SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered March 18, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment denied and matter remanded to the court below for all further proceedings.In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the [*2]
amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries were causally unrelated to the accident, despite the untimely denial of the claim (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The “accident analysis report” (referred to by defendant as the “low impact study”), accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a
triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should not have been granted and the matter is remanded for further proceedings.
Decision Date: April 22, 2005

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 (A. Fisher Rubin, J), entered on November 20, 2003, which denied their motion for summary judgment.

Order modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and upon searching the record, summary judgment is granted in favor of defendant dismissing the causes of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

The motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, in searching the record, the claim by said plaintiff is hereby dismissed. The revised insurance regulations, applicable to claims submitted on or after April 5, 2002, “no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11 [a]; Insurance Law § 5102 [a] [1])” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [*2][2003]). Accordingly, while “[s]uch reasonable and necessary expenses remain reimbursable (see Insurance Law § 5102 [a] [3] . . . [they are] nonassignable)” (id.). The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs subsequent to the effective date of the revised regulations. Under the authority of Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d 854, supra), such costs are nonassignable, and the claim by Square Synagogue Transportation Inc. must be dismissed.

Plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that they submitted their claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law
§ 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In opposition to said plaintiffs’ motion for summary judgment, defendant has failed to raise any triable issue of fact.

Defendant denied the claims submitted by these plaintiffs on the ground that the injuries claimed by plaintiffs’ assignor could not have occurred due to the subject motor vehicle accident, based upon an “Injury Potential Analysis” and peer review report. Despite the untimely denial of plaintiffs’ claims, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). In the instant case, however, the affidavit submitted by defendant’s claims representative was insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Moreover, the unsworn “Injury Potential Analysis” did not constitute competent proof in admissible form (see Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [2004] [App Term, 2d & 11th Jud Dists]; Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists]), 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]). Further, the peer review report submitted by defendant in opposition to the motion in support of its defense of a lack of causal nexus between the accident and the injuries claimed by plaintiffs’ assignor, was unsworn. Since said report was not in admissible form, it was insufficient to warrant denial of plaintiffs’ motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. 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]).

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Lvov Acupuncture P.C., and the matter is remanded 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 and votes to modify the order and deny plaintiffs’ motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiffs’ motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (____ Misc 3d ____, 2004 NY Slip Op 24501 [App Term, 2d & 11th Jud Dists]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit which makes reference to such report, are sufficient for the purpose of raising a triable issue of fact. This is especially true where there is an allegation of fraud. Those issues are best left to the trier of fact.

Accordingly, I would modify the order of the lower court and would deny the plaintiffs’ motion for summary judgment.
Decision Date: April 22, 2005

—[*1]

Carpinello, J. Appeals (1) from an order of the Supreme Court (Lamont, J.), entered December 19, 2003 in Albany County, which granted plaintiff’s motion for summary judgment and declared that plaintiff had no duty to defend or indemnify defendant John Rafferty in an underlying personal injury action, and (2) from an order of said court, entered February 5, 2004 in Albany County, which granted plaintiff’s motion for summary judgment dismissing defendant Robert Carman’s counterclaim for no-fault insurance benefits.

The following facts are undisputed. On the evening of March 5, 2002, defendant John Rafferty, plaintiff’s insured, and defendant Robert Carman were fighting outside, adjacent to Rafferty’s car. The car itself was parked a mere two feet in front of a garage. In an attempt to extricate himself from the situation, Rafferty got into his car. Carman, in turn, placed himself between the garage door and the car while his friend blocked Rafferty’s car from the rear. Rafferty accelerated and drove Carman into the garage door, severely injuring his leg.

In this action, plaintiff successfully obtained orders declaring that it has no obligation to defend or indemnify Rafferty or to compensate Carman because the conduct engaged in by the former was subject to the policy’s exclusion for intentional acts. Both Rafferty and Carman [*2]appeal contending that Rafferty only “lightly” stepped on the accelerator intending only to scare Carman, not injure him. We are unpersuaded.

