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims.” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 284 [1997]; see also Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986].)

The interpretation sought by the Superintendent also would force a provider to wait until all treatment is concluded before billing an insurance company—an interpretation plainly running afoul of other insurance regulations. As was also said by the court in A.M. Med. Servs. (supra at 25, col 1),

“such standard [proffered by the defendant herein and the Department of Insurance] not only flies in the face of the regulatory policy of promoting prompt payment of claims, but also provides carriers with a disincentive to settlement, and encourages the undesirable effect of increasing the existing tsunami that is pending no-fault litigation in this county.”

Moreover, there is the unambiguous, explicit language of the Appellate Division in the Smithtown decision. (See Visiting Nurse Serv. of N.Y., supra at 506; Oberly v Bangs Ambulance, 96 NY2d 295 [2001].) This court cannot ignore the plain fact that the statutory “proof of claim” form refers to an NF-3 (or functional equivalent) which, while often enumerating a number of medical services provided over more than one date, relates to a single bill, there also often being more than one NF-3 upon which a no-fault complaint seeks recovery. The court also finds significant the fact that, despite years of opportunity to advocate the amending of the no-fault regulations set forth above to either clarify or redefine the term “claim” as it relates to the application of interest and attorney’s fees, the Insurance Department has failed to do so, while a number of no-fault provisions have been amended (e.g., 11 NYCRR 65-3.10^[FN3] and 65-4.6^[FN4]— the very subject of the opinion letter—have, together, been amended several times since 2001). [*4]

Therefore, this court, following Smithtown and its progeny, finds that the statutory attorney’s fees shall be awarded as per each NF-3 herein, rather than upon the total principal awarded by the court.

Accordingly, judgment is awarded to plaintiff provider in the principal aggregate amount of $1,200.53, with interest accruing on each of the eight claims at the rate of 2% per month in accordance with section 65-3.9 (a), each said amount of interest accruing 30 days from the date of submission of each such claim.

Plaintiff shall further be awarded attorney’s fees as to each NF-3 herein pertaining to assignor Victoria Orlando, equal to 20% of the amount set forth in each such NF-3 plus interest, provided that each such fee is not less than the statutory minimum of $60 nor in excess of the statutory maximum of $850.

Footnotes

Footnote 1: Prior to trial, the claims with respect to all assignors other than Victoria Orlando had been settled between the parties.

Footnote 2: It is worth noting that the defendant argues in favor of aggregating the claims without any justification except it would have to pay more for interest and attorney’s fees, but the court notes that the bills themselves represent, with the exception of one NF-3, bills for services rendered over a period of a month and, nothing to the contrary in defendant’s memorandum, appear to be a reasonable and rational billing practice.

Footnote 3: Section filed Aug. 2, 2001; amendment filed Jan. 17, 2003, eff Feb. 5, 2003 (amended [a]).

Footnote 4: Section filed Aug. 2, 2001; amendments filed Apr. 11, 2002 as emergency measure; July 9, 2002 as emergency measure; Oct. 4, 2002 as emergency measure; Nov. 27, 2002 as emergency measure; Jan. 17, 2003 as emergency measure; Jan. 17, 2003, eff. Feb. 5, 2003 (amended [b], [e]).

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 (Lila Gold, J.), entered November 7, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York,
49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In this action to recover assigned, first-party no-fault benefits, plaintiff’s moving papers did not establish that plaintiff ever submitted the subject claim form to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent plaintiff’s counsel submitted a reply affirmation in which counsel attempted to introduce a purported verification request allegedly sent by defendant to plaintiff in an attempt to demonstrate, for the first time, a critical element of plaintiff’s prima facie case, such evidence was neither in admissible form nor properly before the court (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D.,
P.C., 241 AD2d 439 [1997]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). As a result,plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., 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 (Eileen Nadelson, J.), entered September 9, 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 forms 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]). A plaintiff ordinarily establishes the “submission” of the claim forms by demonstrating proof of proper mailing, which gives rise to the presumption that the claim forms were 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 was insufficient to establish that plaintiff mailed the claims 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 claims were actually mailed to defendants and, as such, has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th [*2]Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its moving papers two delay letters from defendant is unavailing since said letters did not specifically refer to the claims at issue in that they did not set forth the amounts of the claims. Accordingly, 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.
Decision Date: December 12, 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, Queens County (Bernice Daun Siegal, J.), entered September 30, 2005. The order denied plaintiff’s motion for partial summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment. Three of plaintiff’s five claim forms indicate that the treating health care providers were independent contractors. Where a billing provider seeks to recover no-fault benefits for services which were not
rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the health care services rendered within the meaning of 11 NYCRR 65-3.11 (a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (see Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d & 11th Jud Dists]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). The [*2]remaining two claim forms have “N/A” typed in the box in which the business relationship of the treating provider was to be provided. Such lack of specificity does not establish plaintiff’s prima facie entitlement to summary judgment as a matter of law inasmuch as it fails to exclude all triable issues of fact. Accordingly, plaintiff’s motion for partial summary judgment was properly denied.

