—[*1]

In an action, inter alia, for a judgment declaring that 11 NYCRR 65-4.5 (o) (1) violates procedural due process and is unconstitutional as applied to the plaintiffs, the plaintiffs appeal from an order of the Supreme Court, Kings County (G. Aronin, J.), dated July 30, 2004, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that 11 NYCRR 65-4.5 (o) (1) does not violate procedural due process.

The plaintiffs contend that 11 NYCRR 65-4.5 (o) (1) violates the Due Process Clause of the United States and New York State Constitutions because the regulation, when used in conjunction with 11 NYCRR 65-4.2 (b) (3) (i), allows an arbitrator in a proceeding pursuant to Insurance Law § 5106 to independently raise any issue that the arbitrator deems relevant to making an award, without affording the applicant a meaningful opportunity to respond. In addition to their claim that the regulation violates procedural due process, the plaintiffs contend that it is unconstitutional as applied to them.

The Supreme Court properly dismissed the plaintiffs’ unconstitutional-as-applied claim on the ground that they failed to exhaust their administrative remedies (see Matter of Beyah v Scully, 143 AD2d 903, 904 [1988]). [*2]

Contrary to the plaintiffs’ contention, the challenged regulation comports with procedural due process (see Mathews v Eldridge, 424 US 319 [1976]). There is a strong government interest in according the arbitrator discretion in order to promptly resolve claims and free the courts for more important tasks (see Governor’s Mem approving L 1973, ch 13, 1973 NY Legis Ann, at 298), and the regulations promulgated by the Superintendent of Insurance are adequate to mitigate the risk of an erroneous denial of an applicant’s claim since they allow for administrative and judicial review of an arbitrator’s determination (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413 [2000]; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290 [2000]). Consequently, the Supreme Court properly dismissed the plaintiffs’ procedural due process claim (see Matter of Vector E. Realty Corp. v Abrams, 89 AD2d 453, 457 [1982]; Matter of K.L., 302 AD2d 388, 391, affd 1 NY3d 362 [2004]).

However, since this is an action, inter alia, for a declaratory judgment, the Supreme Court should have made a declaration as to the constitutionality of 11 NYCRR 65-4.5 (o) (1) (see Lanza v Wagner, 11 NY2d 317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]; Goldberg v Corcoran, 153 AD2d 113, 118 [1989]). Accordingly, the matter is remitted to the Supreme Court, Kings County, for entry of a judgment declaring that 11 NYCRR 65-4.5 (o) (1) does not violate procedural due process.

The plaintiffs’ remaining contentions are without merit. Cozier, J.P., Krausman, Skelos and Lunn, JJ., concur.

[*1]

Civil Court of the City of New York, Queens County, December 1, 2005

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (James K. Hogan of counsel), for defendant. Belesi, Donovan & Conroy, P.C., Garden City (Wayne H. Wink, Jr., of counsel), for plaintiff.

OPINION OF THE COURT

Joseph J. Esposito, J.

Ordered that upon the foregoing cited papers and after conference, defendant’s motion for summary judgment is denied.

This action was commenced by plaintiff to recover overdue no-fault payments under the provisions of Insurance Law § 5101 et seq., and its implementing regulations. The services that are the subject of this action were provided by plaintiff to its assignor on December 7, 1999 and December 16, 1999.

Defendant moves for summary judgment dismissing plaintiff’s action. The primary basis for such relief asserted by defendant, and the only one for which defendant has submitted any admissible evidentiary support, is the allegation that the plaintiff, Multiquest, PLLC, was fraudulently organized at the time the services were rendered to the assignor and it is therefore not entitled to recover on this claim for no-fault benefits. Defendant’s evidence in support consists of a copy of Multiquest’s articles of organization listing Yeugeny Gorbatov and Kathryn Clark, a licensed psychologist, as “original members and original managers,” as well as other corporate documents and a copy of a certified transcript of the April 26, 2004 examination under oath of Kathryn Clark. Ms. Clark states in her testimony that she was never an owner or member of Multiquest and that her name was used [*2]without her knowledge or consent.

Though not specified by the defendant’s attorney’s affirmation in support of this motion, defendant’s primary argument appears to rely on 11 NYCRR 65-3.16 (a) (12) (eff Apr. 4, 2002) which states:

“A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005] [Mallela III]), the New York Court of Appeals was presented with the following certified question from the United States Court of Appeals for the Second Circuit.

“Is a medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508, and N.Y. Education Law § 6507 (4) (c) entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq. and its implementing regulations, for medical services rendered by licensed medical practitioners?” (State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 510 [2004] [Mallela II].)

