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 August 31, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie case by presenting proof that it submitted statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the
instant case, the affidavit executed by plaintiff’s corporate officer failed to establish submission of the claim form. Plaintiff’s assertion that defendant’s letter, annexed to the moving papers, acknowledging receipt of a claim constitutes an admission that the subject claim form was received, is without merit. Inasmuch as the letter does not set forth the amount sought by the claim form which defendant received, plaintiff did not establish its prima facie entitlement to summary judgment since it did not adequately establish that it submitted the subject 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]). Accordingly, the burden never shifted to defendant (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Liquore v Tri-Arc Mfg. Co., 32 AD3d 905 [2006]). [*2]

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 8, 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 (Gerald Dunbar, J.), entered May 2, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and
the amount of the loss sustained, and that payment of no-fault benefits is overdue (see 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]). Herein, plaintiff established submission of its claim by annexing defendant’s denial of claim form, dated July 25, 2003, to its moving papers which states that defendant received said claim on June 30, 2003 (see e.g. Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists]). Plaintiff asserts that defendant’s denial of claim form was insufficient in that it did not explicitly set forth the reason for the denial.

Defendant denied plaintiff’s claim on the basis of a peer review finding a lack of medical [*2]necessity. Upon a review of the denial and affirmed peer review report annexed to defendant’s opposition papers, we find that defendant “fully and explicitly” set forth the reasons for the denial (see e.g. Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U], supra; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). Plaintiff’s remaining contentions regarding the denial lack merit.

Accordingly, we find that defendant raised a triable issue of fact and that the court below properly denied plaintiff’s cross motion for summary judgment.

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.
DELTA DIAGNOSTIC RADIOLOGY, P.C.
A/A/O AURELIO RONDON,
Appellant,

-against-

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Respondent. [*3]

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 8, 2006

[*1]

Supreme Court, Appellate Term, Second Department, December 8, 2006

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**14 Misc 3d at 75} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, affirmed without costs.

In an action to recover first-party no-fault benefits for health care services provided to an assignor, a plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and amount of the loss sustained and that payment of no-fault benefits is overdue (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]). While in its motion papers, plaintiff proved that it prepared a claim setting forth the fact and amount of the loss, plaintiff’s proof that it submitted the claim to defendant was inadequate. We have held that a no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer’s denial of claim form wherein the insurer acknowledges the claim’s receipt (e.g. Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists 2006]). Where, as here, plaintiff failed to annex the defendant’s denial of claim form to its motion papers, and the defendant annexes the denial of claim form to its opposing papers, the deficiency is similarly cured.

We are aware of the well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of [*2]law requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, it has been said that where a movant fails to demonstrate its entitlement to judgment as a matter of law, it is unnecessary for the court to even consider{**14 Misc 3d at 76} the sufficiency of the opposition papers (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). While opposition papers should not be reviewed for the sufficiency of the opposition, i.e., in order to determine whether a triable issue of fact has been raised, since in such cases the burden of proof will not have shifted to the party opposing the motion (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers. Where the missing elements of a movant’s prima facie showing of entitlement to judgment as a matter of law (such as here, plaintiff’s submission of the claim forms) are supplied in the opposition papers, it is our opinion that the court may, in its discretion and pursuant to its power to search the record (CPLR 3212 [b]), find that a prima facie case exists, thereby shifting the burden of proof, notwithstanding the evidentiary deficiencies in the moving papers. Indeed, CPLR 3212 (b) authorizes the court to grant a motion for summary judgment, if upon “all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (emphasis added). The discretion of the court to review the opposition papers may be viewed as akin to the court’s discretionary power to grant reverse summary judgment in an appropriate case. This discretion exists both in the motion court and, in the first instance, in an intermediate appellate court (see e.g. Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112 [1984]). Thus, the opposition papers may, in the court’s discretion, be perused to determine whether the record as a whole establishes the movant’s prima facie entitlement to judgment. Were we to interpret the law otherwise, a court could not, for example, grant summary judgment to a plaintiff whose moving papers are insufficient, even where there has been a concession of liability in defendant’s opposition papers.

Accordingly, where a movant has not made out a prima facie entitlement to summary judgment, while a motion court need not consider the opposition papers, it is not necessarily an improvident exercise of discretion for it to do so in order to determine whether the record as a whole will establish a party’s prima facie case. In the instant case, we exercise our discretion to search the record, as we have done in prior cases (see e.g. Dilon Med. Supply Corp. v State Farm Mut. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51344[U] [App Term, 2d & 11th Jud{**14 Misc 3d at 77} Dists 2006]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51189[U] [App Term, 2d & 11th Jud Dists 2006]; Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists 2006]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]; 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 2006]), and find that plaintiff’s prima facie entitlement to summary judgment was established, thereby shifting the burden to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., [*3]68 NY2d 320, 324 [1986]).