It is now well settled that there exists “a narrow class of cases in which the intentional act exclusion applies regardless of the insured’s subjective intent” (Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002]). In such cases, “the intentional act exclusion [applies] if the injury [is] ‘inherent in the nature’ of the wrongful act” (id., quoting Allstate Ins. Co. v Mugavero, 79 NY2d 153, 161 [1992]). An injury is held to be “inherent in the nature” of an act when the act is so exceptional that “cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm” (Allstate Ins. Co. v Mugavero, supra at 161, 160).

In these type of cases, “the theoretical possibility that the insured lacked the subjective intent to cause the harm” (Pistolesi v Nationwide Mut. Fire Ins. Co., 223 AD2d 94, 97 [1996], lv denied 88 NY2d 816 [1996]) does not preclude a finding that, for the purposes of the policy’s intentional act exclusion, such injuries are as a matter of law “intentionally caused” (Allstate Ins. Co. v Mugavero, supra at 161; see Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 771 [1998]; Doyle v Allstate Ins. Co., 255 AD2d 795, 796-797 [1998]). Here, Carman’s injuries were inherent in the act of placing a car in forward motion when but two feet of space existed between the car, a pedestrian and an immovable object, clearly invoking the intentional act exclusion of Rafferty’s policy. For similar reasons, Carman’s injuries were not caused by an “accident” and, thus, he was not eligible for no-fault benefits under the policy (see Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 928 [2003]). Thus, Supreme Court properly granted summary judgment in plaintiff’s favor.

Cardona, P.J., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the orders are affirmed, with costs.

District Court, Nassau County

32030/02

Randy Sue Marber, J.

Before this Court is another motion for summary judgment pursuant to CPLR §3212

brought by the plaintiff. In addition, the defendant cross-moves, pursuant to CPLR §3216, for an order dismissing the above entitled action for want of prosecution, and pursuant to CPLR 3212 dismissing the plaintiff’s complaint for failure to provide proof of its claim. Although not set forth in the Notice of Cross-Motion, the defendant also seeks to dismiss the complaint because the services were provided by independent contractors hired by the plaintiff, a professional corporation. The plaintiff cross-moved to compel discovery. The Court notes that by a stipulation of the parties, the plaintiff’s motion for summary judgment was withdrawn.

The plaintiff, a health care provider, commenced this action to recover the sum of $4,020.66, in first party no-fault benefits for medical services rendered to its assignor.

The defendant has complied with the statutory requirements of CPLR §3216(b), in that issue has been joined, one year has elapsed since the joinder of issue, and the defendant has served by certified mail/return receipt request a ninety (90) day written demand to the plaintiff to proceed with the action.

The ninety (90) day notice was sent to the plaintiff on May 14, 2004. Accordingly, the [*2]plaintiff had until August 16, 2004 to file a notice of trial or request more time within the prescribed time period.

Page 2

Index No. 32030/02

On or about September 28, 2004, after the ninety (90) day period had expired, the plaintiff served a motion for summary judgment and further asserted that it did not file a notice of trial because there was outstanding discovery.

To withstand the defendants’ motion to dismiss, the plaintiff was obliged to demonstrate both a justifiable excuse for failing to file a notice of trial within ninety (90) days of the defendant’s demand and a meritorious cause of action (see, CPLR 3216[e]; Nichols v. Agents Serv. Corp., 133 AD2d 912, 913). The plaintiff has not demonstrated a justifiable excuse for failing to file a notice of trial. The plaintiff claims that the reason for the delay was that there was a pending summary judgment motion that has not yet been decided and that discovery remains outstanding. The proffered excuse is insufficient to justify the delay (cf., Carmen v. West Hudson Hosp., 129 AD2d 868; MacLeod v. Nolte, 106 AD2d 860). If additional time was required, the plaintiff’s remedy was a motion either to vacate the ninety (90) day notice or to secure an extension of the ninety (90) day period (see, Mason v. Simmons, 139 AD2d 880, 881). Moreover, the summary judgment motion was not filed until after the ninety (90) day period.

Accordingly, the plaintiff’s action is hereby dismissed.

This constitutes the decision and order of this Court.