The Court of Appeals, relying on 11 NYCRR 65-3.16 (a) (12), answered the certified question in the negative, stating, “The Superintendent’s regulation allowing carriers to withhold reimbursement from fraudulently licensed medical corporations governs this case. We hold that on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law.” (Id. at 321.)

The Court of Appeals however left unanswered the question of whether 11 NYCRR 65-3.16 (a) (12) is applicable to claims accruing prior to the effective date of this section. The Mallela III decision addresses this issue only to the extent of stating that “[b]ecause we rest our holding on the Superintendent’s amended regulation declaring fraudulently licensed corporations ineligible for reimbursement, no cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before that regulation’s effective date of April 4, 2002.” (Id. at 322.) This statement by the Court of Appeals addresses only whether an insurer would have a cause of action to recover payments already made to the illegally incorporated medical provider, but leaves open the question of whether the section is applicable to unpaid claims that accrued prior to April 4, 2002.

It is this court’s determination that 11 NYCRR 65-3.16 (a) (12) is not retroactively applicable to any claim for treatment provided prior to April 4, 2002. The Mallela II court discusses but does not decide this issue. (See State Farm v Mallela, 372 F3d 500, 508 [2004].) “Retroactivity is not favored in the law. Thus . . . administrative rules will not be construed to have retroactive effect unless their language requires this result.” (Matter of Good Samaritan Hosp. v Axelrod, 150 AD2d 775, 777 [2d Dept 1989], quoting Bowen v Georgetown Univ. Hospital, 488 US 204, 208 [1988].) “There is a presumption that legislative rules are to be applied only prospectively.” (Matter of Linsley v Gallman, 38 AD2d 367, 369 [3d Dept 1972].) Based on the holdings in Good Samaritan and Linsley, and in the absence of any language in 11 NYCRR 65-3.16 (a) (12) suggesting that it should be given retroactive effect, this defense is unavailable for any claim arising from treatment provided prior to April 4, 2002.

The other defenses raised by defendant’s motion papers, specifically allegations of excessive billing [*3]and defects in the assignment of benefits form are unavailable to the defendant as defendant has failed to show that these defenses were properly preserved in a timely denial of the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]) and do not fall within the Chubb exceptions to the 30-day rule (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).

The court also notes that the defendant’s motion papers are defective in that they do not include a complete copy of the pleadings as required by CPLR 3212 (b). There is no copy of the summons and complaint included within defendant’s moving papers.

Supreme Court, Bronx County

20926/2004

Dianne T. Renwick, J.

In this special proceeding, pursuant to CPLR Article 75, petitioner CNA Insurance^[FN1] seeks a permanent stay of arbitration of a claim for supplemental underinsured motorist (SUM) benefits sought by claimant Kim Hampton. The SUM claim stems from an automobile accident involving a van insured by petitioner. At the time of the accident, claimant Hampton had been riding as a passenger in the van. After settling her personal injury action against the tortfeasor,^[FN2] Hampton sought SUM benefits under the endorsement of the policy issued by petitioner CNA Insurance. Petitioner, however, avers that claimant is not entitled to SUM benefits because the subject [*2]automobile accident was not the cause of her femur fracture. (The femur is the thighbone; it extends from the hip to the knee.) This Court now renders a determination based upon the testimonial and documentary evidence presented at the framed issue hearing, which suggests two alternative causes of claimant’s femur fracture, the impact of the car collision and a slip and fall on sidewalk ice.

Framed Issue Hearing

Eyewitnesses’ Description of the Car Accident

At the framed issue hearing, claimant Kim Hampton, who is legally blind, testified that on March 11, 1999, she was riding as a passenger in a van owned by her employer Advocates for the Blind. Hampton was seated, her lap seat belt fastened, in the first row of bench seats, behind the front passenger seat. There was an arm rest in the down position next to Hampton’s right leg. Upon crossing the intersection of 67th Street and 78th Avenue, Queens, the van collided with a another vehicle that had failed to obey a stop sign. As a result, the van sustained a “very heavy” impact to the front passenger side, causing it to swerve, propel forward and strike a building. Hampton reported that the impact from the first collision was “very heavy,” but the seat belt prevented her from falling off her seat. The impact caused Hampton’s glasses to fly off her face, and her upper right leg, from just above the knee, to up around her hip, to hit either the armrest or the door of the van. Hampton believed her upper right leg hit the door or the armrest, but she could not actually see without her glasses. Upon impact, Hampton felt a lot of pain in her right leg. Hampton then felt a second impact when the vehicle struck the building.

Immediately after the second impact, Hampton smelled smoke and got scared. Feeling that the van might explode, she moved to exit the van. She turned her body to the right, toward the rear passenger side door. While remaining seated, Hampton, who was heavy set (weighing close to 240 pounds) placed her left foot on the van’s interior step, in an effort to move her body toward the side door. She then opened the door and moved herself onto the floor of the van by sliding onto her bottom, while her leg remained dangling in a partially straightened position. Hampton grabbed the van door in an attempt to assist herself in standing up, but she could not do it and fell onto the sidewalk, directly in front of the van.