Defendant’s denial was untimely (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), and defendant failed to establish a tolling of the statutory 30-day claim determination period (New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]) by proof that it issued a proper and timely verification request (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). Defendant alleged that it requested that assignor submit to an examination under oath (EUO) in December 2001. However, “the insurance regulations in effect prior to April 5, 2002 did not provide for EUOs as a form of verification” (A.M. Med. Servs., P.C. v Nationwide Mut. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51425[U] [App Term, 2d & 11th Jud Dists 2006]; see also King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists 2004]), and the absence of an EUO provision in the former verification scheme “may [not] be remedied by reference to policy provisions requiring that an insured cooperate with the insurer’s investigation of a claim, even if a clause therein explicitly provides for cooperation in that form” (Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

While the untimely denial did not preclude defendant from interposing the defense that the assignor’s injuries did not arise from a covered incident, i.e., an incident alleged to have been staged to defraud defendant (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]; see also State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]), it{**14 Misc 3d at 78} remained defendant’s burden to demonstrate “a founded belief” that the injuries did not result from an insured event (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and we agree with the court below that defendant failed to establish a triable issue of material fact as to fraud. The facts set forth in the affirmation of defendant’s counsel were without probative value as she had no personal knowledge of those facts (e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [2004], supra), and none of the attached documents are sworn or supported by an affidavit by someone alleging personal knowledge of their preparation (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]; see Rue v Stokes, 191 AD2d 245, 246 [1993]). In his affidavit, defendant’s claims representative likewise asserted no personal knowledge of defendant’s investigation into the incident and even if this case presented the “certain circumstances” meriting consideration of proof that would be inadmissible at trial (Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]), the facts established little more than “unsubstantiated hypotheses and suppositions” (Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]), a “legally insufficient [basis] to support [a] defendant’s fraud allegation” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1-2 [App Term, 2d & 11th Jud Dists 2004]).

Golia, J. (dissenting and voting to reverse the order, insofar as appealed from, and denying plaintiff’s motion for summary judgment). Initially, I note with dismay the finding of the motion court. That determination is patently incorrect. The determination, which granted plaintiff summary judgment, stated that “plaintiff proved that it submitted a timely and proper notice of claim pursuant to the No-Fault [*4]statute.” With regard to that fact, the Appellate Term unanimously disagrees and finds that plaintiff failed to prove that it submitted the claim at all.

I further note, although not addressed by the majority, that the notice of claim which plaintiff provided was not a “proper notice of claim pursuant to the No-Fault statute.” The majority responds that due only to defendant’s failure to request a timely verification or raise a defense as to the propriety of the claim form, the defendant was precluded from raising those issues. I submit that a defendant’s failure to contest improper forms is not the same as a finding that the forms were proper.

My dissent, however, is predicated primarily upon the inappropriate expansion of the majority’s willingness to assist the plaintiff to establish its prima facie case in this no-fault matter.{**14 Misc 3d at 79}

The plaintiff here did not even meet the relaxed standard of making out a prima facie case that was first enunciated by the Appellate Term in a previous no-fault proceeding (see 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]) and its progeny. That case held that a health care provider need only prove that it submitted a properly completed claim form to establish its prima facie entitlement to summary judgment. It need not establish any medical necessity for providing the medical supplies or services performed. Indeed, in the event the defendant is precluded from raising a defense as to the propriety of the claim form in whole or in part, the plaintiff is then not even required to affirmatively establish that the claim form was “properly completed.”

In supporting its claim that the Appellate Term has the authority to search the record in order to find missing elements to establish a prima facie case in plaintiff’s motion, the majority cites to CPLR 3212 (b); specifically, that the motion can be granted upon “all the papers and proof submitted” (emphasis added). They did not include the first two sentences of that section which read:

“A motion for summary judgment shall be supported by affidavit[s], by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts . . . and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.”

When read together, one should conclude that this section imposes upon the movant a minimum requirement in order to establish a prima facie case. I emphasize that a motion for summary judgment must be supported within the four corners of the motion itself. To lessen this burden, as the majority now does in this no-fault proceeding, I submit, is unsupported in the law.

There is an Appellate Division, First Department case, Bowery Sav. Bank v 130 E. 72nd St. Realty Corp. (173 AD2d 364 [1991]), which “appears” to support the majority’s contention that a court may grant summary judgment upon information in the record that was not provided by the moving party. However, a careful reading of that case and the record on appeal reveals that this issue was never briefed. More importantly, it was not{**14 Misc 3d at 80} even considered by the trial court. [*5]In fact the unpublished decision from the Supreme Court cites to Alvarez v Prospect Hosp. (68 NY2d 320 [1986]) for the proposition that the initial burden lies upon the movant. That court then goes on to indicate that the defendant does not dispute certain issues but fails to raise sufficient allegations to raise a triable issue of fact.

