SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (J. Asarch, J.), dated October 1, 2003, as denied its motion for summary judgment and cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, 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 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based [*2]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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied. The denial of defendant’s cross motion seeking summary judgment was also correct, inasmuch as the evidence which defendant [*3]
proffered was insufficient to establish, as a matter of law, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557, supra).
Decision Date: April 13, 2005

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, Richmond County (P. Straniere, J.), entered March 9, 2004, which, inter alia, denied its motion to dismiss the complaint.

Order unanimously reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for medical services rendered. The defendant interposed an answer and a demand for a bill of particulars dated September 11, 2000. Notwithstanding this demand and a subsequent letter by defendant’s attorney dated January 11, 2002, plaintiff failed to serve a bill of particulars. By order dated March 14, 2002, the court granted defendant’s unopposed motion to preclude the plaintiff “from offering the particulars at . . . trial” unless the plaintiff served a bill of particulars within 30 days of service of the order with notice of entry. Defendant made a motion returnable December 18, 2003 for an order pursuant to CPLR 3126 to dismiss the complaint for plaintiff’s failure to comply with the order dated March 14, 2002. Plaintiff served a bill of particulars on January 27, 2004. As a result of the plaintiff’s failure to serve a bill of particulars by the date set forth in the conditional order of preclusion, that order became absolute (Michaud v City of New York, 242 AD2d 369 [1997]). In order for the plaintiff to avoid the adverse impact of an order of preclusion, it was incumbent upon him to demonstrate an excusable default and a meritorious claim (Felicciardi v Town of Brookhaven, 205 AD2d 495 [1994]). Plaintiff’s [*2]attorney offered no excuse for the default. Since the plaintiff cannot prove its case without the items demanded in the bill of particulars, defendant’s motion to dismiss the complaint should have been granted.
Decision Date: April 13, 2005

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 (R. Garson, J.), entered on April 2, 2004, which granted plaintiff’s motion for summary judgment in the sum of $1,684.12.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted 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]). Contrary to defendant’s contention, its denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, these respective claims (see 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]). Moreover, the lack of authentication of an [*2]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 [*3]
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]).

In opposition to plaintiff’s contention that the defendant’s denial was untimely, the defendant argues that its 30-day period was extended by its verification requests for examinations under oath (EUOs.) The revised insurance regulations, which took effect on April 5, 2002, 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]). With regard to claims submitted on or after April 5, 2002, an insurer’s request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules (see 11 NYCRR 65-3.5 [b], [e]; 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]). Additionally, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . 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], supra; see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that plaintiff’s claims were submitted subsequent to April 5, 2002. However, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see 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]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. Even assuming the existence of an insurance policy containing the revised endorsement, defendant has nonetheless failed to establish by competent evidence that its EUO verification requests were timely so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). The purported EUO notices dated July 1, 2002, for which there was no admissible proof of mailing, do not, in any event, constitute proper notice of EUOs, as they merely indicate a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, defendant failed to establish a timely denial of the claim and it is thus precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of non-conformity with the Workers’ Compensation schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic and Acupuncture, PLLC 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]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). [*4]
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Gesmer, J.), entered on March 26, 2004, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted 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]). Defendant’s denial of claim forms indicate that defendant did not deny the claim within the statutorily prescribed 30-day period (see 11 NYCRR 65-3.8 [c]), and that its verification requests did not extend the 30-day period since such requests were untimely (11 NYCRR 65-3.8 [a], [b]). Inasmuch as defendant failed to pay or deny the claim within the 30-day period, it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, 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]). The “Accident Analysis” report, referred to by defendant as a “Low Impact Study,” together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal [*2]nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see also Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Contrary to plaintiff’s contention, the Accident Analysis report was relevant to the issue of causation (Valentine v Grossman, 283 AD2d 571 [2001]).

Therefore, 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 was properly denied.
Decision Date: April 13, 2005

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated May 18, 2004, as denied the petition.

Ordered that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the petition is granted.