We pass on no other issue.

Pesce, P.J., and Belen, 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 BELEN, JJ.
V.S. MEDICAL SERVICES, P.C.
A/A/O MIRIAM MALDONADO,
Appellant,

-against-

NEW YORK CENTRAL MUTUAL FIRE INSURANCE CO.,
Respondent.

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 11, 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 (Peter Paul Sweeney, J.), entered January 31, 2005. The order denied the petition to vacate the master arbitrator’s award.

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

Avenue N Medical, PC (Avenue) initiated this compulsory arbitration proceeding against New York Central Mutual Fire Insurance Company to recover $2,167.07 in first-party no-fault benefits for medical services rendered to its assignor for injuries he
sustained in an automobile accident. Following an arbitration hearing, by award dated February 18, 2004, the arbitrator denied Avenue’s claim, which decision Avenue appealed to the master arbitrator. By award dated August 13, 2004, the master arbitrator affirmed the arbitrator’s award. Avenue then commenced the instant special proceeding to vacate the award of the master arbitrator. By order entered January 31, 2005, the court below denied the petition.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator (see e.g. Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d [*2]442 [1980]). Consequently, 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 note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 11, 2006

[*1]

Supreme Court, Appellate Term, Second Department, December 11, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Romagnolo & Cambio, LLP, Staten Island (Michael Gullo of counsel), for respondent.

{**14 Misc 3d at 95} OPINION OF THE COURT

Memorandum.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $357.94, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on plaintiff’s remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was 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 2003]). Defendant’s failure to timely object to the completeness of the claim forms or seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 [*2]AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Defendant’s remaining contentions regarding plaintiff’s alleged failure to establish its prima facie entitlement to summary judgment similarly have no merit. The burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).{**14 Misc 3d at 96}

A review of the record indicates that defendant made verification requests of the assignor seeking chiropractic and orthopedic independent medical examinations (IMEs) by letters dated May 22 and 23, 2002, which was prior to its receipt of plaintiff’s $357.94 claim on May 30, 2002. Consequently, these were preclaim verification requests and the tolling provisions of the insurance regulations do not apply (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s July 11, 2002 denial of said claim was untimely (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). Defendant, however, timely denied, on the basis of the assignor’s failure to attend the preclaim IMEs, the $101.07 claim which it received on June 19, 2002 and denied on July 9, 2002, the $67.38 claim which it received on July 1, 2002 and denied on July 9, 2002, and the $67.38 claim which it received on August 5, 2002 and denied on August 30, 2002 (see e.g. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51316[U] [App Term, 2d & 11th Jud Dists 2005]), and established such failure in admissible form in opposition to plaintiff’s motion for summary judgment. Consequently, the presumption of medical necessity which otherwise attached to these claim forms was rebutted and defendant raised a triable issue of fact as to the medical necessity of the services rendered (see e.g. S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists 2004]).

We are aware that defendant’s agent sent a letter to plaintiff dated June 5, 2002 in which it stated that it had “received your [$357.94] bill . . . [and] [t]here will be a delay in our consideration of the bills . . . because . . . the claimant involved is currently scheduled for independent medical examinations.” The agent also sent letters to the assignor dated June 11 and 14, 2002 by which it, respectively, reminded the assignor of the chiropractic IME scheduled for June 18, 2002 and the orthopedic IME scheduled for June 24, 2002. The assignor was apparently unable to attend the orthopedic IME scheduled for June 24, 2002, and contacted defendant’s agent. By letter dated June 18, 2002, defendant’s agent acknowledged the assignor’s request to reschedule the orthopedic IME due to his work schedule, and rescheduled said IME to July 2, 2002. By another letter dated June 18, 2002, defendant’s agent acknowledged defendant’s{**14 Misc 3d at 97} request to reschedule the chiropractic IME and rescheduled said IME to July 1, 2002. It is uncontroverted that the assignor did not attend the rescheduled IMEs.