According to the driver of the van, Ruperto Duncan, the impact from the car was “very heavy.” After the van ran into the building and began to “smoke,” he exited the van’s driver’s side and walked around to the passenger’s side. Duncan then observed Hampton lying injured on the ground. Duncan informed the police personnel, who arrived at the scene to assist Hampton, that she had fallen on sidewalk ice upon exiting the van. At the hearing, Duncan, however, conceded that he did not actually witness her fall. In fact, Duncan testified that he did not speak with Hampton about the accident. He had no recollection how he got that information, but assumed that she had fallen on ice.

Conflicting Medical Opinions As to the Cause of the Femur Fracture

At the framed issue hearing, respondent presented a medical expert, Dr. Lynne Richardson, the attending physician at Elmhurst Hospital emergency room on the date of the accident. Dr. Richardson supervised the resident physician, Dr. Stuart Miller, who first saw claimant Hampton in the emergency room. Based upon her examination of the claimant and a review of the pertinent medical record, Dr. Richardson opines, with a reasonable degree of medical certainty, that the femur fracture was caused by the two vehicle impacts on the day of the [*3]accident. Dr. Richardson explains that femur fractures are fairly uncommon as a result of a fall from a standing position because it takes a significant impact to break the femur. In addition, Dr. Richardson considered the fact that, immediately after the collision, the claimant experienced severe pain, which is one of the symptoms of femur fracture. Under the circumstances, Dr. Richardson surmises, the most likely scenario in this case was that the claimant suffered the fracture during the impacts to her lower body within the van, and then fell while attempting to exit the van due to the inability of her injured leg to bear her weight.

Petitioner CNA Insurance’s medical expert, Dr. Andrew Bazos, a neurosurgeon, disagrees with Dr. Richardson’s conclusion. Based upon his review of the pertinent medical record and the witnesses’ statements detailing the accident, Dr. Bazos opines, with a reasonable degree of medical certainty, that the femur fracture resulted from a sidewalk fall on ice, as was reported throughout the medical record, namely the “ambulance triage notes,” the “Rehab Medicine Referral to Psychiatry” and the “resident’s notes.” Dr. Bazos explains that femur fractures are caused by events that involve a lot force; it takes a sudden forceful impact to break the bone. In the doctor’s estimation, the collision could not have created sufficient force to break the femur bone. As support, the doctor relied on the fact that respondent had been wearing her seat belt prior to the accident and that there was no visible deformity in any part of the van near where the injured person had been sitting. In addition, Dr. Bazos explains, had the claimant’s femur been fractured during the car collision, the claimant could not have been able to attempt to get up, as she described, due to the severity of the injury and the claimant’s weight.

Discussion

Courts may stay arbitration where “the particular claim sought to be arbitrated is outside the scope of the agreement to arbitrate.” See County of Rockland v. Primiano Constr. Co., 51 NY2d 1, 7 (1980); CPLR §7503 (b); Sisters of St. John the Baptist, Providence Rest. Convent v. Phillips R. Geraghty Constructor, 67 NY2d 997, 999 (1986). Courts have held that to qualify for no-fault benefits in the form of underinsured/or uninsured motorist coverage, the insured vehicle must be the proximate cause of the claimant’s injuries. See e.g., Walton v. Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 (1996); Farm Family Cas. Ins. Co. v. Trapani, 301 AD2d 740 (3rd Dept. 2003); New York Cent. Mut. Fire Insurance v. Hayden, 209 AD2d 927 (4th Dept. 1994).

The seminal case on this subject is Walton v. Lumbersmen Mut. Cas. Co., 88 NY2d 211, 215 (1996), where the Court of Appeals held that “the vehicle must be the proximate cause of the plaintiff’s injury before the absolute liability imposed by the statute arises.” As the Court explained, “no-fault first party benefits are available only when the motor vehicle is the instrumentality that causes the injury plaintiff claims.” 88 NY2d 211, 213 (1996). Accordingly, “when a plaintiff’s injury is caused by an instrumentality other than the insured vehicle, liability for the losses sustained are more properly addressed outside the area of no-fault motor vehicle insurance.” Id at 214. Such interpretation, the Court held, “reflects the legislature’s intent to draw the line between motor vehicle accidents and all other types of torts and to remove only the former from the domain of common law tort litigation.” Id.