The respondents allegedly were injured when the vehicle in which they were passengers collided with another vehicle, and was then struck in the rear by a third vehicle. The third vehicle fled the scene, and the identity of its owner and operator has never been ascertained. At the time of the accident, the vehicle the respondents were traveling in was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate). Shortly after the accident, the respondents’ attorney notified Allstate that the respondents were making a claim for uninsured/underinsured motorist benefits under the policy it had issued to its insured. However, neither this claim letter, nor the “Notice of Intention to Make Claim” forms and applications for no-fault benefits which the respondents submitted to Allstate, indicated that an unidentified or hit-and-run vehicle was involved in the accident. The respondents subsequently demanded arbitration of their claim for uninsured motorist benefits arising from a hit-and-run accident, and Allstate commenced this proceeding to permanently stay arbitration. In its petition, Allstate alleged that the respondents failed to comply with a policy provision that required a claimant to file a statement under oath, within 90 days after the accident, that he or she has a cause of action arising out of an accident with a hit-and-run vehicle. [*2]In opposition to the petition, the respondents argued that the notice provisions of Allstate’s policy were ambiguous because another section of its uninsured motorist endorsement required a claimant to furnish sworn proof of claim “after written request’ by Allstate. The Supreme Court denied Allstate’s application for a permanent stay, and we now reverse.

The requirement that a claimant file a sworn statement that he or she has a cause of action arising out of an accident with a hit-and-run vehicle, within 90 days after the accident, is a condition precedent to coverage under an uninsured motorist endorsement (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]). Absent a valid excuse, the failure to comply with this condition precedent vitiates coverage (see Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of Empire Ins. Co. v Dorsainvil, supra; Matter of Interboro Indem. Mut. Ins. Co. v Napolitano, 232 AD2d 561 [1996]; Matter of Travelers Indem. Co. [Madera], 189 AD2d 570 [1993]). However, we have also recognized that where, as here, an uninsured motorist endorsement contains ambiguous notice of claim provisions, “a failure to file a sworn statement of the hit-and-run claim . . . does not necessarily vitiate coverage when the carrier otherwise receives adequate notice of the claim” within the requisite 90-day period (Matter of American Home Assur. Co. v Joseph, 213 AD2d 633, 634 [1995]; see also Matter of Eveready Ins. Co. v Farrell, 304 AD2d 830 [2003]; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923 [1994]). Here, neither the respondents’ claim letter, applications for no-fault benefits, nor “Notice of Intention to Make Claim” forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident. Under these circumstances, the respondents failed to provide Allstate with adequate notice of their claim. Thus, the petition for a permanent stay of arbitration should have been granted (see Matter of American Home Assur. Co. v Joseph, supra). Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.

—[*1]

In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of an unsatisfied judgment against the defendant’s insured, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated April 8, 2004, which denied their motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court dated July 16, 2004, as, upon reargument and renewal, adhered to its original determination.

Ordered that the appeal from the order dated April 8, 2004, is dismissed, as that order was superseded by the order dated July 16, 2004, made upon reargument and renewal; and it is further,

Ordered that the order dated July 16, 2004, is reversed insofar as appealed from, on the law, and upon reargument and renewal, the order dated April 8, 2004, is vacated, the complaint is reinstated, the plaintiffs’ motion for summary judgment is granted, and the cross motion is denied; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The plaintiff Nathaniel Shell allegedly was injured on January 2, 2000, in a motor vehicle accident involving Raul L. Park, the driver of the alleged offending vehicle, which was owned by Claymonth Park. At the time of the accident, Claymonth Park’s vehicle was insured by the defendant. The plaintiffs commenced an action against Raul L. Park and Claymonth Park (hereinafter the Parks) to recover damages for personal injuries sustained by Nathaniel Shell.

On September 24, 2002, the Supreme Court entered judgment against the Parks. A copy of this judgment was served on the defendant on September 27, 2002. This was the first notice of the plaintiffs’ claim given to the defendant by anyone. However, the defendant received tardy notice of the accident from the plaintiffs’ insurer by way of a subrogation intercompany arbitration demand dated April 5, 2002, seeking adjustment of no-fault benefits. The defendant, by letter dated April 10, 2002, promptly disclaimed coverage for “this claim” submitted by the plaintiffs’ insurance company because the defendant’s own insured failed to give prompt notice of it. The letter dated April 10, 2002, addressed to Claymonth Park, indicated that a copy of it was sent to the plaintiff Nathaniel Shell.