At no point does the Supreme Court or the Appellate Division assert that it has the right to search the record in order to bolster the movant’s applications. There is clearly a distinction between discounting a technical failure that is not at issue and, on the other hand, combing through the record in order to search for missing elements of plaintiff’s prima facie case.

Until now, a plaintiff did, at least, have the initial burden to prove that the claim form was actually sent to the defendant. The Appellate Term has long held that such proof could be established by annexing the defendant’s denial form thereby proving that the claim was received. My colleagues now no longer require that plaintiff establish a prima facie case within the four corners of its motion as long as the majority can find the proof upon a complete search of the record.

Although the majority acknowledges the “well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985])” (at 75), it nevertheless decided to search this record here and find that a prima facie case exists.

The majority then cites to the Court of Appeals case of Alvarez v Prospect Hosp. (68 NY2d 320 [1986]) which cites Winegrad, and which substantially stands for the same proposition. Nevertheless, the majority asserts that “this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers” (at 76). What they fail to explain is how they reached that conclusion given the following language in Alvarez: “As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law . . . Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez, 68 NY2d at 324 [emphasis added]).{**14 Misc 3d at 81}

For the majority now to say that Alvarez does not preclude them here from reviewing the opposition papers and finding a prima facie case for the movant upon the entire record is, in my opinion, misrepresenting the clear language enunciated by the Court of Appeals. That Court unequivocally stated that such failure mandates a denial of the motion despite the sufficiency of the opposing papers, a ruling which this court is duty bound to follow.

Finally, I submit, the majority engages in an argument of pure sophistry. It asserts that the Appellate Term has the authority to search the record and grant reverse summary judgment even in the absence of a cross motion or an appeal seeking such relief. I agree. It goes on to conclude that the Appellate Term must therefore have the authority to search this record in order to grant summary judgment even in the absence of the movant making out its prima facie case. I [*6]do not agree.

There is no question that this court has the authority to search the record and grant reverse summary judgment (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). That does not mean, however, that the Appellate Term can use that authority to correct this no-fault movant’s failure to establish its prima facie entitlement to judgment. In my view, the majority’s decision would permit a trial court to exercise its discretion in an open and relaxed manner and would, consequently, result in varied and conflicting decisions based upon the same or similar facts. The result can only lead to confusion and increased appellate litigation. Clearly, in no-fault matters, where the Appellate Term has provided the plaintiff with the simplest of requirements to establish a prima facie case as a matter of law, it now holds that even less is required.

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

[*1]

District Court of Suffolk County, Third District, December 7, 2006

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Michelle R. Kolodny of counsel), for defendant. Edward Shapiro, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiff.

OPINION OF THE COURT

C. Stephen Hackeling, J.

It is ordered that this application by the defendant for summary judgment dismissing the plaintiff’s complaint is granted, and the plaintiff’s cross motion for summary judgment is denied as moot.

This is an action for first-party benefits (recovery of unpaid health services bill, statutory interest and statutory attorney’s fees) brought pursuant to the No-Fault Insurance Law by a health services provider who rendered medical services to a patient in exchange for the patient’s rights to collect no-fault benefits.

On a motion for summary judgment the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (Andre v Pomeroy, 35 NY2d 361 [1974]). It is incumbent on the proponent of the motion to set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Upon the proponent making out a prima facie case, the burden shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

Issue Presented

Does the production of an electronic signature assignment of benefits and NF-3 claim form in response to an insurer’s verification demand recommence the running of a tolled 30-day no-fault insurance claim denial period?

Cause of Action Tolled Pending Verification

Under New York’s No-Fault Insurance Law, an insurance carrier is required to either pay or deny a claim for benefits within 30 days from its receipt of the claim (see, 11 NYCRR 65-3.8 [c]). “Such benefits are overdue if not paid within 30 days after the claimant supplies proof of the fact and amount of the loss sustained” (Insurance Law § 5106 [a]). For the defendant to properly deny a claim, it must generate its denial and mail it to the plaintiff within 30 days. This period may be extended by, inter alia, a timely demand by the insurer for further verification of a claim (see, 11 NYCRR 65-3.5 [b]). Such demands must be made within 10 business days of the receipt of a completed application (see, 11 NYCRR 65-3.5 [a]). If the demanded verification is not received within 30 days, the insurance company must issue a follow-up request within 10 calendar days of the applicant’s failure to respond (see, 11 NYCRR 65-3.6 [b]). Further, an insurer must request any additional verification it will require within 15 days after receipt of one or more completed verification forms in order to further toll the 30-day payment or denial period (see, 11 NYCRR 65-3.5 [b]). The 30-day period in which the insurer has to either pay or to deny the claim does not begin to run until all demanded verification is provided (see, 11 NYCRR 65-3.8 [a] [1]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]). In fact, the insurer is precluded from issuing a denial while a verification request is outstanding (see, 11 NYCRR 65-3.8 [b] [3]).

