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 April 8, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for partial summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of said benefits was overdue. Thereafter, it moved for partial summary judgment and defendant cross-
moved for summary judgment dismissing the complaint. By order entered April 8, 2005, the court below denied both motions without prejudice to renewal upon proper papers. The instant appeal by plaintiff ensued.

In order to establish its prima facie entitlement to summary judgment (see generally 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]), plaintiff was required, inter alia, to annex to its motion papers the claim forms being sued upon (see Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. [*2]Auto Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]). A review of the record on appeal indicates that plaintiff did not annex any exhibits to its moving papers. We note that the document entitled “EXHIBITS SERVED WITH THE PLAINTIFF’S SUMMARY JUDGMENT MOTION,” was rejected by the court below and was not considered by the court in reaching its determination. Plaintiff’s contention regarding defendant’s exhibits
lacks merit. Accordingly, the court below properly denied plaintiff’s motion for partial summary judgment without prejudice to renewal upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 (Eileen Nadelson, J.), entered September 28, 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 to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to [*2]the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.

The remaining contentions lack merit.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 (Eileen Nadelson, J.), entered September 28, 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 to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the
lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would [*2]not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.

The remaining contentions lack merit.

Pesce P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 (Eileen Nadelson, J.), entered September 29, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud
Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim forms to defendant. However, said deficiency was cured by the denial of claim form relating to all of the claims which adequately established that plaintiff sent, and that defendant received, the claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The denial of claim form was dated May 27, 2003 and indicated that the claims were [*2]received by defendant between December 2, 2002 and April 2, 2003. Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006

Civil Court of the City of New York, Kings County

90590/2005

Genine D. Edwards, J.

This is a bench trial of an action for first-party benefits, attorney’s fees and statutory interest commenced by Andrew Carothers, M.D., P.C. (“plaintiff”) as assignee of Stacia Barrow, Neida Campos and Vadim Bondarenko (“assignors”) against Travelers Insurance Company (“defendant”), pursuant to the New York Insurance Law and the No-Fault regulations. Plaintiff billed defendant a total of $3,583.45 for medical treatment rendered to its assignors.

At the outset, the defendant moved to preclude the admission of plaintiff’s bills into evidence, arguing that the bills were defective on their face since the relationship between the provider and treating physician was not noted. This Court reserved its decision.

The case law is clear that the plaintiff will not be entitled to direct payment of no-fault benefits if the alleged medical treatments were provided by an independent contractor. MGM Psychiatry Care P.C. v. Utica Mutual Insurance Company, 12 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2006); Rockaway Boulevard Medical P.C., dba Queens Diagnostic Center v. Progressive Insurance, 9 Misc 3d 52 (App. Term 2nd & 11th Jud. Dists. 2005); Elite Medical Care, P.C. v. Travelers Property and Casualty Insurance Company, 12 Misc 3d 1183(A) (N.Y.C. Civ. Ct. Kings County 2006); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1061(A) (N.Y.C. Civ. Ct. Queens County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1069(A) (N.Y.C. Civ. Ct. Queens County 2005). In order to grant the defendant’s motion, the defendant had the burden to demonstrate that the subject services were rendered by an independent contractor. Defendant failed at that burden. The defendant did not proffer one scintilla of evidence that would persuade this Court that the subject services were performed by an independent contractor. Moreover, the fact that the bills did not indicate the relationship between the plaintiff and the treating physician did not compromise the plaintiff’s prima facie showing. Rockaway, supra.

Turning to the evidence adduced at trial, this Court finds that the testimony of Octavio Rodriguez, an employee of Advanced Healthcare Solutions, plaintiff’s billing agent, as well as the documents admitted into evidence establish plaintiff’s prima facie entitlement to no-fault benefits. It should be noted that Advanced Healthcare Solutions relied upon plaintiff’s business records in order to conduct its business, thus, via proper foundation, those records were admitted into evidence pursuant to the business records exception to the hearsay rule. Pine Hollow Medical, P.C. v. Progressive Casualty Insurance Company, 13 Misc 3d 131(A) (App. Term 2nd & 11th Jud. Dists. [*2]2006); Foster Diagnostic Imaging, P.C. v. General Assurance Company, 10 Misc 3d 428 (N.Y.C. Civ. Ct. Kings County 2005).

Instead of offering testimony or documentary evidence in defense of this matter, the defendant relied upon its cross-examination of Mr. Rodriguez. That examination failed to rebut the presumption of medical necessity that attached to the plaintiff’s claim forms. Accordingly, plaintiff’s motion for a directed verdict is granted. Judgment in favor of plaintiff in the following amounts: $912.00 for assignor Vadim Bondarenko; $879.73 for assignor Stacia Barrow and

$1,791.73 for assignor Neida Campos as well as statutory interest and attorney’s fees.

This constitutes the decision and order of the Court.

