Civil Court of the City of New York, Kings County

41550/05

Delores J. Thomas, J.

In this action brought to recover no-fault benefits, plaintiff moves for summary judgment in the sum of $3,383.38 plus statutory interest together with statutory attorney’s fees.

The No-Fault Law provides for payments for medical services provided to a person injured as a result of an accident arising out of the use or operation of a motor vehicle. To recover first-party benefits, a claimant must demonstrate a prima facie entitlement to summary judgment by setting forth proof that it submitted a claim, the fact and amount of losses sustained, and that payment of benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept]).

In support of its motion, plaintiff submits an assignment of benefits form, denial of claim forms, and an affidavit from defendant’s billing manager, Yelena Medvedik, stating that the [*2]carrier issued denials more than thirty days after receipt of the bills. The court finds plaintiff has established its prima facie entitlement to summary judgment. Therefore, the burden shifts to defendant to demonstrate a triable issue of fact to withstand summary judgment (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).

An untimely denial precludes defendant from interposing most defenses including the defense of lack of medical necessity (Amaze Med. Supply, Inc. v. Eagle Insurance Co., 2 Misc 3d 139 [A], 2004 NY Slip Op 050279 [U] [App Term, 2d & 11th Jud Dists]). However, an untimely denial does not preclude a defendant from asserting the defense that the injuries do not arise out of a covered accident or a defense premised on staged accident fraud (see Central General Hosp. v. Chubb Group of Insurance Cos., 90 NY2d 195 [1997]; Matter of Metro Med. Diagnostics v. Eagle Insurance Co., 293 AD2d 751 [2002]). To withstand summary judgment, the insurer must come forward with proof in admissible form to establish the basis for its belief that there is no coverage (see Mount Sinai Hospital v. Triboro Coach, Inc., 263 AD2d 11 [2d Dept 1999]). A “founded belief” cannot be based upon unsubstantiated hypotheses and supposition (see A.B. Medical Services v. Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]).

The denial of claim forms state as the reason for denial: “Our investigation, including the results of a low impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of March 23, 2003, and are inconsistent with a collision of this nature. Therefore, our company hereby denies your entire no-fault claim based on the fact that the personal injuries do not arise out of the auto accident referred to above. The medical necessity of services provided has not been established.” To support its claim of a lack of causal nexus between the accident and the injuries allegedly sustained in the accident of March 23, 2003, defendant submits the affidavit of Alfred Cipriani, a technical consultant employed by SEA Limited, a consulting company which prepared an accident analysis report (low impact study) for defendant. The accident analysis report accompanies the affidavit (Exhibit F, annexed to Affirmation in Opposition).

Plaintiff maintains defendant’s proof does not constitute competent evidence sufficient to defeat its motion. Plaintiff argues Mr. Cipriani’s affidavit is not in admissible form as it was executed in Maryland, before a Maryland notary, and fails to comply with CPLR 2309 (c). Furthermore, plaintiff states defendant has failed to offer any evidence that the automobile collision was based on fraud.

One opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to raise a triable issue of fact. Here, in opposition to the motion, defendant relies upon an affidavit that is signed and notarized outside of New York and an accident analysis report which is annexed to the affidavit. The low impact study itself is unsworn and appears to incorporate hearsay evidence such as a Police Accident Report and refers to a transcript of a recorded statement of assignor Tumarov which is not annexed to the report.

Pursuant to CPLR 2309 (c):

“An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if [*3]such deed had been acknowledged before the officer who administered the oath or affirmation.”

In Ford Motor Credit Company v. Prestige Gown Cleaning Services (193 Misc 2d 262 [Civ Ct, Queens County 2002]) the court noted the distinction between “a certificate of authentication which certifies the identity and authority of the person who took the acknowledgment of proof” and a certificate of conformity which “certifies that the manner in which the acknowledgment or proof was taken conforms with the laws of the appropriate jurisdiction.” An affidavit that is signed and notarized outside New York State is required to be accompanied by a certificate of conformity (see Discover Bank v. Kagan, 8 Misc 3d 134 [A], 2005 NY Slip Op 51171 [U] [App Term, 2nd & 11th Jud Dists]; Citibank (S.D.) N.A. v. Suen, 11 Misc 3d 126 [A], 2005 NY Slip Op 52262 [U] [App Term, 2d & 11th Jud Dists]; Boai Zhong Yi Acupuncture Services v. New York Central Mutual Fire Ins. Co., 8 Misc 3d 1011 [A], 2005 NY Slip Op 51058 [U] [Civ Ct, Queens County]).

Therefore, this court concurs with plaintiff and finds defendant has failed to submit any competent evidence to support its defense that the injuries are not related to the accident. The affidavit is insufficient pursuant to CPLR 2309 (c). The Accident Analysis Report is inadmissible on its own or as an attachment to the affidavit.