Dated: April 20, 2005

ENTER:

_________________________________

Randy Sue Marber, District Court Judge

Civil Court of the City of New York, Kings County

9422KCV2005

Eileen N. Nadelson, J.

Petition to Vacate a Master Arbitrator’s Award Motion for Summary Judgment

In deciding this matter the court considered the following:

Notice of Petition and annexed Affidavits and Affirmations

Exhibits

Affirmation in Opposition

Memoranda in Support and in Opposition to the Petition

This matter involves the disputed billing of $3947.96 which was denied by the arbitrator based upon the grounds of lack of medical necessity. Petitioner, the medical provider, appealed the arbitrator’s award to a Master Arbitrator, alleging that the arbitrator’s decision was arbitrary, capricious, irrational and without a plausible basis in fact. Based on that argument, Petitioner asked the Master Arbitrator to vacate the award pursuant to CPLR section 7511(b)(1). The Master Arbitrator, however, affirmed the arbitrator’s award.

Petitioner, pursuant to CPLR 7511, now moves this court to vacate the decision of the Master Arbitrator as arbitrary and capricious.

Petitioner originally submitted a claim for $4,354.30 for acupuncture treatments it rendered to the allegedly injured assignor. Respondent insurer made partial payments in the amount of $406.34, and Petitioner filed a request for arbitration.

The initial arbitrator stated that he reviewed the documentation submitted which reflect [*2]that Respondent issued timely denials based on a lack of medical necessity, following a peer review and the assignor’s failure to appear for an Independent Medical Examination. In his conclusion, the initial arbitrator stated that the denials issued by the insurer were of no consequence, and that the crucial fact is the medical necessity of the treatments. The Master Arbitrator, in his affirmation of the initial decision, stated that the initial arbitrator’s statement that the timeliness of the denials was of no consequence was erroneous, but harmless error under the circumstances.

Petitioner alleges that the initial arbitrator required it to prove medical necessity which is an incorrect interpretation of its prima facie burden of proof. Petitioner states that, to meet its burden, it only has to prove that it provided services, mailed a claim, and that the claim was not paid or denied within thirty days. The Master Arbitrator disagreed, and confirmed the arbitration award.

In his decision, the Master Arbitrator states that the initial decision was neither arbitrary nor capricious, and that statutory requirements mandate that a medical provider establish the necessity of its medical treatments. Insurance Law sec. 5102, 11 NYCRR 65-1.1. Further, since the insurer did timely deny the claim, proving such necessity is part of the provider’s burden. Cf In re Regal Imaging aao Ginzberg v. State Farm Insurance Co., Index No. 7450/01 (Sup. Ct. Nassau County August 8, 2001).

CPLR section 7511((b)(iii) provides that an arbitrator’s award may be vacated if it is found that the arbitrator exceeded his power or imperfectly executed it. In Petrofsky v. Allstate Insurance Company, 54 NY2d 207, 445 N.Y.S. 2d 77 (1981), the Court of Appeals held that the role of a master arbitrator in insurance cases is to assure that the arbitrator reached a decision in a rational manner, that the decision was not arbitrary and capricious, incorrect as a matter of law, or in excess of policy limits or in conflict with other designated no-fault arbitration proceedings. Therefore, the question to be decided by this court is whether the decision of the arbitrator, as confirmed by the Master Arbitrator, was arbitrary, capricious, or incorrect as a matter of law.

In Park Radiology, P.C. v Allstate Insurance Company, 2 Misc 3d 621, 769 N.Y.S. 2d 870 (Richmond County 2003), a case involving the claim for first party no-fault benefits, the arbitrator, as in the instant case, found that the insurer failed to pay or deny the claim within the prescribed thirty day period. Nevertheless, the arbitrator found that the medical provider failed to establish a prima facie case that the tests performed were medically necessary and so denied the claim. In affirming the award, the master arbitrator cited the Petrofsky case as limiting his ability to vacate an award that is neither arbitrary nor capricious. However, the Civil Court vacated the master arbitrator’s decision and found for the medical provider, asserting that the arbitrator and master arbitrator misconstrued the law.

