New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co.

2006 NY Slip Op 05601 [31 AD3d 511]

July 11, 2006

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 20, 2006

New York University Hospital Rusk Institute et al., Respondents, v Illinois National Insurance Co. et al., Appellants.

—[*1]

In an action to recover no-fault insurance benefits, the defendants appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 7, 2005, which denied their motion to vacate a clerk’s judgment of the Supreme Court, Nassau County, entered December 8, 2004, upon their failure to appear or answer the complaint, to quash an information subpoena dated March 28, 2005, and to vacate an order of the same court dated May 26, 2005 directing them to comply with the information subpoena.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the clerk’s judgment entered December 8, 2004 is vacated, the information subpoena dated March 28, 2005 is quashed, and the order dated May 26, 2005 is vacated.

“A [defendant] seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) ‘must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action’ ” (New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006], quoting Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The defendants established both a reasonable excuse for their failure to timely appear and answer the complaint and potentially meritorious defenses, namely, the failure of the plaintiff New York University Hospital Rusk Institute to comply with the defendants’ demands for verification of the [*2]claim (see 11 NYCRR 65-3.8 [a] [1]; Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2006]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]) and the alleged exhaustion of the policy limits through payment of prior claims (see Mount Sinai v Allstate Ins. Co., 28 AD3d 727 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]).

Accordingly, in view of the strong public policy that actions be resolved on their merits, the relatively brief delay involved, the defendants’ lack of wilfulness, and the absence of prejudice to the plaintiff, the Supreme Court improvidently exercised its discretion in denying the defendants’ motion, inter alia, to vacate the December 8, 2004, judgment (see New York & Presbyt. Hosp. v American Home Assur. Co., supra; New York & Presbyt. Hosp. v Auto One Ins. Co., 28 AD3d 441 [2006]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 27 AD3d 708 [2006]; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]). Miller, J.P., Adams, Goldstein and Covello, JJ., concur.

Meridian Acupuncture Care v Geico Ins. Co.

2006 NY Slip Op 05599 [31 AD3d 509]

July 11, 2006

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 20, 2006

Meridian Acupuncture Care, Appellant, v Geico Insurance Company, Respondent.

—[*1]

In a proposed class action by individual insureds or their assignees, inter alia, in effect, to recover payments for acupuncture treatments, the plaintiff appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered January 12, 2005, which, among other things, granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

The Supreme Court properly dismissed the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]). The plaintiff’s claims are based on the erroneous proposition that New York Insurance Department regulation 68 (11 NYCRR part 65) requires the defendant to use only physicians licensed as acupuncturists to conduct independent medical examinations of patients who have received acupuncture treatment. The regulation contains no such requirement (see 11 NYCRR 65-1.1). Furthermore, contrary to the plaintiff’s contentions, no license or certification is required for a physician conducting an independent medical examination of a patient who has received acupuncture treatment, and such a physician is not engaged in the practice of acupuncture (see Education Law §§ 6521, 8211 [1] [a]; Savarese v Allstate Ins. Co., 287 AD2d 492 [2001]). [*2]

In light of this determination, the parties’ remaining contentions need not be reached. Schmidt, J.P., Santucci, Luciano and Rivera, JJ., concur.

Martin v Geico Direct Ins.

2006 NY Slip Op 05596 [31 AD3d 505]

July 11, 2006

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 20, 2006

Elaine Martin, Appellant, v Geico Direct Insurance, Respondent.

—[*1]

In an action, inter alia, to recover no-fault benefits pursuant to a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated July 14, 2005, which denied her motion, in effect, for summary judgment, and granted the defendant’s cross motion to dismiss the action pursuant to CPLR 3211 (a) (5).

Ordered that the order is affirmed, without costs or disbursements.

The doctrine of collateral estoppel bars a party from “relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). To invoke the doctrine, the identical issue must have been decided in the prior action or proceeding, and be decisive of the present action, and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Matter of Robert v O’Meara, 28 AD3d 567 [2006]).

Contrary to the plaintiff’s contention, the Supreme Court properly denied her motion, in effect, for summary judgment and granted the defendant’s cross motion to dismiss the action pursuant to CPLR 3211 (a) (5) on the ground that it was barred by a prior arbitration award. The defendant demonstrated that the issues raised in the prior arbitration proceeding, in which the [*2]plaintiff challenged the denial on August 8, 2000, of her claim for further no-fault benefits, were identical to and decisive of her present cause of action. In opposition to the cross motion, the plaintiff failed to sustain her burden of demonstrating that she did not have a full and fair opportunity to litigate issues relating to the August 8, 2000 denial of benefits at the prior arbitration proceeding. Accordingly, the court properly gave collateral estoppel effect to the arbitrator’s determination (see Clemens v Apple, 65 NY2d 746 [1985]; Lobel v Allstate Ins. Co., 269 AD2d 502 [2000]; Barnett v Ives, 265 AD2d 865 [1999]). Ritter, J.P., Krausman, Lifson and Lunn, JJ., concur.