Accordingly, plaintiff’s motion for summary judgment is granted. The clerk is directed to enter judgment in favor of plaintiff in the sum of $3,383.38 together with statutory interest and attorney’s fees.

This constitutes the decision and order of the Court.

Dated:Brooklyn, New York

March 30, 2006

DELORES J. THOMAS

Judge Civil Court

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, New York County (Donna G. Recant, J.), entered January 29, 2004, which granted defendant summary judgment dismissing the complaint.

PER CURIAM:

Order (Donna G. Recant), entered January 29, 2004, affirmed, without costs.

In this action to recover no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the health care services were not provided by the plaintiff or its employees, but by an independent contractor. Civil Court granted defendant’s motion. We affirm.

Insurance Department regulation 11 NYCRR 65-3.11 (a) (formerly 11 NYCRR 65.15[j][1]) provides, in relevant part, for the payment of no-fault benefits “directly to the applicant . . . or upon assignment by the applicant . . . [to] the providers of health care services . . . .” Where such services are not performed by the billing provider or its employees, but by a treating provider who is an independent contractor, the billing provider is not entitled to direct payment of assigned no-fault benefits under 11 NYCRR 65-3.11(a) (see New York Insurance General Counsel Opinion No. 05-03-21 [2005] and Opinion No. 01-02-13 [2001]; see also A.B. Medical Services PLLC v Liberty Mutual Ins. Co., 9 Misc 3d 36 [2005]).

The unrefuted evidence establishes that the health care services for which plaintiff seeks no-fault benefits were performed by a treating physician who was an independent contractor, not plaintiff’s employee. Accordingly, plaintiff is not properly considered a “provider” authorized to bill under the no-fault law.

This constitutes the decision and order of the court.
Decision Date: March 30, 2006

Civil Court of the City of New York, Kings County

36916/03

Arlene P. Bluth, J.

Plaintiff’s instant motion for summary judgment calls upon this Court to clarify what facts a first-party No-Fault plaintiff must set forth in order to establish that its claim is “overdue.”

Plaintiff argues that “overdue” means “not paid,” and so the affidavit in support of the motion must only state that the bills have not been paid. Defendant urges that a bill is “overdue” only if it has not been paid or properly denied, and so the affidavit in support of plaintiff’s motion must so state. [*2]For the following reasons, this Court agrees with defendant, and since plaintiff’s motion did not address the denials, plaintiff has failed to fulfill its burden and the motion is denied.

In this action, plaintiff New York Craniofacial Care, P.C. seeks to recover first-party No-Fault benefits in the amount of $12,253.28, plus statutory interest, costs, and attorneys fees, for healthcare services allegedly rendered to its assignors, Maria Vega, Christopher A. Mendez, Daniel Rodriguez, Marsha Rasin, and Julio Suazo. According to the attorney’s affirmation in support of this motion, plaintiff seeks summary judgment only on the claims pertaining to Ms. Vega, Ms. Rasin, and Mr. Suazo, for the sum of $6,122.75. Plaintiff argues that its claims were submitted to defendant, have not been paid, and are now overdue. Defendant opposes the motion on the grounds that plaintiff has not made out its prima facie case, and that, in any event, defendant timely denied the claims pertaining to Ms. Rasin and Mr. Suazo and settled the claims pertaining to Ms. Vega.

A healthcare provider in a No-Fault case for first-party benefits establishes its prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was submitted to the defendant, and that payment of no-fault benefits is overdue. See 11 NYCRR § 65-3.8(a)(1),(c); Careplus Med. Supply, Inc. v Allstate Ins. Co., 9 Misc 3d 128(A), 2005 NY Slip Op 51525(U), [App Term, 2nd & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v GEICO, 6 Misc 3d 137(A), 800 NYS2d 344 [App Term, 2d and 11th Jud Dists 2005]. Specifically, subsection 65-3.8(a)(1) of the regulations provides that “No-Fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim . . .” 11 NYCRR § 65-3.8(a)(1). Subsection 65-3.8(c) then states: “Within 30 calendar days after proof of claim is received the insurer shall either pay or deny the claim in whole or in part.” Id. at § 65-3.8(c).

The provider must make out its case in its own moving papers by setting forth the facts entitling the movant to summary judgment. Only if the plaintiff makes out its prima facie case does the burden shift to the defendant to raise a triable issue of fact. See Cugini v System Lumber Co., Inc., 111 AD2d 114, 489 NYS2d 492 [1st Dept 1985]; Victor Gribenko, M.D., P.C. et al. v Allstate Ins. Co., 10 Misc 3d 139(A) [App Term, 2nd & 11th Jud Dists 2005]; A.B. Med. Servs., P.L.L.C. et al. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127(A), 801 NYS2d 229 [App Term, 2nd & 11th Jud Dists 2005].