The law with respect to the burden of proof in first party no-fault claims was established by the court in Bonetti v. Integron National Insurance , 269 AD2d 413, 703 N.Y.S. 2d 217 (2d Dept. 2000). The Bonetti court stated that, with limited exception, an insurer is precluded from [*3]denying a no-fault claim if it fails to timely deny it. Further, an insurer is precluded from challenging the adequacy of a claimant’s proof of medical necessity if it fails to timely deny the claim for no-fault benefits. Vinings Spinal Diagnostic, P.C. v Liberty Mutual Insurance Company, 186 Misc 2d 287, 717 N.Y.S. 2d 466 (Nassau County 2000). This is true despite a contrary position taken by the New York Department of Insurance.

In a recent decision of this court, Kew Gardens Imaging aao Mary maynard v. Liberty Mutual Ins. Co., 2004 NY Slip Op. 51077(U) (Civ. Ct. Kings County 2004), the decision of a Master Arbitrator was overturned because it was determined that no rational basis existed for the arbitration decision. In that case the insurer failed to pay or deny the claim within thirty days, and the arbitrator based his conclusion on the fact that the provider failed to establish the medical necessity of the treatments. This court found that conclusion to be beyond the scope of judicial authority which precludes an insurer from raising any defense, other than lack of coverage, when it fails to deny a claim within thirty days. Insurance Law sec. 5106(a); New York Medical Center of Queens v. Country-Wide Insurance Co., 295 AD2d 583, 744 N.Y.S. 2d 201 (2d Dept. 2002). However, that case is distinguishable from the instant action.

In the case at bar the insurer did deny the claim within the statutory thirty day period. The Master Arbitrator asserted that the initial arbitrator’s conclusion that the timeliness of the denial was of no consequence was error, although harmless in the instant matter. Because Respondent did timely deny the claim, Petitioner must evidence, as part of its prima facie case, the medical necessity of its treatment. This the arbitrator determined it did not do.

An arbitration award will be upheld if it is supported by the evidence and is not arbitrary and capricious. Eagle Insurance Compnay v. First Cardinal Corp., 8 AD3d 483, 778 N.Y.S. 2d 309 (2d Dept. 2004). The arbitrator’s decision is supported by the record, and there is nothing to warrant the vacatur of the award. State Farm Mut. Automobile Ins. Co. v. Arabov, 2 AD3d 531, 767 N.Y.S. 2d 905 (2d Dept. 2003).

Based on the foregoing, Petitioner’s motion is denied and the Master Arbitrator’s award is affirmed.

Dated: April 18, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs, Westchester Medical Center, as assignee of Daniel Cruz, St. Vincent’s Hospital & Medical Center, as assignee of Brian Cardimone, and New York and Presbyterian Hospital, as assignee of Stanislaw Zarod, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated February 6, 2004, as denied their motion for summary judgment on the second and third causes of action.

Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of Daniel Cruz, is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, the motion is granted, and the matter is remitted to Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs St. Vincent’s Hospital & Medical Center, as assignee of Brian Cardimone, and New York and Presbyterian Hospital, as assignee of Stanislaw Zarod.

The Supreme Court erred in denying that branch of the plaintiffs’ motion which was for summary judgment on the second cause of action, which arises from the treatment rendered by St. Vincent’s Hospital & Medical Center (hereinafter St. Vincent’s) to Brian Cardimone, on the ground that “an issue of fact exists as to whether there was payment by the defendant in accordance [*2]with the DRG schedule.” It is undisputed that the defendant failed to pay or deny the claim for Cardimone’s treatment within 30 days after proof of such claim was submitted, nor did the defendant seek any further verification of this claim. Instead, the defendant merely tendered a belated partial payment of the claim. The defendant alleges that St. Vincent’s billed under the wrong “DRG” code, and that it paid in accordance with the correct code. However, since the defendant never sought any verification of the claim, it is precluded from raising this statutory exclusion defense based upon its failure to issue a denial of claim form within 30 days of its receipt of the claim as required by 11 NYCRR 65.15 (g) (3) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]).

The Supreme Court also erred in denying that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action, which arises from the treatment rendered by New York and Presbyterian Hospital to Stanislaw Zarod. With respect to this cause of action, the defendant failed to pay or effectively deny the hospital’s claim within 30 days of its receipt thereof, nor did it seek any further verification of the claim.