[*1] Decided on July 7, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-1599 Q C. NO. 2005-1599 Q C

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 26, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s cross 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 health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits 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]).

In denying plaintiff’s cross motion for summary judgment, the court below referred to the allegedly defective NF-3 form which contains an unreadable marking in the provider’s signature space, an allegedly defective assignment and an allegedly defective supporting affidavit by someone without personal knowledge of the facts. However, these deficiencies were waived because the defendant failed to timely seek verification of the assignment or the NF-3 form (A.B. [*2]Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s cross motion for summary judgment, the defendant conceded that it had received plaintiff’s claim form and indicated the date of receipt on its denial of claim form. This adequately established that plaintiff sent and defendant received said claim (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]). Defendant made the conclusory allegation, by one without personal knowledge of the facts, that it had sent several requests for independent medical examinations (IMEs) and that plaintiff’s assignor failed to appear. Since defendant failed to describe the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to create a triable issue of fact (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, plaintiff’s cross motion for summary judgment should have been granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., 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: July 7, 2006

[*1] Decided on July 6, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-678 Q C. NO. 2005-678 Q C

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered August 17, 2004. The order, insofar as appealed from, granted plaintiff’s motion for partial summary judgment as to its ninth cause of action and denied defendant’s cross motion for partial summary judgment as to said cause of action.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for health services rendered to its assignor. Plaintiff moved for partial summary judgment as to its first, fifth, seventh and ninth causes of action, and defendant cross-moved for partial summary judgment as to plaintiff’s first and ninth causes of action. The order, insofar as appealed from, granted plaintiff’s motion for partial summary judgment as to its ninth cause of action ($1,360.48 claim of assignor Isabel Gonzalez) and denied defendant’s cross motion for partial summary judgment as to said cause of action.

Plaintiff established its prima facie entitlement to partial summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment [*2]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]). Despite defendant’s untimely denial of plaintiff’s claim for the sum of $1,360.48, defendant was not precluded from asserting the defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488 [2001]). In support of its cross motion for summary judgment, defendant contended that the assignor, Isabel Gonzalez, was not an “eligible
injured person” (11 NYCRR 65-1.1 [d]) since she did not “regularly reside[]” (11 NYCRR 65-1.1[g]) with the insured, Sarito Gonzalez, and, as such, was not a relative of Mr. Gonzalez entitled to coverage under his insurance policy. We note that the Mandatory Personal Injury Protection Endorsement, as set forth in 11 NYCRR 65-1.1 (g), defines a relative as “a spouse, child or other person related to the named insured by blood, marriage or adoption (including a ward or foster child), who regularly resides in the insured’s household, including any such person who regularly resides in the household, but is temporarily living elsewhere.”

Defendant’s assertion, both in the affirmation of counsel and in the affidavit of its litigation examiner, that Isabel Gonzalez did not reside with the insured, was conclusory in nature and unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) and therefore, was insufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d 195, 199 [1997]). Accordingly, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage, and similarly failed to establish its entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In view of the foregoing, the lower court properly granted [*3]
plaintiff’s motion for partial summary judgment as to its ninth cause of action and denied defendant’s cross motion for partial summary judgment as to said cause of action.
Rios and Belen, JJ., concur.

Golia, J.P., concurs in part and dissents in part in a separate memorandum.

[*4]
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.

PSYCH. & MASSAGE THERAPY ASSOC., PLLC
Assignee of GREGORY PRZYBOROUWSKI, HECTOR MORALES
SONIA GUARDADO, DICSIANA REYES and ISABEL GONZALEZ,

Respondent,

-against-

PROGRESSIVE CASUALTY INS. CO.,

Appellant.

Golia, J.P., concurs in part and dissents in part and votes to modify the order, insofar as appealed from, by providing that plaintiff’s motion for partial summary judgment as to its ninth cause of action is denied in the following memorandum:

I agree with the majority that “…defendant was not precluded from asserting the defense of lack of coverage…” even though such defense was not raised in a “timely” denial.

I, however, do not agree with the majority in their holding that the issue raised by the defendant “was insufficient to demonstrate a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” because the affidavits by the defendant were conclusory and unsupported by competent evidence. In point of fact, the plaintiff’s own submitted documents list the residence of its assignor Isabel Gonzalez to be at 342 Wyona Street in Brooklyn, New York which is not the residence of the insured.