Here, as fully described above, the parties have presented two possible causes of respondent-claimant’s injury (femur fracture). Claimant asserts that her injury was caused by the impact to her body against the van during the collision. In contrast, petitioner claims that Hampton’s injuries had no casual connection to the insured vehicle; that it was caused by a [*4]sidewalk slip and fall on ice. This Court’s determination of which version is more credible would be dispositive of the issue of whether the injury falls within the ambit of no-fault insurance, as having been caused by the insured vehicle. Of course, claimant-respondent’s version falls within the ambit of no-fault insurance since it is based upon the claim that the femur fracture was caused by the impact of her body against the van.

Conversely, petitioner’s version, that claimant’s femur fracture was caused by a sidewalk slip and fall on ice, upon exiting the van, would not support a claim for no-fault insurance, since under such version the insured vehicle would not have been the instrumentality that caused the injury. Contrary to respondent’s allegations, proximate cause is not established merely because injuries occurred while entering or exiting a vehicle. Adopting this approach would be tantamount to equating proximate cause with the term “occupying” a vehicle. However, as noted above, the law is abundantly clear that more than occupancy is required to establish a casual link between a motor vehicle and a claimant’s injuries. Instead, what is required is that the motor vehicle was the actual instrumentality which produced the injuries. See e.g., Walton v. Lumbermens Mut. Cas. Ins. Co, supra; Matter of Farm Family Cas. Ins. Co. v. Trapani, supra; New York Central Mutual Fire Insurance v. Mark Hayden, supra.

Indeed, courts have consistently held that just because an injury occurs in or near a motor vehicle does not mean necessarily that a vehicle was the proximate cause of the claimant’s injuries. For example, in Sochinski v. Bankers & Shippers Ins. Co., 221 AD2d 889 ( 3rd Dept. 1995), the Appellate Division held that the claimant did not qualify for first-party, no-fault benefits even though the injuries occurred while the claimant was in occupancy of the motor vehicle. In Sochinski, the insured was allegedly injured when airborne particles caused by sandblasting at a highway construction site entered the car’s open window and lodged in his eyes. The court held that the claimant did not qualify for first-party, no-fault benefits for his injury to his eye because such injury would have occurred even if he had not been in his motor vehicle. Since the motor vehicle was wholly incidental to the event which produced the injury, it was not the instrumentality, i.e. proximate cause, of the injury. Id.

Likewise, in New York Cent. Mut. Fire Ins. Co. v. Hayden, 209 AD2d 927 (4th Dept. 1994), an injury that occurred immediately upon alighting a motor vehicle did not fall within the ambit of no-fault law because the vehicle itself was not the instrumentality that caused the claimant’s injury. In New York Cent. Mut. Ins. Co. v. Mayden, supra, the personal injuries suffered by the claimant-passenger occurred when he got out of the vehicle and fell through a hole in a railroad trestle after the vehicle’s left wheels became stuck in a gap between the track on the trestle and the road for vehicles. The court found that the injuries were not covered by the passenger’s uninsured motorist (SUM) insurance since the accident did not arise out of the inherent nature of the vehicle. Id.

Conversely, in Farm Family Cas. Ins. Co. v. Trapani, 301 AD2d 740 (3rd Dept. 2003), the claimant’s injuries that occurred while alighting a motor vehicle were deemed to fall within the ambit of no-fault law where the vehicle itself was the instrumentality that caused the claimant’s injuries. In Trapani, supra, the driver lost control of her car and struck a utility pole. The car’s impact moved the pole, causing its power lines to short out and rain sparks and hot pieces of wire down onto the 75-year-old claimant, who was standing in her garden along the roadway near her home. In attempting to run from this hazard, claimant fell and sustained injuries to her head and [*5]left knee. The court found that the vehicle proximately caused the claimant’s injuries since the hazard that caused the fall was triggered by the impact of the car on the pole. Id.

Here, assuming, that claimant Hampton’s injuries are attributed to a slip and fall accident on sidewalk ice, this Court would have to find that such injury does not fall within the ambit of supplemental underinsured motorist coverage, based upon the reasoning of Walton v. Lumbersmen Mutual Casualty Ins. Co., supra, and the aforementioned analogous cases. The hazard that triggered the sidewalk slip and fall —the ice — cannot be attributed, like Farm Family Casualty Ins. Co. v. Trapani, supra, to the use or operation of the automobile. Instead, like in New York Cent. Ins. Co. v. Hayden, supra, and Sochinski v. Bankers and Shippers Insurance Company, supra, the fall would have occurred even if claimant had not been in his motor vehicle. Under the circumstances, the vehicle was the mere situs of the accident, and thus cannot be the proximate cause of the injury. Cf. Lumbermen’s Mut. Cas. Co. v. Logan, 88 AD2d 971(2nd Dept. 1982).