Even were we to deem the letter of June 5, 2002 to be a valid postclaim request for additional verification pursuant to 11 NYCRR 65-3.5 (b), said request would not have tolled the time which defendant had to pay or deny the claims since defendant did not make follow-up verification requests pursuant to 11 NYCRR 65-3.6 (b) after the assignor failed to attend the July [*3]IMEs. We note that although the assignor apparently contacted defendant’s agent on July 5, 2002 “to advise that he was unable to attend the [previously scheduled] appointment[s],” he was not allowed to reschedule them again. Defendant subsequently issued denials, dated July 9, 2002, based on the assignor’s failure to attend the July IMEs.

Furthermore, unlike our dissenting colleague, we do not view the mutually agreed upon rescheduling of the initial IMEs, from June 18, 2002 to July 1, 2002 and from June 24, 2002 to July 2, 2002, as the equivalent of a failure to supply “any requested verification[]” (see 11 NYCRR 65-3.6 [b]). We, therefore, do not deem the rescheduled July IMEs as follow-up requests.

In the court below, plaintiff’s opposition to defendant’s cross motion to compel depositions was only on procedural grounds. Therefore, plaintiff’s contention that defendant’s cross motion should be denied on the merits because it was not entitled thereto was improperly raised for the first time on appeal, and will not be considered by this court (see e.g. First Nationwide Bank v Goodman, 272 AD2d 433 [2000]). Plaintiff’s remaining contentions have no merit.

Accordingly, plaintiff is awarded partial summary judgment in the principal sum of $357.94, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on plaintiff’s remaining claims.

Golia, J. (concurring in part and dissenting in part): I concur with the findings of my colleagues to the extent that they find defendant timely denied plaintiff’s $67.38, $101.07 and $67.38 claims. I also agree that defendant’s proof as to mailing of the various notices was sufficient. However, I disagree with and dissent from their finding that defendant’s denial of the $357.94 claim, which it received on May 30, 2002 and denied on July 11, 2002, was untimely.{**14 Misc 3d at 98}

An examination of the record in this case will reveal that this defendant did everything conceivable to meet and exceed the requirements and the spirit of the no-fault regulations.

Defendant, in accordance with the regulations, sent a notice for an independent medical examination (IME) to the eligible injured person on May 22, 2002 directing that he appear for IMEs on June 18, 2002 and June 24, 2002. This notice was sent prior to plaintiff’s filing this claim, which is permissible pursuant to the regulations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]).

It is necessary to briefly examine the importance which the majority places on the fact that the initial notice for an IME was sent prior to the claim being filed. The majority in Fogel created, what I consider, a “forced” and unnecessarily complex interpretation of a very simple regulation. 11 NYCRR 65-1.1 states: “The eligible injured person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (emphasis added).

Nevertheless, Fogel created a bright-line distinction between an IME request that was sent before a claim was filed (preclaim) and one that was requested after the claim was filed (postclaim). Having invented this dichotomy, the Fogel majority held that if the assignor failed to appear at a preclaim IME, then such failure established, in itself, an issue of fact as to medical necessity. It further held that if the assignor failed to appear at a postclaim IME and the defendant had followed the protocols set forth in the regulations, then summary judgment would be granted to the defendant.

In the Fogel case, I dissented and found that the regulations do not establish such a distinction. In fact it is interesting to note that the Appellate Term of the First Department in Inwood Hill Med., P.C. v General Assur. Co. (10 Misc 3d 18, 20 [2005]) acknowledged and cited the Fogel decision but found that “we decline to follow the majority’s holding and find more persuasive the conclusion reached by . . . [the] dissent.”

Notwithstanding my belief that there should not be any distinction between preclaim and postclaim requests for an IME, I nevertheless find here that defendant has properly and timely met the requirements of the regulations, even as defined by the majority in Fogel. As is tacitly addressed in the majority’s decision, defendant’s “delay letter” of June 5, 2002 should serve as{**14 Misc 3d at 99} a postclaim verification request inasmuch as it contains all the elements required.