In support of this motion, plaintiff submits two affidavits. In the first, Fenelly Olivares states that he is the person responsible for submitting plaintiff’s No-Fault claims and that he personally mailed the subject claims to defendant on April 3, May 15, and May 23 of 2002. Thus, his affidavit establishes that the claims were submitted to defendant. See Comprehensive Mental v. Lumbermans Mut. Ins. Co., 4 Misc 3d 133(A) [App Term, 9th & 10th Jud Dists 2004]; Amaze Medical Supply Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A) [App Term, 2nd & 11th Jud Dists 2004].

The second affidavit is from Rachael Newton, the person responsible for handling and tracking whatever response is forthcoming from the insurers on the claims. Ms. Newton states that “[d]efendant did not pay plaintiff’s claims that are the subject of this lawsuit within thirty (30) days. [*3]Accordingly, plaintiff’s claims are now overdue and owing.” Although Ms. Newton would know, her affidavit is absolutely silent as to whether plaintiff received any denials, and if so, on which of the claims. These are material omissions because if defendant timely issued a valid denial of plaintiff’s claims, plaintiff would not be entitled to summary judgment simply because the claims remained unpaid. A claim that has been timely (and validly) denied is not due. Of course, if it is not due, it cannot be overdue. If, on the other hand, plaintiff had shown in its moving affidavit that there were no denials, or that the denials were late or otherwise invalid and thus a nullity, plaintiff’s claims would be overdue, and plaintiff would be prima facie entitled to judgment. None of those facts, however, may be gleaned from Ms. Newton’s affidavit.

At oral argument, plaintiff’s counsel urged that plaintiff need not mention anything about denials at all. Rather, counsel argued, all that is necessary is for plaintiff to state that the claims have not been paid and thus are overdue. In support of her argument, counsel relied upon the language of subsection 65-3.8 (a)(1), quoted above, which defines an overdue claim as one that has not been paid within 30 days of submission. See 11 NYCRR § 65-3.8(a)(1). This Court, however, believes that 11 NYCRR § 65-3.8(a)(1) cannot be read in a vacuum. Subsection 65-3.8(c) makes clear that the 30-day rule entails a failure to pay or deny the claim within 30 days. To wit, “[w]ithin 30 calendar days after proof of claim is received the insurer shall either pay or deny the claim in whole or in part.” 11 NYCRR § 65-3.8(c). The problem with plaintiff’s counsel’s approach is that it invites providers to bring disingenuous summary judgment motions alleging that their claims are overdue even when they are well aware that they received valid, timely denials.

Plaintiff’s counsel correctly noted that the Appellate Term routinely uses the phrase “that payment of no-fault benefits is overdue” when enumerating the elements of plaintiff’s prima facie case. See, e.g., PDG Psychological, P.C. v Utica Mut. Ins. Co., 2006 NY Slip Op 50246(U) [App Term, 2nd & 11th Jud Dists]; Ocean Diagnostic Imaging, P.C. v Allstate Ins. Co., 10 Misc 3d 145(A) [App Term, 2nd & 11th Jud Dists 2006]; Ocean Diagnostic Imaging, P.C. v AIU Ins. Co., 10 Misc 3d 139(A) [App Term, 9th & 10th Jud Dists 2005]. In the Court’s view, however, that phrase is merely a shorthand for “that the claim has not been paid or denied within 30 days.” Indeed, some Appellate Division cases make that connection clearer. For example, in Mt. Sinai Hospital v Allstate Insurance Co., the Second Department opined that “sufficient evidentiary proof was submitted to establish, prima facie, that the defendant, Allstate Insurance Company . . . did not pay or deny Mount Sinai’s claim for no-fault medical payments within 30 days as required by 11 NYCRR 65-3.8(c).” Mt. Sinai Hosp. v Allstate Ins. Co., 2006 NY Slip Op 00490, —- NYS2d —- [2nd Dept]. Similarly, in Nyack Hospital v General Motors Acceptance Corp., the Second Department found that the plaintiff had “established its prima facie entitlement to summary judgment by demonstrating that the defendants received the subject billing forms, and failed to either pay or deny the claim within the requisite statutory time frame.” Nyack Hosp. v Gen. Motors Acceptance Corp., 2005 NY Slip Op 10107, 808 NYS2d 399, 402 [2nd Dept]. Since a claim is overdue only if it has been neither paid nor properly denied, and plaintiff states only that its claims were not paid, plaintiff has not made out its prima facie case.

By its holding, this Court is not increasing the burden of a plaintiff healthcare provider moving for summary judgment in a No-Fault case. Indeed, once the plaintiff sets forth that its claim has not been paid or timely denied, the defendant must still come forward with competent [*4]proof to rebut that assertion in order to defeat the motion. All this Court is requiring is that the plaintiff make clear in its moving papers that it is entitled to judgment on its claims. The fact that the plaintiff’s claims have not been paid does not, in and of itself, entitle the plaintiff to summary judgment as a matter of law.