The question that remains is which version does this Court credit as the actual cause of claimant’s femur fracture. In making such determination this Court is guided by several principles applicable in the context of a petition to stay arbitration of a claim for no-fault benefits. The petitioner bears the burden of showing sufficient evidence to justify a stay of the arbitration of respondent’s claim for SUM benefits. See Aetna Casualty & Surety Ins. Co. v. McMichael, 176 AD2d 315 (2nd Dept. 1991); In Re. Nationwide Ins. Co. 170 AD2d 683 (2d Dept. 1991). It is also the general rule that when there is ambiguity as to existence of coverage, doubt must be resolved in favor of the insured and against the insurer. See, Handelsman v. Sea Ins. Co., 85 NY2d 96, 101 (1994). Moreover, where possible, courts will generally opt in favor of ruling for no-fault coverage of an insured under the facts of the particular case, unless such a ruling would not be in cadence with the statutory language and purpose. See e.g., Johnson v. Hartford Insurance Co., 100 Misc 2d 367, 369 (NY Sup.Ct. 1979).

Evaluated under such legal matrix, the proof offered by petitioner is not sufficient to grant a permanent stay of the arbitration of the claim for SUM benefits, when juxtaposed with the proof offered by respondent-claimant. Both medical experts’ conflicting opinions as to the cause of the femur fracture have a legitimate factual foundation, but based on different versions of the accident. Under the circumstances, the determination of the cause of claimant’s injury is dependent, in substantial measure, upon an assessment of the credibility of claimant’s account of her injury, which is more consonant with plaintiff’s expert’s medical opinion. In assessing claimant’s credibility, this Court concludes that Hampton’s testimony was consistent, clear, candid, and, therefore, credible.

This Court, however, is troubled by the fact that the medical evidence is replete with the statement that claimant had fallen on sidewalk ice. Nevertheless, such troubling statement is, in the context of this case, insufficient to counterbalance respondent’s evidence. Significantly, no evidence from any witness was submitted directly attributing the troubling statement to claimant Hampton. Under the circumstance, it is equally likely that the sole source of the statement was the driver who reported it to the police personnel, albeit conceding at the hearing that he had not actually witnessed claimant’s fall; nor could he recollect the source of the statement. Viewed in its totality, the evidence preponderates in favor of a finding that the femur fracture was caused by the impact of the van’s collision with the automobile and building.

[*6]Conclusion

For the foregoing reasons, this petition is denied to the extent of declaring and adjudging that petitioner failed to meet its burden of establishing that claimant’s injuries were not proximately caused by the insured motor vehicle. The Clerk is directed to dismiss the petition forthwith. Accordingly, the parties are directed to proceed to arbitration of the Supplemental Underinsured Motorist (SUM) claim.

This constitutes the Decision, Order, and Judgment of the Court.

Dated: November 29, 2005__________________________

Bronx, New YorkHon. Dianne T. Renwick, JSC

Footnotes

Footnote 1:Transcontinental Insurance Company does business as CNA Insurance Company.

Footnote 2:The van was struck by a motor vehicle driven and owned, respectively, by Margaret and Herbert Adask.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied a motion for partial summary judgment by plaintiff A.B. Medical Services PLLC in the sum of $4,410.22.

Order reversed without costs, motion by plaintiff A.B. Medical Services PLLC for partial summary judgment in the sum of $4,410.22 granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due thereon, and for all further proceedings on its remaining claims.

Appeal by plaintiffs Lvov Acupuncture P.C. and Somun Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff A.B. Medical Services PLLC (A.B. Medical) established a prima facie entitlement to partial summary judgment in the sum of $4,410.22 by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]).

It is uncontroverted on the record that defendant did not timely pay or deny A.B. [*2]Medical’s claim for $439.04, which said plaintiff has limited to $439.02, within the 30-day statutory period (11 NYCRR 65-3.8 [c]). Accordingly, defendant is precluded, with certain exceptions not relevant here, from raising most defenses with regard to said claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The record furthermore does not contain a denial of claim for plaintiff’s claim in the sum of $1,972.08, which plaintiff established was submitted to defendant on August 16, 2002. Even assuming that defendant’s denial of claim form dated August 30, 2002, may be deemed to constitute a timely denial of plaintiff’s claim for $1,972.08, on the stated ground that plaintiff’s assignor failed to appear for IMEs, the form is fatally defective since it omitted numerous items of requested information, and thus was incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Moreover, in opposition to plaintiff’s motion, defendant has failed to proffer competent proof in admissible form that it mailed the requests scheduling the IMEs and has otherwise failed to address this defense. Accordingly, defendant has failed to raise triable issues of fact warranting denial of plaintiff’s motion with respect to this claim.