This fact alone raises a “founded belief” that the plaintiff’s assignor was not an eligible insured entitled to receive no-fault benefits, certainly sufficient to warrant a denial of plaintiff’s motion for summary judgment.
Decision Date: July 6, 2006

New York & Presbyt. Hosp. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 05336 [31 AD3d 403]

July 5, 2006

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 20, 2006

New York and Presbyterian Hospital et al., Respondents, v New York Central Mutual Fire Insurance Company, Appellant.

—[*1]

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered January 20, 2005, which, after a nonjury trial, and upon denying the defendant’s application to dismiss the complaint on the ground of lack of standing, is in favor of the plaintiffs and against it in the total sum of $33,452.77.

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant correctly contends that the plaintiff hospitals lacked standing. The proof adduced at trial included unsigned assignment of benefit forms (see Leon v Martinez, 84 NY2d 83 [1994]). Schmidt, J.P., Adams, Luciano and Lifson, JJ., concur.

[*1] Decided on July 3, 2006

Civil Court, Richmond County

Adam Marigliano, LMT, as Assignee of Guillermo Rios and Criselda Rodriquez, Plaintiff, against State Farm Mut. Auto Ins. Co., Defendant.

005741/05

Peter P. Sweeney, J.

The plaintiff commenced this action pursuant to Insurance Law § 5101 et seq to recover assigned first-party no-fault benefits for medical service provided to its Assignors, Guillermo Rios and Criselda Rodriquez.

The trial of the action took place on April 12, 2006. Neither party called a witness. To establish a prima facie case, plaintiff relied solely upon defendant’s failure to respond to a notice to admit it was served on November 30, 2005 pursuant to CPLR 3123(a).

The notice to admit requested admissions of the following facts:

1.The defendant received the claim(s) for No-Fault benefits that are the subject of this action.

2.The defendant received the N-F-3 Verification of Treatment Form(s) that are the subject of this action.

3.The defendant received the bill(s) that are the subject of this action.

4. The defendant has not paid the bill(s), claim(s), and/or N-F-3 referenced in 1 through 3 above.

5.The defendant received an Assignment of Benefits Forms(s) for the claims that are the subject of this action.

7.The defendant did not mail requests for verification to the plaintiff for the claims that are the subject of this action.

8.The defendant issued a policy of insurance covering the vehicle plaintiff’s assignor was in at the time of the motor vehicle accident.

Plaintiff did not annex to the notice to admit copies of the bills, claims, and/or N-F-3s and requested and admissions as to their genuineness as CPLR 3123(a) permits. Further, the bills, [*2]claims, and/or N-F-3s were not received in evidence during the trial.

Plaintiff maintained that by failing to respond to the notice to admit, defendant admitted to the truth of all the facts alleged therein and that these facts were sufficient to make out a prima facie case.

Defendant maintained that it was not obligated to respond to the notice to admit since it was vague and ambiguous and sought admissions of ultimate issues of fact. Defendant further maintained that plaintiff was required to introduce the bills, claims, and/or N-F-3s into evidence to make out a prima facie case.

Discussion:

Defendant’s contention that it did not have to respond to the notice to admit is without merit. Plaintiff properly used the notice to admit to dispose of what it believed to be uncontroverted questions of facts which would have been easily provable at trial (The Hawthorne Group, LLC v. RRE Ventures, 7 AD3d 320, 324 [1st Dep’t 2004]; see also Meadowbrook-Richman, Inc. v. Cicchiello, 273 AD2d 6 [1st Dep’t 2000]; Samsung America, Inc. v. Yugoslav Korean Consulting & Trading Co.,199 AD2d 48 [1st Dep’t 1993] ). The notice to admit removed “from the case those uncontested matters which would [have] merely present[ed] a time-consuming burden at trial” (Villa v. New York City Housing Authority, 107 AD2d 619-620 [1st Dep’t 1985] ).

While a party is not obligated to furnish admissions in response to a notice to admit that improperly demands admissions of ultimate and fundamental issues that can only be resolved after a full trial or matters that are in actual dispute (see, Meadowbrook-Richman, Inc. v. Cicchiello 273 AD2d 6, 6; [1st Dep’t 2000]; Orellana v. City of New York, 203 AD2d 542, 543 [2nd Dep’t 1994]; Miller v. Hilman Kelly Co.,177 AD2d 1036, 1037 [4th Dep’t 1991] ), “[a]ll of the items in the notice to admit involve[d] clear-cut factual matters about which one would reasonably anticipate no dispute, and the immediate disposition of which would not unfairly prejudice the defendant and would help to expedite the trial” (Risucci v. Homayoon, 122 AD2d 260, 261 [2nd Dep’t 1986], citing , CPLR 3123[a]; Villa v. New York City Housing Auth., 107 AD2d 619, 620 [1st Dep’t 1985] ). That fact that a notice to admit will establish plaintiff’s prima facie case on paper does not bar its use (id.).