Relying on its disclaimer dated April 10, 2002, the defendant did not satisfy the plaintiffs’ judgment. The plaintiffs commenced this action on July 10, 2003, and the defendant served an answer dated October 20, 2003. The plaintiffs treated the answer as a disclaimer of their claim as injured parties (see Insurance Law § 3420 [a] [3]) on the basis that the answer pleaded that the plaintiffs were subject to all defenses against the insured party and that the insured party failed to give the defendant prompt notice of the accident or loss. Since the disclaimer was made more than 12 months after the defendant was notified of the plaintiffs’ claim by way of service of a copy of the judgment, the plaintiffs moved for summary judgment based on the tardiness of the disclaimer. The defendant, in support of its cross motion for summary judgment, argued that its disclaimer letter dated April 10, 2002, covered the injured parties’ claim embodied in the judgment. The Supreme Court held that the disclaimer dated April 10, 2002, was insufficient to cover the plaintiffs’ claim because the defendant was not aware of the claim at the time it sent the letter. Instead, it held that the defendant was first apprised of the plaintiffs’ claim when it received the summons and complaint in this action, and thus, the defense of late notice asserted in its answer was timely.

The plaintiffs moved for reargument and renewal, on the ground that the Supreme Court overlooked the date of the defendant’s receipt of the plaintiffs’ judgment as its first notice of the claim. In addition, the plaintiffs referred to a letter obtained in discovery that, they argued, evidenced the defendant’s awareness of the claim of the plaintiff Nathaniel Shell as early as March 26, 2002. The Supreme Court, in its order dated July 16, 2004, upon granting reargument and renewal, adhered to its original determination. In that order, the court indicated that the letter dated March 26, 2002, did not “assert a claim by [the] plaintiffs against [the] defendants.” We reverse.

The defendant’s reliance on its disclaimer dated April 10, 2002, was misplaced. An insurer’s justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595, 596 [2004]; Prus v Glencott Realty Corp., 10 AD3d 390, 391 [2004]). The letter dated April 10, 2002, disclaimed coverage on the ground that its insured failed to give “prompt notice of this claim,” a no-fault subrogation claim. This language made no reference to the plaintiffs’ claim in the underlying action against the Parks. Therefore, as the Supreme Court observed, albeit for a different reason, the letter dated April 10, 2002, could not serve as a disclaimer [*2]of the plaintiffs’ claim in the underlying action against the Parks. Moreover, the letter dated April 10, 2002, was based on the failure of Claymonth Park to give prompt notice and made no reference to the failure of the plaintiff Nathaniel Shell, the injured party, to give such notice (see Vacca v State Farm Ins. Co., 15 AD3d 473 [2005]). Therefore, the disclaimer dated April 10, 2002, was ineffective against the plaintiffs (see General Acc. Ins. Group v Cirucci, supra; Halali v Evanston Ins. Co., 8 AD3d 431, 433 [2004]; Matter of State Farm Mut. Auto. Ins. Co. v Cooper, 303 AD2d 414 [2003]).

Thus, the defendant’s answer in this action was, in effect, the only disclaimer of coverage of the plaintiffs’ claim. Since it was furnished over 12 months after the plaintiffs notified the defendant of their claim by way of service of a copy of their judgment against the Parks, the disclaimer, as a matter of law, was not made “as soon as is reasonably possible” (Insurance Law § 3420 [d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979]; Government Empls. Ins. Co. v Kolodny, 269 AD2d 564, 565 [2000]). The lack of timeliness of the disclaimer renders academic any consideration of the validity of the grounds asserted therein including the staleness of notice furnished by the insured or by the injured party (see Crowningshield v Nationwide Mut. Ins. Co., 255 AD2d 813, 815 [1998]; State Farm Mut. Auto. Ins. Co. v Clift, 249 AD2d 800, 801 [1998]; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507 [1993]; Kramer v Interboro Mut. Indem. Ins. Co., 176 AD2d 308 [1991]).

Accordingly, the Supreme Court should have granted summary judgment in favor of the plaintiffs rather than the defendant.