While defendant apparently timely denied plaintiff’s claim for $1,999.12, a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory or vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564, supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra). The claim for $1,999.12 was in effect denied for failure to establish medical necessity. Although defendant was not required to attach to its denial of claim form the peer review upon which the denial was purportedly based (see 11 NYCRR 65-3.8 [b] [4]; see also A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]), the defendant’s denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity, and it is therefore precluded from asserting said defense (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra) . Accordingly, even though the peer review submitted by defendant in opposition to plaintiff’s motion constituted proof in admissible form and set forth a sufficient factual basis and medical rationale for denial of the claim, said report cannot remedy the factual insufficiency of defendant’s denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra).

We note that the lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the motion for partial summary judgment by plaintiff A.B. Medical Services PLLC is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) [*3]and the regulations promulgated thereunder, and for all further proceedings on its remaining claims.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them are dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Rios and Belen, JJ., concur.

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

Golia, J.P. dissents and votes to hold the matter in abeyance while remanding it to the court below for a hearing.

A review of the papers submitted on appeal as well as the trial court’s file reveals a disturbing fact that requires further investigation before I can issue a decision on the merits.

It appears, from the documents that were submitted to the trial court, that either the plaintiffs or the defendant have submitted, what appears to be an altered copy of the NF-10 “Denial of Claim” form. The NF-10 form was originally submitted by the defendant as a formal denial to the underlying claim for payment.

The first page of the NF-10 form submitted by both the defendant and the plaintiffs appears to be identical. However, the second page of each document is significantly different from each other.

The copy of the second page of the NF-10 form submitted by the plaintiffs lists the Applicant for Benefits as “AB Medical Office,” whereas the first page identifies the provider as “AB Medical Services.” The first and second pages of defendant’s document shows the provider as “AB Medical Services.” AB Medical Office is not mentioned anywhere in defendant’s NF-10 form.

Additionally, the explanation as to why the claim was denied on each form differs materially. The plaintiffs’ submission contains the following statement:

“BASED ON THE ABOVE MEDICAL DOCUMENTS THAT I HAVE REVIEWED, I DO NOT RECOMMEND REIMBURSEMENT FOR EMG, NERVE CONDUCTION STUDIES, F-WAVES AND H-REFLEXES BILLED ON JULY 2, 2002 BY A.B. MEDICAL SERVICES, PLLC IN THE AMOUNT OF $1999.12 AS MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

“BASED ON PEER REVIEW BY DR. JOSEPH GREGORACE DO – MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

In addition, the plaintiffs also submitted certain documents as exhibits as proof of mailing. Although those documents appear to be official U.S. Postal forms, they certainly do not contain information relating to postal documents. For example, the document contains a “check mark” on the box that indicates that the items were sent by “Registered” mail, yet the numbers entered under the column entitled “Article Number” have no relation to generated numbers by the Post Office. Further, there was no registered mail receipt attached. Indeed, those numbers appear to be the claim numbers which were assigned by the insurance carrier. I further note that one of the documents contains a list of thirteen items and a stamp indicating a charge of $3.90 [*4]whereas a similar document also contains a list of thirteen items with a stamp indicating a charge of $4.50 without explanation of the difference in charges.

In light of the above discrepancies, I cannot render an opinion as to the merits of
the within matter. Unlike the majority, I do not choose to ignore the maxim of “falsus in uno, falsus in omnibus” (Deering v Metcalf 74 NY 501, 503 [1878]).

Although the majority – unjustifiably, in my view – chooses to ignore these discrepancies, I cannot. It is my opinion that this matter should be remanded to the court below to determine, on the record, the reliability and the trustworthiness of the documents presented by each party.
Decision Date: November 21, 2005

—[*1]

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated March 30, 2005, which denied its motion for summary judgment on its claim for statutory interest and an award of an attorney’s fee, and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The plaintiff, Nyack Hospital (hereinafter the hospital), as assignee of Stacey Gersten, made a prima facie showing of entitlement to judgment as a matter of law on its claim for statutory interest and an attorney’s fee, by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue when made (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005], lv denied 5 NY3d 713 [2005]).

The defendant, Encompass Insurance Company (hereinafter the insurance company), waived any defense based on the lack of a valid assignment by the claimant to the hospital, by failing to timely object to the completeness of the forms or seek verification of the assignment (see Hospital [*2]for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]). Moreover, the two letters from the insurance company to the hospital, dated May 28, 2004, and June 23, 2004, respectively, stating that the claimant’s hospital records had been received but that payment was delayed pending completion of the insurance company’s investigation, did not toll the 30-day statutory period for paying or denying the claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314 [U] [2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [2004]).