The Court recognizes that a statement that “the claim has not been paid or timely denied” is boilerplate, and the absence of such a statement may seem like a mere technicality. But it is not. Every statement in an affidavit is sworn to under the penalties of perjury. If the affiant knows that there was a timely denial of the unpaid claim, then it would be perjurious to state that “the claim has not been . . . timely denied.” Indeed, under that circumstance, it would be improper for the provider to seek summary judgment based on untimeliness of the denial, although it would be free to move based upon some other ground.

By requiring plaintiff to set forth the basis of its entitlement to summary judgment, the Court is merely holding plaintiff to the requirements of CPLR Section 3212. Although amended and recodified over the years, the essence of the moving plaintiff’s burden has not changed since the enactment of Rule 113 of the Rules of Civil Practice, Section 3212’s predecessor, over 85 years ago: Someone with personal knowledge must swear or affirm both to the material facts which entitle plaintiff to judgment and must also address the known defenses. Under Rule 113, the plaintiff had to affirmatively “stat[e] . . . his belief that there is no defense to the action.” ^[FN1] Under CPLR Section 3212(b), the affidavit in support “shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.” CPLR § 3212(b). What the difference may be between “stating” (Rule 113) and “showing” (3212(b)) is an interesting question (see Farrell v Shelby Mut. Ins. Co., 18 Misc 2d 459, 461,189 NYS2d 66 [Sup Ct, Erie County 1959]), but the Court need not determine it here because this plaintiff neglected any mention of a defense at all. Ms. Newton’s affidavit neither states nor shows that there is no defense or that the defenses have no merit. Indeed, since proper denials would constitute a defense to the action, plaintiff’s failure to address whether the claims were denied makes the moving affidavit not only insufficient but disingenuous as well.

Ms. Newton’s affidavit is deficient in several other respects as well. First, according to plaintiff’s counsel’s affirmation, the instant motion relates only to the claims for three of the five assignors in this case, yet the affidavit fails to set forth this material fact. Second, the affidavit fails to specifically reference which of the seven claims from the three assignors it addresses, or the amounts thereof. Third, the affidavit does not make clear whether the ground for the motion is the same, or different, for each of the seven claims from the three assignors. When a suit combines [*5]multiple claims and/or assignors, it is incumbent upon the moving party to identify in the affidavit each claim and/or assignor to which the motion is directed, and the reason the movant is entitled to judgment upon each one. See Smith v City of New York, 288 AD2d 369, 370, 733 NYS2d 474 [2d Dept 2001] (denying summary judgment motion where proponents “fail[ed] to specifically address each separate claim” with appropriate proof). Rather than do so here, plaintiff submitted an affidavit that could have been attached to any motion for summary judgment between these parties.^[FN2]

Based on all of the foregoing, the Court finds that plaintiff has not made out its prima facie case for entitlement to summary judgment as a matter of law. Therefore, the Court need not reach the sufficiency of defendant’s opposition.

Accordingly, plaintiff’s motion is denied.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by_______ on ________

Footnotes

Footnote 1: Rule 113, which first came into effect in 1921, provided as follows: “Summary Judgment. When an answer is served in an action to recover a debt or liquidated demand arising, 1. On a contract, express or implied. . . the answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or any other person having knowledge of the facts, verifying the cause of action and stating the amount claimed, and his belief that there is no defense to the action; unless the defendant by affidavit, or other proof, shall show such facts as may be deemed, by the judge hearing the motion, sufficient to entitle him to defend.”

Footnote 2: The affidavit states: “This Affidavit is being submitted in support of NEW YORK CRANIOFACIAL PC’s application for a judgment against ALLSTATE INS. CO.” (emphasis in original).

—[*1]In an action to recover no-fault medical payments, the plaintiffs New York and Presbyterian Hospital, as assignee of William Browne, and New York Hospital Medical Center of Queens, as assignee of Amy Kazane, appeal from an order of the Supreme Court, Nassau County (Feinman, J.), dated July 15, 2005, which granted the defendant’s motion to vacate a judgment of the same court entered March 11, 2005, upon its failure to appear or answer the complaint, and for leave to serve a late answer.

Ordered that the order is affirmed, with costs.

To vacate its default, the defendant was required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]). The defendant made that showing. Accordingly, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the judgment entered upon its failure to appear or answer the complaint, and for leave to interpose a late answer. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ann E. O’Shea, J.), entered December 29, 2004. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In opposition to the motion, defendant argued that plaintiff’s assignor failed to attend examinations under oath (EUOs) and that the accident was in furtherance of an insurance fraud scheme. However, defendant failed to prove that the applicable insurance policy contained an endorsement authorizing EUOs as a form of verification (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]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 57 [App Term, 2d & 11th Jud Dists 2004]). Thus, the EUO requests did not toll the 30-day claim determination period (11 NYCRR 65-3.8 [c]) rendering the denial untimely (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [*2][App Term, 2d & 11th Jud Dists]).