In view of the foregoing, it is unnecessary to reach the remaining contentions of the parties. Schmidt, J.P., Goldstein, Crane and Fisher, JJ., concur.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated January 6, 2004, as, upon renewal, granted the defendant’s motion for summary judgment dismissing the first cause of action and denied its cross motion for summary judgment on that cause of action.

Ordered that the appeals by the plaintiffs Hospital for Joint Diseases and Mary Immaculate Hospital are dismissed, without costs or disbursements, as those plaintiffs are not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof which, upon renewal, granted the motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from by the plaintiff New York and Presbyterian Hospital, without costs or disbursements.

Marco Rizzi, the assignor of the plaintiff New York and Presbyterian Hospital (hereinafter the Hospital) was insured as a covered person under a policy of insurance (hereinafter the policy) issued by the defendant Government Employees Insurance Company (hereinafter GEICO). Rizzi was treated at the Hospital for the period from February 22, 2002, through April 3, [*2]2002, for injuries related to an automobile accident covered under the policy (hereinafter the accident). According to GEICO, on April 13, 2002, it received a bill from the Hospital submitted for medical services rendered to Rizzi for injuries resulting from the accident. GEICO then sent verification requests to the Hospital on April 22, 2002, and on May 22, 2002.

According to the Hospital, it first sent the claim related to the accident to GEICO on May 9, 2002, and it was received by GEICO on May 13, 2002. Thereafter, it received GEICO’s first verification request dated May 22, 2002. The Hospital did not deny receiving the purported verification request sent by GEICO dated April 22, 2002.

It is undisputed that the Hospital finally sent the required verification documents on April 23, 2003. Upon receipt thereof, GEICO paid the Hospital $60,961.44, the amount which undisputably represented the balance of funds left on the no-fault portion of the policy at that time.

The Hospital does not dispute the total amount of the policy, nor the amount paid out on it. However, it contends that GEICO’s first purported verification request dated April 22, 2002, was a nullity since at the time it was sent, the Hospital had not yet sent the bill to GEICO for the medical services rendered to Rizzi.

Thereafter, GEICO moved for summary judgment dismissing the Hospital’s first cause of action on the ground that it had paid out all the money available under the no-fault portion of the policy, and the Hospital cross-moved for summary judgment on that cause of action for the sum of $32,961.15, the amount GEICO paid to other health care providers after May 13, 2002, the date the Hospital contends GEICO received its initial claim.

The parties do not dispute that GEICO, a no-fault insurer, may send an initial request for verification within 10 business days of receipt of a completed application for motor vehicle no-fault benefits. If any requested information was not supplied within 30 days of that request, then within 10 days after that (i.e., within 40 days after the initial request for verification was sent) GEICO must follow that up with a properly documented telephone call or by mail (see 11 NYCRR 65.15 [d] [1]; [e] [2]; New York & Presbyterian Hosp. v American Tr. Ins. Co., 287 AD2d 699, 699-700 [2001]). If that is not done then, upon receipt of the requested verifying information, the insurer is required to pay the requested amount, within the policy limits, before paying health care providers who submit later claims. Furthermore, GEICO does not dispute the Hospital’s contention that any request for verification sent before the submission of a claim by a health care provider is a nullity.

In this instance, GEICO made out a prima facie case that it had sent the initial request for verification, as well as the required follow up thereto, subsequent to its receipt of a claim by the Hospital on April 13, 2002. However, in opposition, the Hospital raised a triable issue of fact, through the affidavit of Peter Kattis, a billing agent for the Hospital, as to whether its first claim was actually mailed May 9, 2002, and not received until May 13, 2002, in which case GEICO only would have sent an initial request for verification after the Hospital’s initial submission of its claim. Accordingly, upon renewal, GEICO’s motion for summary judgment dismissing the first cause of action should have been denied (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Tate v Freeport Union School Dist., 7 AD3d 695 [2004]; Corcoran v Babylon Tr., 295 AD2d 392 [2002]; Roth v Barreto, 289 AD2d 557 [2001]).

The Hospital’s remaining contentions are without merit. Florio, J.P., Cozier, Krausman and Rivera, JJ., concur.

Civil Court of the City of New York, Kings County

32177/03

Eileen N. Nadelson, J.