We reject the insurance company’s argument that it was entitled to delay payment while awaiting a no-fault application to be submitted, as 11 NYCRR 65.15 (d) (6) specifically 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” (emphasis added).

Therefore, since the hospital established that the insurance company’s payment of the no-fault billing was overdue, and the insurance company did not raise a triable issue of fact, the hospital was entitled to summary judgment on its claim for statutory interest and an attorney’s fee. Accordingly, we remit the matter to the Supreme Court, Nassau County, to calculate the amount due the hospital. H. Miller, J.P., Luciano, Fisher and Covello, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from that portion of an order of Civil Court, New York County (Debra Rose Samuels, J.), entered February 6, 2004, which denied their motion for summary judgment.

PER CURIAM:

Order (Debra Rose Samuels, J.) entered February 6, 2004, reversed, with $10 costs, plaintiffs’ motion for summary judgment is granted in the amount demanded in the complaint and the matter is remanded to Civil Court for a calculation of statutory interest and an assessment of attorneys’ fees due thereon, and for entry of judgment.

In this action to recover first party no-fault benefits for medical services rendered to its assignors, the plaintiff health care providers established a prima facie entitlement to summary judgment by evidentiary proof that they submitted claims between December 27, 2002 and April 8, 2003, setting forth the facts and the amounts thereof, and that payment of no-fault benefits was overdue as defendant neither paid nor denied the claims within 30 days as required by Insurance Law § 5106(a) (see Mary Immaculate Hospital v Allstate Ins. Co., 5 AD3d 742 [2004]).

We find unavailing defendant’s argument that plaintiffs are not entitled to judgment because the assignors failed to submit to examinations under oath (EUOs). While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the “Conditions” section that an injured person “shall … as may reasonably be [*2]required submit to examinations under oath …,” defendant did not establish that the insurance policy in effect contained the no-fault endorsement authorizing EUOs. Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault protection created by the statute and implementing regulations cannot be qualified by the conditions of the liability portion of the policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022U [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: November 16, 2005

Civil Court of the City of New York, Kings County

33857/04

Arlene P. Bluth, J.

Upon the foregoing cited papers and after oral argument, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, plaintiff’s motion is denied. [*2]

In this action, plaintiff First Help Acupuncture, P.C. seeks to recover first-party No-Fault benefits in the amount of $3,000.00, plus statutory, interest, costs, and attorneys’ fees, for healthcare services allegedly rendered to its assignor, Zach Glot. Plaintiff argues that defendant failed to timely deny its No-Fault claims. However, because of deficiencies in its supporting affidavit, plaintiff fails to put admissible evidence before this Court sufficient to make out its prima facie case.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]. The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts. See CPLR § 3212(b). If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis v Romeo, 177 AD2d 616, 576 NYS2d 323 [2nd Dept 1991]. If, however, the moving party sustains its burden, the opposing party must submit evidence of a triable issue of fact in order to defeat the motion. See Rebecchi v. Whitmore, 172 AD2d 600, 568 NYSd 423 [2nd Dept 1991].

In the No-fault context, a healthcare provider establishes 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 NYCRR § 65-3.8(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]. If and only if the plaintiff makes out its prima facie case, the burden shifts to the defendant to raise a triable issue of fact.

In support of this motion, plaintiff submits the affirmation of its attorney and an affidavit from an employee of plaintiff. Also annexed to the motion are various bills and an assignment of benefits for the assignor, and two NF-10 denial forms. These documents are critical to plaintiff’s prima facie case: First, plaintiff needs to submit its completed proof of claims that it alleges have not been paid or timely denied. See Amstel Chiropractic, P.C. v. Omni Indem. Co., 2 Misc 3d 129(A), 784 NYS2d 918 [App Term, 2d and 11th Jud Dists 2004]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A), 784 NYS2d 924 [App Term, 2d & 11th Jud Dists 2004]. Second, plaintiff must establish that it actually mailed its claims to defendant. Absent direct proof of mailing, defendant’s denials once properly before the Court are an admission by the insurer that it received the bills, and thus are proof that the bills were mailed. See A.B. Med. Servs. P.L.L.C. v. New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136(A), 787 NYS2d 675 [App Term, 2nd & 11th Jud Dists 2004]; Willis Acupuncture, P.C. v. GEICO, 6 Misc 3d 1002(A), 800 NYS2d {6 Misc 3d 1002(A)} 359 [Civ Ct, Kings County 2004].