The Undisputed Facts

In the case at bar, the plaintiff’s claim for medical services was received by the defendant insurer on August 11, 2005. The defendant made an initial verification request that was mailed on August 22, 2005. The additional verification requested the following information:

“Pursuant to regulation 68, 65-3.11 (B) a provider must submit either a properly executed prescribed assignment of benefits or authorization to pay in order to receive direct payment from the insurer. As you have not submitted a properly executed form, we are unable to consider reimbursement. Enclosed is a prescribed assignment of benefits form for you to complete in full, have signed by the patient, and return to the undersigned. Advise us immediately if you are unable to submit a properly executed assignment or authorization.

“1. The assignment submitted was not signed by the patient.

“2. The assignment submitted was not signed by the provider, electronic signatures are not acceptable.

“3. We are in receipt of your bill for services, however, we have not yet received the fully [*3]completed, prescribed verification of treatment by attending physician form (NF-3). Every box must be fully completed, blank boxes will not be accepted. The patient must elect either box 20 authorization to pay or 21 assignment of benefits, but not both. If the prescribed assignment of benefits or authorization to pay has previously been submitted, please indicate same in box 21. Be advised we require the physician’s original signature on said form. Signature stamps and/or electronic signatures will not be accepted. We require submission of said form, for each provider of service, before consideration of their claim for services. (Regulation 68, 65-3.5F).

“Consideration of your claim will remain delayed pending our receipt of said form and any other verification duly requested. (NF3 attached hereto).”

A follow-up verification request was sent by the defendant on September 22, 2005 as no verifications were supplied by the plaintiff within 30 calendar days of the original request (see, 11 NYCRR 65-3.6 [b]). It is unrefuted that the plaintiff has not responded to the defendant’s verification demands.

Electronic Signatures

The defendant contends, inter alia, that both the assignment of benefits (AOB) form and the NF-3 claim form contain electronic signatures of the assignor/patient Edison Alcantara. Further, the defendant states that both forms show the assignee/provider’s signature as “on file.” The defendant argues that it was entitled to verify the signatures of the assignor/patient and the assignee/provider of health care services. The plaintiff does not rebut the documentary and testimonial evidence demonstrating that the defendant timely requested verification of the signatures of the assignor and assignee on both forms.

The plaintiff argues in opposition that the New York State Electronic Signatures and Records Act (ESRA) and the federal Electronic Signatures in Global and National Commerce Act (E-Sign) require the defendant insurance company to accept the electronic signature of the assignor/patient Edison Alcantara as equivalent to an original signature. The plaintiff contends that the New York state and federal laws give electronic signatures the same validity and effect as handwritten ones. Further, the plaintiff claims that a signature indicated as being “on file” is sufficient, and is not the equivalent of being absent from the particular form.

The defendant submits the October 25, 2006 opinion of the General Counsel’s Office of the New York State Insurance Department regarding electronic record retention of no-fault insurance claim forms in support of its argument that an insurance company is “not obligated to accept an electronic signature.” (Ops Gen Counsel NY Ins Dept No. 06-10-05 [Oct. 2006].) The General Counsel’s opinion addresses two questions presented by a firm representing radiology facilities inquiring whether it may use electronic documents and electronic signatures in submitting no-fault insurance claims. The first question presented asks: “Do the New York State Electronic Signatures and Records Act (‘ESRA’) and the federal Electronic Signatures in Global and National Commerce Act (‘E-Sign’) obligate an insurer to accept electronic records and signatures with No-Fault insurance claim forms?” The General Counsel’s answer was no. The Counsel states that “Neither E-Sign nor ESRA obligates an insurer to accept electronic records or signatures.” The second question presented [*4]asks: “May a digitally reproduced NF-AOB serve as an original document for purposes of a verification request by an insurer under Section 65-3.11 (c) of NY Comp. Codes R. & Regs. tit.11, Part 65 (Regulation 68)?” The General Counsel’s answer was “[y]es, provided that it is accurate and accessible as required under Section 7001 (d) (1) of E-Sign, and the insurer consents to the use of an electronic record as an original document.”