On July 10, 2003, Plaintiffs submitted a Motion for Summary Judgment as providers of first party benefits under New York’s No-Fault Insurance Law. That motion was subsequently denied on November 18, 2003, because Plaintiffs failed to provide sufficient support for the requested judgment. Plaintiffs never moved to renew or reargue that decision.

On July 5, 2004, Plaintiffs submitted this instant Motion for Summary Judgment, requesting the same relief based on the same underlying claim. In the motion papers, Plaintiffs state that they are remaking the motion originally filed on July 10, 2003, based on new affidavits of the treating physicians.

The above-recited facts present to the court the issue as to whether a party may file a new [*2]Motion for Summary Judgment after an initial Motion for Summary Judgment for the same relief on the same claim was denied based on insufficient documentary support to grant that motion.

Generally, once a motion for summary judgment has been denied, subsequent motions seeking the same relief must be denied as res judicata. Smith v. Palmieri, 103 AD2d 739, 477 N.Y.S. 2d 206 (2d Dept. 1984). This may be true even if the original denial is based on a party’s failure to come forward with evidentiary facts, rather than on a full determination based on all relevant data. Johnson v. Unexcelled, Inc., 42 AD2d 529, 345 N.Y.S. 2d 1 (1st Dept. 1973). Consequently, the court must determine whether there is any legal basis for permitting Plaintiffs to remake a motion for summary judgment that has previously been denied for technical, rather than substantive, reasons.

Section 3212 of the CPLR establishes the rules for the proof necessary to support a motion for summary judgment. Secion 3212(b) states that

A motion for summary judgment shall be supported by affidavit, by a copy

of the pleadings and by other available proof, such as depositions and written

submissions.

Courts have held, and prudent practice demands, that if a movant, in preparation of a motion for summary judgment, cannot assemble sufficient proof to dispel all questions of material fact, the motion should simply not be submitted. Seefeldt v. Johnson, 13 AD3d 1203, 787 N.Y.S. 2d 594 (4th Dept. 2004). Further, courts may exercise their discretion in rejecting supporting papers that are untimely submitted. Moore v. Long Island College Hospital, 273 AD2d 365, 714 N.Y.S. 2d 683 (2d Dept. 2000).

However, if circumstances arise in which facts essential to justify or oppose a motion may exist but cannot be then stated, the court may order a continuance to permit affidavits to be obtained. CPLR sec. 3212(f). To grant such a continuance, it must be demonstrated by the party requesting such relief that further discovery may lead to the relevant evidence. Wyllie v. District Atty. of County of Kings, 2 AD3d 714, 770 N.Y.S. 2d 110 (2d Dept. 2003).

The courts also permit a party to move to renew or reargue a motion for summary judgment to correct the failure to include proof in evidentiary form in the original motion upon a showing of law office failure and absence of prejudice to the opposing side. Campbell v. Cloverleaf Transp., Inc., 5 AD3d 169, 773 N.Y.S. 2d 50 (1st Dept. 2004). To grant a motion to renew or reargue, the movant must proffer a sufficient excuse as to why a necessary affidavit was not included in the original papers. Brignol v. Warren Elevator Service Co., Inc., 240 AD2d 354, 657 N.Y.S. 2d 768 (2d Dept. 1997).

In the instant case, Plaintiffs never requested a continuance of their original motion, nor did they seek to renew or reargue the denial of that motion. Rather, Plaintiffs simply waited half a year and submitted a new motion that included the affidavits missing from the original papers. [*3]The affidavits now submitted are affidavits from the treating physicians who are the Plaintiffs in this action. No excuse is offered as to why the affidavits were not included with the first papers.

Courts have refused to permit a party to renew or reargue the denial of a motion for summary judgment based on more detailed affidavits than were originally submitted when such elaboration is not based on newly found information and no reasonable justification was given for not including the affidavits in the first instance. Stoklas v. Auto Solutions of Glenville, Inc., 9 AD3d 780, 780 N.Y.S. 2d 215 (3d Dept. 2004). When the inadvertence involved in not including necessary affidavits appears to be the lack of realization of the need for such affidavits rather than mere law office error, the courts refuse to permit a reargument of the denial of a summary judgment motion. Foitl v. G.A.F. Corporation, 64 NY2d 911, 488 N.Y.S. 2d 377 (1985).