In order for plaintiff’s exhibits to be considered by this Court, the supporting affidavit must lay a proper foundation for their admissibility. “Foundation requirements to qualify a document as a business record fully apply on a motion for summary judgment.” A.B. Med. Servs., P.L.L.C. et al. v Travelers Prop. Cas. Corp., 5 Misc 3d 214, 215, 783 NYS2d 244, 246 [Civ Ct, Kings County 2004]. Plaintiff’s bills are a type of medical office records, and “[m]edical office records are admissible under the business records exception to the hearsay rule, provided a proper foundation is laid for their admissibility.” Faust v McPherson, 4 Misc 3d 89, 91, 783 NYS2d 197, 199 [App Term, 2nd & 11th Jud Dists 2004]. See also Hefte v Bellin, 137 AD2d 406, 524 NYS2d 42 [1st Dept 1988].

A business record is admissible upon proof that (1) it was made in the regular course of business; (2) it was in the regular course of such business to make the record; and (3) the record was made at the time of or shortly after the subject event or transaction. See CPLR § 4518(a); People v. DiSalvo, 284 AD2d 547, 727 NYS2d 146 [2nd Dept 2001]. Only a qualified individual can lay the necessary foundation. See Carrion v McNally & McNally, Inc., 18 AD3d 312, 794 NYS2d 339 [1st Dept 2005]; West Valley Fire District No. 1 v Village of Springville, 294 AD2d 949, 743 NYS2d 215 [4th Dept 2002]; People v DiSalvo, 284 AD2d at 548; Hefte, 137 AD2d at 408. “While it is not necessary that the foundation witness have made the records, or even that he or she be familiar with the particular records in question, it must be shown that the witness has had some familiarity with the doctor’s business practices and procedures.” Faust, 4 Misc 3d at 91. See also Careplus Med. Supply, Inc. v Allstate Ins. Co., 9 Misc 3d 128(A), 2005 NY Slip Op 50525(U) [App Term, 2nd & 11th Jud Dists] (holding that the affidavit of plaintiff’s officer and [*3]billing manager sufficiently “sufficiently set forth his duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy” to be admitted as business records).

In support of the motion, plaintiff presents the affidavit of Andrey Anikeyev. Although the last paragraph of the affidavit recites that the records were made in the regular course of business at the time the services were rendered, and that it is and was plaintiff’s regular course of business to make such records and submit them to the insurer for payment, Mr. Anikeyev does not describe his familiarity with plaintiff’s record-keeping practices and procedures, or explain his role, if any, in the rendering and mailing of bills and the processing of insurance company payments and denials. He does not even provide his job description or actual job title. Mr. Anikeyev simply writes that he is “an employee of Plaintiff.” That is patently insufficient to establish his competency to lay a foundation for the admission of plaintiff’s bills as business records.^[FN1] For all this Court knows, Mr. Anikeyev could be a security guard in plaintiff’s employ.

A court cannot be expected to assume, trust, or infer from an affidavit that the affiant is qualified to lay a foundation for annexed exhibits. The conclusory statement “I have personal knowledge” is not enough particularly where, as here, the affiant is not an individual litigant (i.e., a party to the lawsuit) but an undenominated employee of a party. The witness or affiant must disclose not only what he knows but also the source of his knowledge. See Carrion v McNally & McNally, Inc., 18 AD2d 312, 794 NYS2d 339 [1st Dept 2005]; A.B. Med. Servs., P.L.L.C., et al. v Travelers Prop. Cas. Corp., 6 Misc 3d 53, 791 NYS2d 264 [App Term, 2nd & 11th Jud Dists 2004]; Ocean Diag. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141(A), 798 NYS2d 346 [App Term, 9th & 10th Jud Dists 2004]. The affidavit submitted by plaintiff falls short of what is required.

Nor is the affirmation of plaintiff’s counsel to any avail. It is axiomatic that the affirmation of a party’s attorney “who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment . . . .” Peters v. City of New York, 5 Misc 3d 1020(A), 799 NYS2d 163 [Sup Ct, Kings County 2004]. See also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317, 739 NYS2d 717 [1st Dept 2002]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), 787 NYS2d 675 [App Term, 2nd and 11th Jud Dists 2004]. Plaintiff’s attorney has not claimed any personal knowledge regarding the rendering or mailing of the plaintiff’s bills and the receipt of the denials. Moreover, while an attorney’s affirmation may serve as a vehicle for introducing documents which themselves are in admissible form, such as deposition transcripts (see Zuckerman, 49 NY2d at 563), those are not the circumstances here.

For the foregoing reasons, plaintiff has failed to make out its prima facie case. Therefore, plaintiff is not entitled to summary judgment and 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

[*4]ASN by__________ on __________

Footnotes

Footnote 1: Although the Court need not reach the issue of whether plaintiff has laid a proper foundation to admit defendant’s denials, the Court notes that Mr. Anikeyev cannot possibly be said to have laid a foundation for their admission since his affidavit makes no reference to them. Instead, it merely states: “Defendant failed to issue timely denials and/or timely verification requests.”