The General Counsel’s office examined the New York State law (ESRA) and the federal law (E-Sign), and concluded that neither law “obligates any person, including an insurer, to accept the use of electronic records and signatures. Accordingly, an insurer is not required to accept electronic records and signatures and may require that such records and signatures are submitted in hard copy form.” Moreover, the regulatory interpretations of the New York State Insurance Department are entitled to a “great deference” (see, Bronx Med. Servs., PC v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022[U], *3 [App Term, 1st Dept 2003]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988]). Consequently, it is the opinion of this court that, as the defendant contends, with regard to a no-fault claim, an insurance company may choose to accept an electronic signature, but it is not obligated to do so. Hence, the defendant’s verification request was proper. As the plaintiff has not yet provided the demanded hard copy verification, the statutory period for the defendant to pay or to deny the plaintiff’s claim continues to be tolled (see, Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2d Dept 2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002]). As a consequence, the plaintiff’s claim herein is premature.

Further, although the plaintiff argues that there is no requirement that a no-fault AOB form contain a signature by the provider and that a signature indicated as being “on file” is sufficient, the form that the plaintiff elected to use clearly requires a “signature of provider.” The plain language of the no-fault insurance regulations requires that the provider submit a “properly executed assignment” on whatever form it chooses to submit. “It is well established that the No-Fault law is in derogation of the common law and must be ‘strictly construed’ ” (Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210 [2d Dept 1994]). Consequently, it is the opinion of the court that the plaintiff’s “on file” signature is not sufficient for a properly executed AOB form. As the plaintiff has also failed to comply with the defendant’s request for additional verification, the court finds that the 30-day period within which the defendant had to either pay or to deny the claim for no-fault benefits did not begin to run.

Accordingly, the defendant’s motion to dismiss is granted, and the plaintiff’s cross motion is denied as moot.

Civil Court of the City of New York, Kings County

24656/05

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, plaintiff’s motion is granted.

In this action, plaintiff Capri Medical, P.C. seeks to recover first-party No-Fault benefits in the amount of $4,204.33 and statutory interest, costs, and attorneys’ fees for medical services it allegedly rendered to its assignor, Nail Abusov. In its moving papers, plaintiff submits following five bills which are the subject are this lawsuit: $1,593.37 (for date of service 4/9/03); $1,566.40 (for date of service 3/26/03); $302.17 (for date of service 3/19/03); $302.17 (for date of service 4/2/03); and $440.22 (for date of service 4/24/03). Plaintiff also submits the affidavit of its billing manager, Yelena Medvedik, who asserts that she personally mailed out the subject bills to defendant and [*2]that defendant issued “unreasonable and untimely denials” in response thereto.

The Court finds that plaintiff has established a prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form that the prescribed statutory claim forms, setting forth the facts and amounts of the losses sustained, were submitted to defendant, and that payment of no-fault benefits is overdue. See NYCRR § 65-3.8(c); D.A.V. Chiropractic, P.C. v Amer. Transit Ins. Co., 7 Misc 3d 133(A) [App Term, 2d and 11th Jud Dists 2005]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A) [App Term, 2d & 11th Jud Dists 2004]. The burden now shifts to defendant to raise a triable issue of fact.

In opposition to this motion, defendant Auto One Insurance Company contends that it timely denied plaintiff’s claims on the ground of lack of medical necessity. However, defendant’s opposition fails to establish by competent evidence that it timely mailed the denials in question. “Proof of proper mailing requires evidence of actual mailing or. . .a standard office practice or procedure designed to ensure that items are properly addressed and mailed.'” See Comprehensive Mental v. Lumbermans Mut. Ins. Co., 4 Misc 3d 133(A) [App Term, 9th & 10th Jud Dists 2004]. The affidavit of Travis Miller is deficient in several respects. First, Mr. Miller states that he is “currently employed as Line Unit Supervisor,” but he does not explain what that means or what his job entails. Second, while he states that he has worked for defendant since August 2002, he does not state in what capacity he was employed prior to becoming Line Unit Supervisor.

As for his attempt to establish that defendant timely mailed the denials of the subject claims, he does not state that he personally mailed the denials, nor does he make clear how he knows that the denials in this case were timely mailed. Mr. Miller also does not establish that it is his duty to ensure compliance with defendant’s mailing procedures. See Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 135(A), 820 NYS2d 841 [App Term, 2d &11th Jud Dists 2006]; Contemp. Med. Diag. & Treatment, P.C. v. GEICO, 6 Misc 3d 137(A), 800 NYS2d 344 [App Term, 2nd & 11th Jud Dists 2005]. He “merely state[s] that the claims were timely denied without asserting personal knowledge of the mailing or setting forth sufficient facts to create a presumption of mailing.”Prestige Med. & Surg. Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127(A) [App Term, 2d &11th Jud Dists 2006]. Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co., 12 Misc 3d 145(A) [App Term, 2d &11th Jud Dists 2006]. The Court further notes that Mr. Miller’s affidavit fails to make any reference to the $302.17 bill for date of service March 19, 2003.