Plaintiff’s assignor did not appear for those “first” scheduled dates. Defendant, at assignor’s request, rescheduled the IMEs for July 1 and July 2, 2002 and then sent letters reminding the assignor of the mutually agreeable dates of the second appointments for IMEs. [*4]The assignor, nevertheless, failed to appear on either July 1st or July 2nd and defendant thereupon sent a timely denial (NF-10). I note that the assignor contacted defendant immediately prior to the first scheduled IME and requested rescheduling. There was no such request for a rescheduling of the July appearances; the assignor simply failed to appear. It was only after the assignor failed to appear on July 1st and then failed to appear on July 2nd that he contacted the defendant on July 5th to discuss rescheduling.

Consequently, even if one were to discount the June 18th and June 24th IME appointments, it would be absurd to require defendant to serve a second set of notices for IMEs when the original dates were previously rescheduled at the assignor’s request and upon which he intentionally failed to appear and failed to notify the defendant that he would be unable to appear.

If one were to follow the reasoning of the majority, then defendant would have been well served to ignore the assignor’s request for rescheduling of the June dates. Thereafter, upon the assignor’s failure to appear, the defendant would then send a “follow-up” request setting a date of defendant’s choosing and thereby inconvenience the assignor, and upon the assignor’s failure to appear, defendant could then “legitimately” issue an NF-10 denial of claim.

In the matter before us, defendant sent its request for an IME on May 22, 2002. Plaintiff, on May 28, 2002, filed this disputed claim for $357.94. On June 11, 2002 and on June 14, 2002, both dates well within the 30-day claim period, defendant sent “reminder” letters to the eligible injured person (assignor) which noticed him for examinations on June 18, 2002 and June 24, 2002. On June 17, 2002 defendant received requests to adjourn both June IMEs and rescheduled them to the mutually agreed upon dates of July 1 and 2, 2002. (See affidavit of Jeffrey Mehl, Executive Director HVMC, exhibit H, ¶ 5 of defendant’s cross motion.)

In addition, on June 5, 2002, defendant sent a “delay letter” to plaintiff (assignor) which stated specifically that the{**14 Misc 3d at 100} claim was being delayed due to a pending demand for an IME of plaintiff’s assignor. Certainly this postclaim “delay letter” must serve as a functional equivalent of an additional verification request pursuant to the regulations inasmuch as it specifically informed the plaintiff of what was required in order to complete the claim filed. In fact, the majority of the court then sitting in Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]) held that a verification request will not serve to toll the 30-day period if it merely informs that the claim is delayed but fails to specify the particular information sought. Since this notice informs the plaintiff, with specificity, of the information sought, it is a functional equivalent and therefore qualifies as an additional verification request which in turn tolls the 30-day period. To me, that is substance over form.

I note that plaintiff’s attorney’s affirmation states at page 5 that “there are no notices . . . calling for any verification or cooperation whatsoever.” He claims that the assignor has no obligation to open any mail from an unknown source and since the notice did not come from the insurance company, it has no significance. How counsel can speak for the assignor who is not his client and without an affidavit in support of his assertions is beyond me. Clearly it has no significance and should be discounted.

Despite defendant’s well demonstrated willingness to accommodate the assignor, that individual willfully failed to appear either on July 1 or July 2, 2002. Nor did he request an [*5]adjournment prior to July 1, 2002. The fact that he requested yet another opportunity to appear for these IMEs was clearly a red herring used to give the assignor additional time to build up his no-fault claim and cost the defendant additional funds for “no-show” medical appointments.

There must be an end. The assignor’s failure to appear at either of the two appointments that he scheduled certainly constitutes a reasonable end.

Here, defendant used every reasonable means to assure compliance with the regulations and to give proper notice to plaintiff and its assignor. Indeed, it was only after the assignor failed to appear on the adjourned dates, the second of which was requested by the assignor himself, that the defendant sent an NF-10 denial of claim.

Clearly, in light of those delay letters and reminder notes sent by the defendant, the NF-10 denial of claim form sent on July{**14 Misc 3d at 101} 11, 2002 was timely and I would affirm the order of the court below.

Pesce, P.J., and Rios, J., concur; Golia, J., concurs in part and dissents in part in a separate memorandum.