Although the defense based on a claim that the accident was staged in furtherance of a scheme to defraud survives the preclusive effect of an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), none of the investigative reports and statements offered in support of the fraud claim were in admissible form. Moreover, the attorney’s factual allegations in support of the defense constituted mere inadmissible hearsay and the affirmation of defendant’s claims representative, standing alone, did not establish a triable issue of fraud. Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for [*3]
summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

In the first instance, it is important to note that the majority finds that the defendant properly demanded that the assignor appear for an examination under oath (EUO) on several occasions in accordance with the regulations, and that on each occasion the plaintiff’s assignor failed to appear.

The majority does not contest that the revised regulations issued by the Department of Insurance provide that the plaintiff’s assignor must submit to EUOs as often as the insurer “may reasonably” require (11 NYCRR 65-1.1[d]). Indeed, it is also
uncontested that the claims at issue herein were submitted subsequent to the effective date of the revised regulations. One would surmise that the majority would therefore conclude that this action must be dismissed.

However, that is not the case. Despite all these facts and circumstances, the majority finds that the defendant failed to raise a triable issue of fact solely because it did not produce a copy of the actual contract of insurance to establish that the “right” to demand an EUO was contained in the contract. This holding appears inappropriate, at least when one considers the long line of decisions involving EUOs prior to the issuance of this revised regulation (pre-April 5, 2002) (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]). In that line of cases, it was held that even though the policy of insurance required submission to an EUO, demands for same had no significance inasmuch as there was no specific provision in the regulations providing for such an examination, a finding that I do not agree with.

Now that the Insurance Department revised its regulations to meet said holdings, this Court denies their effect by now requiring the defendant to produce a copy of the insurance policy when it was never required to do so in the past.

It is for this reason that I dissent and would affirm the lower court’s denial of the plaintiff’s motion for summary judgment.
Decision Date: March 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 October 29, 2004. The order denied plaintiffs’ motion for summary judgment.

Order modified by granting plaintiff A.B. Medical Services PLLC partial summary judgment in the sum of $11,903.39, and plaintiff D.A.V. Chiropractic P.C. summary judgment in the sum of $134.80; as so modified, affirmed without costs. [*2]

Appeal as taken by plaintiff Lvov Acupuncture P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established their entitlement to summary judgment as to all their claims by proof that they submitted statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). We note that an absent index number on one of numerous documents submitted in support of an otherwise properly indexed motion was an inappropriate ground to deny the relief sought. While all papers submitted to a court must bear the action’s index number (see CPLR 2101 [c]; Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.5), such a defect is not jurisdictional, and is waived if the opposing party fails to object by returning the paper to the party serving it within two days of receipt “with a statement of particular objections” (CPLR 2101 [f]; Neveloff v Faxton Children’s Hosp. & Rehabilitation Ctr., 227 AD2d 457, 457 [1996]; Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In any event, absent prejudice to a “substantial right of a party,” such defects should be disregarded (CPLR 2101 [f]; e.g. Gau v Kramer, 289 AD2d 804, 805 [2001]).

We also do not agree that the allegedly defective proof of assignments merited the motion’s outright denial. Defendant failed timely to seek verification of the assignments or even specifically to allege a deficiency in the assignments in its claim denial forms, and thereby “waive[d] . . . any defenses with respect [to them]” (Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50790[U] [App Term, 2d & 11th Jud Dists]; see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The court below also incorrectly determined that all claim denials were timely; in fact, they were untimely as to numerous claims, specifically, A.B. Medical Services PLLC’s claims with respect to assignor Micheline for $205.46, $182.37, $564.48, $218.35, $71.06, $230.10, and $604.24; with respect to assignor Garraud for $182.37, $586.66, $218.35, $120.00, $230.10, $604.24, $1,972.08, $1,999.12, $71.06, and $71.40; and with respect to assignor Guerrier for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08. As to plaintiff D.A.V. Chiropractic P.C.’s claim for $134.80 for treatment rendered to Guerrier, defendant proved no claim denial
whatsoever. Absent a tolling of the statutory claim determination period or proof that defendant established a triable defense which survives the preclusive effect of an untimely denial, summary judgment should have been granted as to these claims.

As to all of A.B. Medical Services PLLC’s claims regarding assignor Micheline, aside from the claim for $250.88, defendant denied the claims, in part, because plaintiff’s assignor failed to attend a requested examination under oath. However, defendant produced no documentary proof that it mailed assignor a written examination request, nor did its affiant assert personal knowledge of actual mailing or of facts creating a presumption of same, nor was there [*3]any admission of receipt by plaintiff, its assignor, or assignor’s representative (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). Additionally, defendant also offered no proof that the instant insurance policy contained an endorsement authorizing such a form of verification (id.). Thus, defendant failed to toll the claim determination periods by a proper verification request.