Defendant also submits the affidavit of its Mailroom Supervisor, Jay Santiago, who describes defendant’s procedures for mail collection first by mailroom personnel from bins throughout the office, and then by the United States Postal Service. However, in the absence of competent proof that defendant timely generated denials of the subject bills and deposited them for pickup, Mr. Santiago’s affidavit is unavailing. Therefore, defendant has failed to meet its burden, and plaintiff is entitled to summary judgment.

Accordingly, plaintiff’s motion is granted, and plaintiff is awarded judgment in the amount of $4,204.33 plus statutory interest, costs, and attorneys’ fees.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by______ on _______

District Court of Nassau County, First District

1761/06

La Sorsa & Beneventano

Morris, Duffy, Alonso & Faley

Randy Sue Marber, J.

The defendant, MVAIC, moves for summary judgment based upon the seventh and forty-sixth affirmative defenses contained in its answer. Specifically, the defendant argues that (1) there is no coverage with MVAIC because the plaintiff’s assignor has failed to qualify for MVAIC no-fault benefits pursuant to Insurance Law Article 52; and (2) the plaintiff’s claim may not be maintained because of the statute of limitations. The plaintiff opposes the motion and the defendant submits a reply.^[FN1]

The defendant claims the plaintiff’s assignor, Jonathan Laul, was a passenger of a motor vehicle owned by Crescencio Canela Company on October 11, 2000, the date of loss. On January 17, 2006 the instant action was commenced to recover $3,602.00 in unpaid medical bills in this Court by the filing of a summons with endorsed complaint (UDCA §403). The plaintiff alleges that it rendered services to its assignor on various dates in October, November and December of 2000 and January and February of 2001. The plaintiff goes on to claim that it [*2]timely submitted bills and claims to the defendant and those claims were neither paid nor denied in accordance with New York State no-fault regulations.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, in directing judgment in its favor (see, CPLR §3212[b]). The burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial (see, CPLR §3212[b]; see also, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). However, a movant’s failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 NY2d 32, 508 NYS2d 923 [1986]).

The defendant alleges that coverage is nonexistent with MVAIC as Mr. Laul failed to qualify for MVAIC no-fault benefits. In particular, the defendant argues that because the assignor has failed to provide proof of New York residency. Moreover, the defendant submits that the statute of limitations to become qualified has expired. In support of this proposition, the defendant annexes the affidavit of Laura Figueroa, a Qualifications Examiner with the defendant [see, Exhibit “E”]. The affidavit sets forth the defendant’s normal business practices and patterns of communicating with applicants. Ms. Figueroa states that on June 27, 2001 a letter was sent to Mr. Laul’s attorney stating the defendant was unable to process the Notice of Intent to make a claim because he failed to prove residency or to provide a social security number. In addition, Ms. Figueroa noted that a telephone conversation ensued between the defendant and Mr. Laul’s attorney regarding the deficiencies of his application. Accordingly, the defendant has made out a prima facie showing of its entitlement to summary judgment as a matter of law.

In opposition, the plaintiff, in an effort to meet its burden of raising a triable issue of fact, asserts that it filed a Notice of Intention to make a claim with MVAIC within 180 days. The plaintiff applies the standard generally applied in Insurance Law Article 51 actions. In a no-fault insurance action, a medical provider must submit evidentiary proof that the appropriate claim forms were mailed, that the forms were received by the insurer and that the payment of no-fault benefits was overdue (see Mary Immaculate Hospital et al v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept 2004]; see also 11 NYCRR §65-3.3[d]; §65-3.5[a]). However, here, prior to a review pursuant to Article 51, the plaintiff must first comply with Article 52 and the Notice of Claim requirement. The plaintiff does not address the issue of the failure of the assignee to provide MVAIC with proof of residency.

Statute of Limitations

The applicable statute of limitations is found in CPLR 214(2). CPLR 214(2) reads, in pertinent part, as follows: [*3]

“an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215; … “

The Court of Appeals has held that a three (3) year statute of limitations period is applicable for a medical provider seeking to recover unpaid first party no fault insurance from MVAIC. The reason being is that MVAIC’s obligation to pay the claimants’ first party benefits and its entitlement to reimbursement are created or imposed by statute, but for which they would not exist (see, MVAIC v. Aetna Casualty & Surety Company, 89 NY2d 214, 652 NYS2d 584 [1996]; Line Chiropractic, P.C. v. Motor Vehicle Indemnification Corporation, 6 Misc 3d 1032[A], 800 NYS2d 347 [Civil Court Bronx 2005]).