Dated: November 2, 2006

__________________________________

Genine D. Edwards, J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court of Nassau County, First District (Margaret C. Reilly, J.), dated October 17, 2005. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A motion to vacate is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]). Despite the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment rendered against it. [*2]

Plaintiff adequately established that it effectuated service upon the Superintendent of Insurance pursuant to Insurance Law § 1212. Defendant’s mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by plaintiff’s affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]).

Although defendant’s motion to vacate the default judgment was made pursuant to CPLR 5015 (a) (1), in the instant case, we may treat defendant’s motion as having been made under CPLR 317 as well. A defendant seeking relief under CPLR 317 need not demonstrate a reasonable excuse for its default, as it must under CPLR 5015 (a) (1), but need only show that it did not personally receive notice of the summons in time to defend and that it has a meritorious defense. Defendant herein met its burden of showing that it did not receive actual notice of the commencement of the action in time to defend (see e.g. Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nonetheless, defendant failed to proffer a meritorious defense. Defendant admitted receipt of a Hospital Facility Form, and stated that after receipt of that form, it twice requested an Application for Motor Vehicle No-Fault Benefits, which was never submitted to it. Accordingly, it denied the claim, based upon the eligible injured party’s failure to file “a completed and signed application for no-fault benefits.” Defendant’s argument that it was entitled to delay payment of benefits pending its receipt of the Application for Motor Vehicle No-Fault Benefits has already been rejected by the Appellate Division, Second Department, in Nyack Hosp. v Encompass Ins. Co. (23 AD3d 535 [2005]) wherein the court pointed out that 11 NYCRR 65.15 (d) (6) (now 11 NYCRR 65-3.5 [g]) states that “[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) . . . submitted by a provider of health services with respect to the claim of such provider.” We note that a defendant may not avoid preclusion where its denial “involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, in view of the foregoing, we find that the court below improvidently exercised its discretion in vacating the default judgment, and that defendant’s motion should have been denied.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 27, 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 July 22, 2005. The order denied plaintiff’s cross motion which sought summary judgment and granted defendant’s motion to the extent of compelling plaintiff to respond to specified discovery demands served by defendant.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its cross motion for summary judgment and which also
required plaintiff to respond to defendant’s discovery demands. As stated by the Appellate Division, Second Department, in New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547, 548 [2006]):
“The plaintiff, as the proponent of the summary judgment motion, had the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that [*2]the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). The plaintiffs failed to submit a proper affidavit of service to establish as a matter of law that the subject hospital bill was mailed and received by the defendant. Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee’ (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998] [internal quotation marks omitted]). The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]).”

In the instant case, the affidavit submitted by plaintiff’s billing manager stated that she mailed the claim, but it did not set forth when the claim was mailed or describe plaintiff’s office practice and procedure for mailing no-fault claims to insurers to establish the date of mailing (see New York & Presbyt. Hosp., 29 AD3d at 548;
Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 11 Misc 3d 144[A], 2006 NY Slip Op 50810[U] [App Term, 2d & 11th Jud Dists]). Contrary to plaintiff’s contentions, the certified mail receipt, return receipt card was insufficient to establish when the subject claim was mailed to defendant given the affidavit’s deficiencies because there was no evidence that this claim was mailed to defendant under the article number set forth on the certified mail, return receipt card (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548). Since plaintiff’s submissions were insufficient to establish that payment was overdue, and defendant’s papers did not cure such deficiency, “upon all the papers and proof submitted” (CPLR 3212 [b]), a prima facie entitlement to summary judgment in favor of plaintiff was not demonstrated. Accordingly, plaintiff’s cross motion was properly denied without regard to the sufficiency of defendant’s opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]).

While we do not consider plaintiff’s contention that defendant was not entitled to any discovery because this argument is raised for the first time on appeal (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]), we note that it is contrary to a voluntary concession contained in plaintiff’s submissions to the Civil
Court wherein plaintiff agreed to provide discovery if plaintiff’s cross motion for summary judgment was denied.

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

Golia, J., concurs in a separate memorandum. [*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: October 27, 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 (Manuel J. Mendez, J.), entered January 3, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of 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 [2004]; Amaze Med. Supply v
Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing to defendant of the appended claim forms in the sums of $738 and $861.50. However, said deficiency was cured with regard to the $738 claim by defendant’s acknowledgment of receipt of said claim in its denial of claim form which was annexed to plaintiff’s papers. This adequately established that plaintiff sent, and that defendant received, said claim (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, [*2]plaintiff established its prima facie entitlement to summary judgment as to the $738 claim and the burden shifted to defendant to demonstrate the existence of a triable issue of fact with respect thereto (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The denial of claim form relating to plaintiff’s $738 claim was dated “8/10/01” and indicated that said claim was received by defendant on “1/12/01 and 3/19/01.” Since defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since plaintiff failed to establish a prima facie case as to its $861.50 claim and, in any event, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., 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: October 27, 2006