Insofar as defendant denied certain of the claims on the ground that plaintiff A.B. Medical Services PLLC is not formed and operated “in accordance with Article 15 of the [Business Corporation Law],” a defense sounding in fraud (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005] [“State Farm’s complaint centers on fraud in the [*4]
corporate form rather than on the quality of care provided”]) which survives the preclusion sanction (id. at 320), defendant failed to assert a factual basis in its opposition papers sufficient to support a “founded belief” that A.B. Medical Services PLLC is ineligible to obtain no-fault benefits by reason of a fraudulent corporate filing (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Given A.B. Medical Services PLLC’s unrebutted proof that it has a duly registered corporate presence in New York, defendant’s bare, conclusory assertion in opposition to the motion, that said plaintiff is not formed or operated in accordance with the Business Corporation Law, failed to establish a triable issue of material fact.

The remaining, conclusorily asserted defenses, that the billing is “inaccurate or misleading” and not in accordance with the fee schedules, that plaintiff failed to prove the employment status of the particular provider, and that the treatment “was not related to the accident,” all fail to survive the preclusive effect of an untimely denial, and in any event, as to the claims timely denied, they are without merit (id.; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581, 582 [2005]; New York Hosp. Med. Ctr. of Queens v Country-wide Ins. Co., 295 AD2d 583, 586 [2002]; Rockaway Blvd. Med. P.C. [*5]
v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]; Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864[U] [App Term, 9th & 10th Jud Dists]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

As for all claims regarding assignor Garraud, whether timely or untimely denied, the defenses and merits thereof are as previously stated. Additionally, the peer review report submitted in opposition to the motion, cited as a basis for the denial of plaintiff A.B. Medical Services PLLC’s claims for $1,972.08 and $1,999.12, failed to invoke the penalties of perjury (Lubrano v Papandreou, 262 AD2d 457, 457 [1999]; Tattegrain v New York City Trans. Auth., 2002 NY Slip Op 40296[U] [App Term, 2d & 11th Jud Dists]) and there is no reference to CPLR 2106 upon which it may be inferred that the affiant invoked the language of the statute (Jones v Schmitt, 7 Misc 3d 47, 48 [App Term, 2d & 11th Jud Dists 2005]), nor did defendant “offer[ ] an[ ] acceptable excuse as to why [it] failed to obtain a sworn, admissible report” (Lubrano v Papandreou, 262 [*6]
AD2d at 458; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, defendant’s untimely denial of these claims precludes the defense asserted in the report. As to defendant’s alleged demands to conduct independent medical examinations (IMEs) of assignor Garraud, defendant offered no proof of mailing of any such demands nor did its affiant state sufficient facts upon which a presumption of mailing may be inferred (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra). Thus, summary judgment should have been granted as to all claims for treatment rendered assignor Garraud.

As to the claims for treatment rendered Guerrier, aside from the above-noted claims which were untimely denied or for which no denial was proved, Guerrier admitted, via a letter from his counsel to defendant, that he failed to attend two properly scheduled independent medical examinations and two follow-up examinations. Unsatisfied IME requests made prior to a claim’s filing remove the presumption of medical necessity which attaches to the claim forms, and absent additional proof of medical necessity, a provider’s motion for summary judgment based solely on the proof of claims must be denied (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). Upon assignor’s conceded failure to attend those examinations, there remains a triable issue of claimant’s assertion they were improperly sought, and whether plaintiff can offer a valid excuse for the nonattendance, and if not, whether the treatment for said claims was medically necessary (e.g. A.B. Med. Services PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]). Therefore, as to the claims for $1,972.08, $1,999.12, $699.68, $71.06 (submitted 2/24/03), $260.64, $71.06 (submitted 3/31/02), $71.40, $71.06 (submitted 4/28/04), and $62.72, for treatment rendered Guerrier, summary judgment was properly denied.

To summarize, partial summary judgment should have been granted to plaintiff A.B. Medical Services PLLC in the sum of $11,903.39, representing claims for treatment rendered assignor Micheline and Garraud, and, with respect to the claims of Guerrier, the claims for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08, which were untimely denied. Summary judgment should also have been granted as to plaintiff D.A.V. Chiropractic P.C.’s claim for $134.80. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder as to all claims for which summary judgment is
granted, and for all further proceedings on plaintiff A.B. Medical Services PLLC’s remaining claims for treatment rendered assignor Guerrier.

Since none of plaintiff Lvov Acupuncture P.C.’s claims for treatment rendered its assignors was asserted in the motion below, it was not aggrieved by the court’s determination of the order from which it appeals, and said appeal is dismissed (see CPLR 5511; Praeger v Praeger, 162 AD2d 671 [1990]).

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

Golia, J., concurs in part and dissents in part 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.
A.B. MEDICAL SERVICES PLLC
D.A.V. CHIROPRACTIC P.C.
LVOV ACUPUNCTURE P.C.
a/a/o RAYMOND MICHELINE, YVELYNE GARRAUD
and FLAVIE GUERRIER,
Appellants,

-against-

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY,
Respondent.

Golia, J., concurs in part and dissents in part in the following memorandum.