In the instant case, the defendant’s claims interposed on or about October, November and December, 2000 and January 6, 13, 19, 2001 are dismissed as untimely. The remaining claims dated January 27, 2001 and February 10, 2001, although not denied for statute of limitation purposes as MVAIC concedes, are nonetheless dismissed on summary judgment.

Summary Judgment

The Motor Vehicle Accident Indemnification Corporation (MVAIC) was established to pay bodily injury damages and no fault benefits to qualified’ victims of motor vehicle accidents caused by uninsured motorists. In order to recover MVAIC benefits, the injured party must be eligible for MVAIC benefits, which requires that the party not have any other available insurance covering its claim and that the accident is of the nature contemplated by MVAIC. Upon proving that the claimant’s accident was of a type contemplated by MVAIC, the injured party must then be a “qualified person”, defined by MVAIC, as “… someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle.”

Once a qualified person has complied with the requirements of Insurance Law Article 52, then that person will be considered a covered person and will be entitled to the rights that a person under Insurance Law Article 51 is entitled to regarding no-fault benefits.

The Court finds that complying with the “statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (see A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U, 2-3 (NY Misc 2006); Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137A, 803 NYS2d 19, 2005 NY Slip Op 51271U [App Term, 2d & 11th Jud Dists]). In the instant case, the plaintiff has failed to meet his burden in establishing the condition precedent, of qualifying as a covered person. Accordingly, MVAIC’s failure to timely deny plaintiffs’ claims does not preclude the dismissal of the plaintiffs’ causes of action based upon lack of coverage (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199-200, 681 NE2d 413, 659 NYS2d 246 [1997]). [*4]

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s complaint is dismissed.

So Ordered:

DISTRICT COURT JUDGE

Dated: December 5, 2006

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Footnotes

Footnote 1:It should be noted that although the defendant references his statute of limitations argument in the notice of motion, it does not address the issue in the motion itself. It is only in the defendant’s reply that it raises these arguments for the first time. This is inappropriate and will not be considered by this Court (see, Matter of Zimmerman v. Planning Bd. of Town of Schodack, 294 AD2d 776, 742 NYS2d 431, lv denied 98 NY2d 612, 749 NYS2d 4 [3d Dept 2002]).

District Court of Nassau County, First District

1757/06

Morris, Duffy, Alonso & Faley

La Sorsa & Beneventano

Randy Sue Marber, J.

The defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter “MVAIC”), moves for an order granting summary judgment and dismissing the plaintiff’s complaint, pursuant to CPLR §3211 and 3212. The plaintiff, opposes the motion and the defendant has served a reply.

The plaintiff’s assignor, Flerida Erazo, was allegedly involved in a motor vehicle accident on January 27, 2003. Specifically, it is alleged that Ms. Erazo was a pedestrian when she was struck by an unknown vehicle. Thereafter, on January 31, 2003, February 3, 2003, February 7, 2003, February 10, 2003, February 15, 2003, February 22, 2003, February 27, 2003 and March 14, 2003, Ms. Erazo received acupuncture treatment from the plaintiff, Akita Medical Acupuncture, PC. An assignment of benefits was executed on January 31, 2003 (see, Exhibit “C”). On or about December 15, 2003, the plaintiff alleges that it submitted claims for no-fault payments to MVAIC and mailed them to MVAIC at 110 William Street, New York, NY 10038. To date, the plaintiff claims that no payment has been made, nor has there been a valid, timely denial or a proper request for additional verification. The plaintiff instituted this action to recover unpaid medical bills in the sum of $1,080.00. The plaintiff submits that it filed a notice of intention to make a claim with MVAIC. However, in opposition, the defendant alleges that the plaintiff failed to satisfy a condition precedent to coverage, thus it was not required to issue a denial or payment.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, in directing judgment in its favor (see, CPLR §3212[b]). The [*2]burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial (see, CPLR §3212[b]; see also, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In the instant motion, the defendant alleges that “…coverage was nonexistent with MVAIC as plaintiff’s assignor failed to comply with the reporting requirements of Insurance Law Article 52, by neglecting to provide (a) a police report; and (2) a notarized household affidavit, a prerequisite to MVAIC coverage…” (see, Affidavit of David Shnayderman). Accordingly, the defendant has made out a prima facie showing of its entitlement to summary judgment as a matter of law.