As entitlement to the no-fault benefits, as well as statutory interest and an attorney’s fee (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.6) was established, we remit the matter to the Supreme Court, Nassau County, to calculate the amount owed for no-fault benefits, statutory interest, and an attorney’s fee. Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.

—[*1]

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 29, 2002, which, upon granting, in part, the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $229,815.

Ordered that the judgment is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment is awarded to the defendant, and the complaint is dismissed.

Several years before he commenced the instant action, the plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against the defendant to recover no-fault benefits he alleged had been improperly denied (see Insurance Law § 5106 [b]). By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Gaul v American Employers’ Ins. Co., 302 AD2d 875 [2003]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; Gibeault v Home Ins. Co., 221 AD2d 826 [1995]).

Although the defendant did not move for summary judgment dismissing the complaint on the ground that the plaintiff was precluded from maintaining this action, this Court has the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a [*2]nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]). Under the circumstances of this case, as it is clear that the plaintiff is precluded from maintaining this action, we award summary judgment to the defendant and dismiss the complaint.

In light of our determination, we need not reach the defendant’s remaining contentions. H. Miller, J.P., Ritter, Rivera and Spolzino, JJ., concur.

Civil Court of the City of New York, Kings County

105699/04

For petitioner: Gary Tsirelman, P.C., Brooklyn, NY

For respondent: Wollerstein & Futoran, New York, NY

Arlene P. Bluth, J.

Upon the foregoing cited papers, petitioner seeks to vacate a No-Fault Master Arbitrator’s Award pursuant to CPLR § 7511, and respondent seeks to dismiss the petition. For the following reasons, the petition is dismissed.

Respondent argues that this Court lacks personal jurisdiction over it because petitioner failed to properly serve the notice of petition and petition. Petitioner maintains that it properly [*2]served respondent simply by mailing the petition, via regular mail, to Maria Weissman, P.C. It is undisputed that Ms. Weissman is neither employed by respondent nor authorized to receive service of process on its behalf. In fact, Ms. Weissman is not even the attorney who represented respondent in the arbitration. In the lower arbitrator’s award annexed to petitioner’s papers, the cover page lists not Ms. Weissman but “Noreen Campbell, Esq.” as the attorney for respondent. Ms. Weissman is merely the attorney who prepared respondent’s brief before the Master Arbitrator.

Section 7502(a) of the CPLR provides: “A special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy which is not made by motion in a pending action.” The instant matter qualifies as such a “first application.” To commence a special proceeding, a party files a petition (CPLR § 304), notice of which must be served in the same manner as a summons (CPLR § 403(c)). The CPLR provides for various methods of service, but does not provide for service upon a party’s attorney. See CPLR § 308 et seq. Moreover, service of process by regular mail alone is never sufficient. Id.

Therefore, petitioner’s service on Ms. Weissman was insufficient to obtain jurisdiction over respondent. See Matter of Country Wide Ins. Co., 114 AD2d 754, 494 NYS2d 709 [1st Dept 1985]. The cases petitioner cites, including Knickerbocker Insurance Company v. Gilbert, are distinguishable, as they address the sufficiency of serving a notice to stay arbitration upon the very attorney representing the respondent in the pending arbitration. See Knickerbocker Ins. Co., 28 NY2d 57, 65, 320 NYS2d 12, 17 [1971] (describing a notice to stay arbitration as “invited by the notice to arbitrate.”). See also Green Bus Lines, Inc. v. Elliot, 102 Misc 2d 1029, 1032, 424 NYS2d 1019, 1021 [Sup Ct, Queens Cty 1980]. In contrast, this proceeding was brought to vacate an award in an already completed arbitration. Therefore, pursuant to CPLR § 403(c), the notice of petition had to be served in the same manner as a summons. See Star Boxing, Inc. v. DaimlerChrysler Motors Corp., NYLJ, Apr. 8, 2005, at 27, col 1, 2005 NY Slip Op 02669 [2d Dept].