I concur in the dismissal of the appeal taken by plaintiff Lvov Acupuncture P.C. and dissent as to the granting of partial summary judgment in favor of the remaining plaintiffs.

Contrary to the holding of the majority, I find that the claims were never “completed” and therefore the 30-day time period in which to pay or deny the claims has never commenced. The plaintiffs, in an attempt to establish a prima facie entitlement to judgment, acknowledged that the defendant sent timely requests for verification. Although plaintiffs asserted that they sent responses to those requests for verifications, plaintiffs failed to provide any proof of mailing the responses.

Accordingly, I find that the claims process has never been completed and therefore the time in which the defendant has to pay or deny has not started to run against the defendant.
Decision Date: March 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 (Peter Paul Sweeney, J.), entered August 1, 2005. The order granted defendant’s motion to compel responses to its bill of particulars and discovery demands, and denied plaintiff’s cross motion for summary judgment.

Order modified by denying defendant’s motion insofar as it sought to compel plaintiff to respond to its demand for a bill of particulars, with leave to defendant to serve an amended demand in accordance with the decision herein within 30 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to respond to its bill of particulars, its demand for records, and its request for an examination before trial or, in the alternative, striking plaintiff’s pleadings. Plaintiff cross-moved for summary judgment, which motion defendant opposed. Thereafter, the court below granted defendant’s motion, directing plaintiff to respond to the bill of particulars and to “produce a witness with knowledge of facts in the complaint.” The court denied plaintiff’s cross motion, finding that plaintiff “failed to prove its prima facie case no proof of mailing assignment of benefits.”

A review of the record indicates that plaintiff established its prima facie entitlement to [*2]summary judgment by proof of submission of its 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]). Plaintiff established submission of the claim by annexing defendant’s denial of claim form to its moving papers, which states that defendant received the claim (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Contrary to the determination of the court below, plaintiff was not required to establish the proof of mailing of its assignment of benefits form as part of its prima facie case inasmuch as plaintiff established that it submitted a proper NF-3 claim form containing a verification of treatment by attending physician which states that an assignment of benefits form was attached (see 11 NYCRR 65-3.11 [b] [2]), and said form was annexed to plaintiff’s moving papers. Since defendant did not allege any deficiency in the assignment of claim form in its denial, it waived any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). Defendant’s remaining contentions regarding plaintiff’s prima facie entitlement to summary judgment lack merit. The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant received plaintiff’s claim on March 8, 2004, which it timely denied on March 29, 2004, on the basis of a peer review finding a lack of medical necessity. Upon a review of the denial and affirmed peer review report annexed to defendant’s opposition papers, we find that they “fully and explicitly” set forth the reasons for the denial (see e.g. 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’s remaining contentions regarding the denial lack merit. Consequently, defendant raised a triable issue of fact and the court below properly denied plaintiff’s cross motion for summary judgment.

Furthermore, plaintiff failed to establish that defendant’s discovery demands were irrelevant, privileged or confidential (see CPLR 3101, 3103). Defendant has demonstrated its entitlement to discovery since it timely denied the claim based on the lack of medical necessity and it is not precluded from asserting said defense.

With respect to defendant’s demand for a bill of particulars, we note that the purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial; its purpose is not to furnish evidentiary material (see e.g. Napolitano v Polichetti, 23 AD3d 534 [2005]). The demand for a bill of particulars herein improperly contains numerous requests for evidentiary information. It is not the function of the court to prune or correct a palpably improper demand. Under the circumstances, defendant should be afforded the opportunity to serve an amended demand (see Fiorella v Fiorella, 132 AD2d 643 [1987]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 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 (Eileen Nadelson, J.), entered March 15, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion is granted dismissing the complaint.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, in opposition to plaintiff’s motion and in support of its cross motion for summary judgment, contended that it was not obligated to pay or deny a claim until requested verification had been provided (see 11 NYCRR 65-3.8 [b] [3]), and that plaintiff and its assignor [*2]had failed to respond to its timely requests for verification in the form of an examination under oath. Inasmuch as plaintiff and its assignor did not respond to its verification requests, the period within which it was required to respond to plaintiff’s claims did not begin to run, and any claim for payment was premature (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

While defendant did not cross-appeal from so much of the order as denied its cross motion, we note that an appellate court may search the record and grant summary judgment in favor of a party even in the absence of an appeal by that party with respect to a cause of action or issue that is the subject of the motion before the court (CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Urias v Orange County Agric. Socy., 7 AD3d 515 [2004]; Novoselov v Rizzo, 6 Misc 3d 132[A], 2005 NY Slip Op 50104[U] [App Term, 2d & 11th Jud Dists]).

In searching the record, and in view of our determination herein that plaintiff did not respond to defendant’s requests for verification, it is our opinion that defendant’s cross motion for summary judgment should be granted and the complaint dismissed (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; Elite Chiropractic Servs., P.C. v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op 51735[U] [App Term, 1st Dept]).