In opposition, the plaintiff, in an effort to meet its burden of raising a triable issue of fact, asserts that it satisfied the condition precedent to qualify for MVAIC benefits because it failed its notice of claim within 180 days of the accrual of the cause of action. The claim form was mailed to MVAIC, on or about December 15, 2003, requiring MVAIC to pay or timely deny the bill. The plaintiff applies the standard generally applied in Insurance Law Article 51 actions. In a no-fault insurance action, a medical provider must submit evidentiary proof that the appropriate claim forms were mailed, that the forms were received by the insurer and that the payment of no-fault benefits was overdue (see, Mary Immaculate Hospital et al v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept 2004]; see also, 11 NYCRR §65-3.3[d]; §65-3.5[a]). However, here, prior to a review pursuant to Article 51, the plaintiff must first comply with Article 52.

The purpose of MVAIC is to pay bodily injury damages and no-fault benefits to “qualified”victims of motor vehicle accidents caused by uninsured motorist. In order to recover MVAIC benefits, the injured party must be eligible for MVAIC benefits, which requires that the party not have any other available insurance covering its claim and that the accident is of the nature contemplated by MVAIC. Upon proving that the claimant’s accident was of a type contemplated by MVAIC, the injured party must then be a “qualified person”, defined by MVAIC, as “…someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle.”

A qualified person is required to provide MVAIC with notice of the claim. Insurance Law §5208(2)(a), “Notice of Claim”, states, in relevant part:

(A) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace, or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:…

(B) The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon [*3]as was reasonably possible.

Once a qualified person has complied with the requirements of Insurance Law Article 52, then that person will be considered a covered person and will be entitled to the rights that a person under Insurance Law Article 51 is entitled to regarding no-fault benefits.

MVAIC is a statutory creation designed to provide no-fault benefits to injured individuals only when there is no other insurance available. In this case, the claimant has not provided the defendant with a copy of the police report regarding this accident, or otherwise provided the defendant with proof that the claimant complied with any of the other report requirements pursuant to Article 51. Since the claimant has not verified that the alleged accident ever occurred or that it was reported to the police within 24 hours, the claimant is not qualified to receive MVAIC benefits.

This Court finds that complying with the “statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (see, A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U, 2-3 (NY Misc 2006); Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137A, 308 NYS2d 19, 2005 NY Slip Op 51271U [App Term, 2d & 11th Jud Dists]). Accordingly, MVAIC’s failure to timely deny plaintiffs’ claims does not preclude the dismissal of the plaintiffs’ causes of action based upon lack of coverage (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199-200, 681 NE2d 413, 659 NYS2d 246 [1997]).

Accordingly, the defendant’s motion for summary judgment is granted and the cause of action for $1,080.00 is dismissed.

So ordered:

DISTRICT COURT JUDGE

Dated:December 5, 2006

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jcm

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 May 27, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 costs.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from the denial of its motion for summary judgment in which it sought to recover the sum of $1,947.92. Plaintiff failed to establish a prima facie entitlement to judgment as a matter of law due to various deficiencies in the affidavit of plaintiff’s “corporate officer” in
support of plaintiff’s motion, including, as defendant raised in opposition to the motion, the fact that said officer did not demonstrate that he had sufficient personal knowledge concerning plaintiff’s office practices with regard to the subject claims so as to lay a proper foundation for the admission of the annexed claim forms as business records (see CPLR 4518; see also Dan Medical, P.C. v New York Central Mut. Fire Ins. Co., ____ Misc 3d _____, 2006 NY Slip Op _________ [App Term, 2d & 11th Jud Dists]). Therefore, the court properly denied the plaintiff’s motion for summary judgment. In light of the determination herein, we reach no other issue. [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 1, 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 (Lila Gold, J.), entered November 9, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

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

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

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.
MEGA SUPPLY AND BILLING INC.
A/A/O KIMBERLY CHANCE,

Appellant,

-against-
AUTO ONE INSURANCE COMPANY,

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 1, 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 (Arlene Bluth, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an “corporate officer” of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s “corporate officer” stated in a conclusory manner that the documents annexed to plaintiff’s motion papers were plaintiff’s business records. In opposition to plaintiff’s motion, defendant argued that, inter alia, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because plaintiff’s moving papers lacked a statement from someone with personal knowledge regarding the documents annexed to their moving papers. The Civil Court denied plaintiff’s motion, holding that plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, and this appeal ensued.

Plaintiff’s contention that it established its prima facie case lacks merit. For the reasons stated in Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co. (No. 2005-1801 K C, decided herewith), the supporting affidavit submitted by plaintiff’s “corporate officer” failed to demonstrate that he was in a position to lay a foundation for the admission, as business records, [*2]of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 1, 2006