Section 7503(c) of the CPLR specifically provides that service of an application to stay arbitration “may be made upon the adverse party, or upon the attorney if the attorney’s name appears on the demand for arbitration or the notice of intention to arbitrate.” CPLR § 7503(c). But the statute says nothing about serving a notice to vacate a Master Arbitrator’s Award on an attorney. Thus, even if Ms. Weissman’s name appeared on the demand for arbitration or the notice of intention to arbitrate something not alleged or demonstrated here petitioner’s service on Ms. Weissman was improper.

In its reply, petitioner asks this Court for leave to properly serve respondent, and that such service relate back to the date of the original service in order to comply with the 90-day statute of limitation. This Court has no discretion to override the statute of limitation. See Arnold v. Mayal Realty Co., 85 NE2d 616, 617, 299 NY 57, 60 [1949]. Therefore, petitioner’s request must be denied. [*3]

Accordingly, the petition is dismissed for lack of personal jurisdiction.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered April 2, 2004, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff moved for summary judgment. However, in support of its motion, plaintiff relied upon an affidavit which did not establish that the affiant had the
requisite personal knowledge. As a result, the affidavit was of no probative value (see Republic W. Ins. Co. v RCR Bldrs., 268 AD2d 574 [2000]). Consequently, the court
properly denied plaintiff’s motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). [*2]
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief on appeal, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on April 20, 2004, as denied their motion for summary judgment.

Order unanimously modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment in the sum of $11,139.79. We note at the outset that in their brief on appeal, plaintiffs have effectively withdrawn the claim of plaintiff Square Synagogue Transportation Inc. in the sum of $425. Moreover, said plaintiff’s motion for summary judgment as to its claim for $100, which defendant denied receiving, was properly denied since plaintiff’s proof of mailing as to this claim indicates a post date which is prior to the date of the bill. In the absence of any explanation of the discrepancy, plaintiff’s proof is insufficient to establish prima facie entitlement to summary judgment as to this claim. [*2]

With regard to the remaining claims, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted the claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]).

In opposition to plaintiffs’ motion, defendant argued that the claims of A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and Square Synagogue Transportation Inc., in the sum of $7,139.23, were properly denied on the ground that plaintiffs’ assignor failed to attend scheduled independent medical examinations (IMEs).

Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed that defendant issued timely denials based on the nonattendance of plaintiffs’ assignor at pre-claim IMEs scheduled by defendant. Contrary to plaintiffs’ contention, the letter of Transcion Medical P.C., which schedules IMEs for defendant, and defendant’s denial of claim forms, which were submitted as part of plaintiffs’ moving papers, indicated that plaintiffs’ assignor did not appear for all of the scheduled IMEs listed in Transcion’s letter. Under the circumstances presented, in our opinion, such selective attendance by plaintiffs’ assignor established the assignors’ receipt of all IME requests listed in said letter. In the absence of any reasonable excuse for the nonappearance by plaintiffs’ assignor, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to the claim forms. This is so, even though it is uncontroverted that plaintiffs’ assignor attended some of the IMEs. Therefore, its defense of lack of medical necessity of the services provided to plaintiffs’ assignor was still viable and raised a triable issue with respect thereto. Accordingly, the court below properly denied said plaintiffs’ motion for summary judgment in the sum of $7,139.23 (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., Misc 3d , 2004 NY Slip Op 24527, supra).

With regard to the additional claims of Daniel Kim’s Acupuncture P.C. in the amount of $3,475.55, which were timely denied, the stated basis for denial was lack of medical necessity, rather than the failure to appear for an IME. In opposition to the motion for summary judgment, defendant was required to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra). Defendant submitted an unsworn peer review report of an acupuncturist. Since said report was not in admissible form, it was insufficient to warrant denial of said plaintiff’s motion for summary judgment (see CPLR 2106; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & [*3]11th Jud Dists]).

We note that to the extent that the decision of the court below rests on the lack of authentication of the assignments, it is erroneous. 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 and to allege any deficiency in the assignments in its denial of claim forms constitutes a waiver of any defenses with respect thereto (see id; see also 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 order of the court below is modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56, and remanding the matter for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: April 13, 2005