Pesce, P.J., and Rios, 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., GOLIA and RIOS, JJ.
OCEAN DIAGNOSTIC IMAGING, P.C.
a/a/o Dennis Sandiford,

Appellant,

-against-
NATIONWIDE MUTUAL 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 disagree 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: March 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 (Ellen M. Spodek, J.), entered January 3, 2005. The order, insofar as appealed from as limited by plaintiffs’ brief, denied plaintiffs’ motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiff health care providers established a prima facie entitlement to summary judgment by proof that they submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Consequently, the burden shifted to defendant to raise a triable issue of fact. [*2]

Defendant argued that it properly denied the claims based on the failure of plaintiffs’ assignor to appear for examinations under oath (EUOs). The revised insurance regulations, effective on April 5, 2002, which are applicable herein, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). However, in order to assert the defense of failure to appear for scheduled EUOs, the “insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]; see also 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]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs. Therefore, the failure of plaintiffs’ assignor to appear for EUOs cannot constitute grounds for denial of no-fault benefits (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, supra; S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). An insurer’s defense that the collision was in furtherance of an insurance fraud scheme is not subject to the 30-day preclusion rule (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), and is non-waivable. In support of its defense of fraud, defendant submitted the affirmation of its attorney who alleged that the matter was referred to the Special Investigative Unit because plaintiffs’ assignor was purportedly not in the insured vehicle at the time of the accident and was seen by the adverse driver arriving at the scene following the accident. However, the
defendant’s attorney lacked personal knowledge of the investigation and the circumstances giving rise to the investigation (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Moreover, the unsworn letter by the adverse driver, attached to the attorney’s affirmation, did not constitute competent proof in admissible form (Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra), and defendant failed to proffer an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). The affidavit of defendant’s claims representative merely set forth conclusory allegations of fraud. Thus, defendant’s submissions are insufficient to raise triable issues of fact pertaining to its defense of fraud. [*3]

Accordingly, plaintiffs’ motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

I agree that the defendant failed to submit sufficient proof to establish that the demands for an examination under oath (EUO) of the assignor were properly mailed. However, I strongly disagree with the majority in requiring the defendant to produce a copy of the underlying contract to establish the existence of the endorsement requiring the “assignor” to submit to an EUO.

The regulations do not require such production and neither the plaintiff nor the assignor raised the issue by denying the existence of such endorsement. I do not believe this Court should create an additional burden for the defendant that is not required by the statute or the regulation and I would therefore adhere to my earlier dissent in A.B. Med. Servs. PLLC v Allstate Ins. Co. (No. 2004-830 K C [App Term 2d & 11th Jud Dists, July 7, 2005]).

My dissent in this case is, however, much more direct.

It is abundantly clear to me that defendant has presented 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]). The belief is founded upon a detailed statement taken of the driver of the “offending” vehicle who stated that although he was involved in the accident and remained at the scene for 2 hours, he “did not observe any passengers inside the vehicle.”

Inasmuch as the underlying eligibility for this claim is predicated upon the assignor being a passenger in the insured vehicle, the statement by the other driver, if true, would establish that the alleged injuries do not arise out of this incident.

The only real issue concerning the sufficiency of this statement is the fact that it is unsworn and which my colleagues hold inadmissable as evidence. However, there is a long line of cases that stand for the proposition that even though a statement may be inadmissable and subject to objection, it may be used for the purpose of defeating a summary judgment motion (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Narvaez v NYRAC, 290 AD2d 400 [2003]).

This is especially true when the witness in question is presumably available to testify (Levbarg v City of New York, 282 AD2d 239 [2001]).
Decision Date: March 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 (Donald S. Kurtz, J.), entered January 18, 2005. The order granted plaintiffs’ motion for summary judgment.

Order reversed without costs and plaintiffs’ motion for summary judgment denied.

In an action to recover first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [were submitted] in a timely manner” and that bills for the services rendered to the [*2]respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). While an insurer defendant’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that the plaintiff sent, and that the defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 25545 [App Term, 2d & 11th Jud Dists]; Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]), in the instant case, there are discrepancies between the claim forms attached to the plaintiffs’ moving papers and the defendant’s denial of claim forms, which are not explained on the record. Accordingly, said denial of claim forms are inadequate to establish mailing of the claim forms. Since plaintiffs did not provide proof of proper mailing of the claim forms, the order of the court below should be reversed and plaintiffs’ motion for summary judgment denied.

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

Golia, J., concurs in a separate memorandum.

MAGNEZIT MEDICAL CARE, P.C.
a/a/o BEATA OCHMAN, EDWIN ROBLES,
GREGOR SHVARTSMAN and
THE LAW OFFICE OF MOSHE D. FULD, P.C.,

Respondents,

-against-

NEW YORK CENTRAL MUTUAL FIRE INS. CO.,
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 disagree 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: March 27, 2006