Simply because defendant denied many of the facts alleged in the notice to admit in its answer to plaintiff’s complaint did not establish that those facts were in actual dispute. To hold otherwise would preclude a plaintiff from requesting admissions of any fact initially denied by a defendant in its answer. If defendant actually disputed any of the facts alleged in the notice to admit, it should have submitted a timely response denying them.

The court rejects defendant’s contention that the notice to admit was vague and/or ambiguous.

Inasmuch as defendant did not respond to the notice to admit within 20 days, defendant is deemed to have admitted all of the facts alleged therein (CPLR 3123[a] ).

Notwithstanding the above, the court agrees with defendant that plaintiff did not make out a prima facie case. In A.B. Med. Servs. PLLC v. State Farm Mut. Auto. Ins. Co., 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists], the court held that “[b]y failing to append the necessary claim forms to their motion papers, plaintiffs did not establish their prima facie case” (see, also, Patil v. Countrywide Ins. Co., 2006 NY Slip Op. 50306(U) [App Term, 9th & 10th [*3]Jud Dists]; Maldonado v. Steiner, 2005 NY Slip Op. 51905(U) [App Term, 9th & 10th Jud Dists] ). It necessarily follows that to make out a prima facie case at trial, copies of the NF-3 claim forms or their functional equivalent must be received in evidence for the purpose of demonstrating exactly what was sent to and received by the defendant. In the instant case, neither the N-F-3s nor their functional equivalent were received in evidence nor did plaintiff annex them to the notice to admit and request an admissions as to their genuineness.

Accordingly, it is hereby

ORDERED that judgment be entered in favor of the defendant dismissing the action.

Dated: July 3, 2006_____________________________

PETER P. SWEENEY

Civil Court Judge

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1895 S C.

Appeal from an order of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered November 2, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson; as so modified, affirmed without costs.

In this action by a subrogee to recover excess no-fault benefits paid on behalf of its insured, plaintiff, in moving for summary judgment, submitted an affidavit by its insured wherein she stated that her vehicle was legally stopped when defendant Ronnie Lee Nelson, the driver of the corporate defendant’s truck, backed the truck into her vehicle. Plaintiff thus met its initial burden on the motion with respect to the issue of defendant Nelson’s negligence in the operation of the truck, thereby shifting the burden to defendants as to said issue (see Vehicle and Traffic Law § 1121 [a]; see also Garcia v Verizon N.Y., Inc., 10 AD3d 339, 340 [2004]; Pressner v Serrano, 260 AD2d 458, 459 [1999]). Defendants’ opposition papers, which did not include an affidavit from defendant Nelson, failed to raise any triable issue of fact with respect to the issue [*2]of Nelson’s negligence. Accordingly, we deem it an established fact for all purposes in this action that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson (CPLR 3212 [g]). However, plaintiff is not entitled to summary judgment generally on the issue of liability with respect to its claim to recover excess no-fault benefits because there are triable issues of fact with respect to a[*3]release executed by plaintiff’s insured in favor of defendants (see generally Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383 [1984]; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086 [2005]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 3, 2006

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1194 K C. NO.2005-1194 K C

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered April 21, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff established 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 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 burden then shifted to defendant to establish a triable issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment dismissing the complaint, defendant alleged that it timely mailed plaintiff an NF-10 claim denial form, which stated, as the sole defense to the claim, that the medical services provided were not medically necessary, as demonstrated by an “attached” peer review report (see generally Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). The defendant proved that it mailed the denial form via an affidavit [*2]from a person with personal knowledge of the facts, alleging the form’s actual mailing (Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76, 77 [App Term, 2d & 11th Jud Dists 2005]; see Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists] [affidavit must allege either personal knowledge of the denial form’s mailing or a description of “the standard operating procedures (defendant) uses to ensure that its denial was mailed”], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also New York and Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Defendant also proved that the peer review report was annexed to its denial form. As the report asserted sufficient facts and a medical rationale based thereon to establish the defense of lack of medical necessity, a trial is required on the issue (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]). Accordingly, both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment should have been denied.

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

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
PSYCHOLOGICAL PRACTICE, P.C.
A/A/O ALLEN SHANNON,

Respondent,

-against-
KEMPER AUTO & HOME INSURANCE COMPANY,

Appellant.

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: July 3, 2006

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1172 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. In support of its motion for summary judgment on three claims, the plaintiff submitted the three NF-3 forms. Number 16 of each form states:

“If treating provider is different that [sic] billing provider complete the following.”

On two of the forms “the following” was not completed. On the third form, Number 16 identifies Dixu Gd Gao as the treating provider, and under the “business relationship” category, the box “Independent Contractor” is checked. 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 [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d &11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists]; see also Antell v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). In light of [*3]
the factual issues raised by plaintiff’s submissions, the plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issues.

Weston Patterson, J.P., and Belen, 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: July 3, 2006