It would fly in the face of judicial logic to permit a party to submit a new motion for summary judgment when that party would not be able to reargue the denial of an earlier motion seeking the same relief. Therefore, based on the foregoing, Plaintiffs’ Motion for Summary Judgment is denied as res judicata.

Dated: April 7, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court of the City of New York, Kings County

99251/03

Eileen N. Nadelson, J.

Plaintiff medical provider instituted this action for first party benefits pursuant to New York’s No-Fault Insurance Law. Defendant insurer denied Plaintiff’s claim for benefits, alleging that the treatments provided were not medically necessary. The matter was tried before a jury.

In preparing to instruct the jury, the court discovered that there is no Pattern Jury Instruction defining the term “medical necessity,” despite the fact that several decisions have been published attempting to define the term judicially, since it is not defined by the No-Fault statute itself.

In Elm Medical, P.C. aao Tamara Feit v. American Home Assurance Company, 2003 NY Slip Op. 51357U, 2003 NY Misc. Lexis 1337 (Kings County 2003), the court adopted the definition of “medical necessity” used by the New Jersey courts:

A necessary medical expense under the [No Fault] Act is one incurred for

a treatment, procedure, or service ordered by a qualified physician based on

the physician’s objectively reasonable belief that it will further the patient’s

diagnosis and treatment. The use of the treatment, procedure, or service

must be warranted by the circumstances and its medical value must be

verified by credible and reliable evidence.

This is the same definition that was originally used by an earlier court in Medical Experise, P.C.aao Irina Moukha v. Trumbull Insurance Company, 196 Misc 2d 389, 765 N.Y.S. 2d 171 (Queens County 2003).

More recently, based on pending legislation, a modification of the New Jersey definition was promulgated: [*2]

treatment or services which are appropriate, suitable, proper and conducive to

the end sought by the professional health services in consultation with the

patient. It means more than merely convenient or useful treatment or services,

but treatment or services that are reasonable in light of the patient’s injury,

subjective and objective evidence of the patient’s complaints of pain, and the

goals of evaluating and treating the patient.

Behavioral Diagnostics aao Maria Arevalo et al. v. Allstate Insurance Company, 3 Misc 3d 246, 776 N.Y.S. 2d 178 (Kings County 2004), citing Fifth Avenue Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 766 N.Y.S. 2d 748 (Queens County 2003).

Based on the published decisions of the courts, we believe that an appropriate jury instruction on the definition of “medical necessity” is:

For an expense to be considered medically necessary, the treatment, procedure, or

service ordered by a qualified physician must be based on an objectively reasonable

belief that it will assist in the patient’s diagnosis and treatment and cannot be reasonably dispensed with. Such treatment, procedure, or service must be

warranted by the circumstances as verified by a preponderance of credible and

reliable evidence, and must be reasonable in light of the subjective and objective evidence of the patient’s complaints.

Dated: April 7, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

[*1]

Argued February 9, 2005; decided April 5, 2005

Rekemeyer v State Farm Mut. Auto. Ins. Co., 7 AD3d 955, modified.

{**4 NY3d at 472} OPINION OF THE COURT

G.B. Smith, J.

This is a declaratory judgment action in which plaintiff seeks a declaration that she is entitled to payment under the supplementary uninsured/underinsured motorists (SUM) [*2]provision of her insurance contract. The insurance carrier disclaimed on the ground that written notice of the SUM claim was not given as soon as practicable and that a copy of the summons and complaint in plaintiff’s legal action was not immediately given to it. On the facts of this case, we hold that the carrier must show prejudice before it may disclaim coverage due to plaintiff’s late notice of SUM claim.

On May 8, 1998, plaintiff, Cynthia Rekemeyer, was rear-ended while driving her car. Shortly after the accident occurred, Rekemeyer notified State Farm of the occurrence and made a claim for no-fault benefits. At the time of the accident, plaintiff had been unable to work for 18 years due to an existing back problem. Throughout 1998, plaintiff received medical care from a number of doctors for accident related injuries. In December 1998 and again in February 2000, at the request of State Farm, plaintiff was evaluated by a doctor of State Farm’s choice concerning accident related injuries.

On April 27, 1999, plaintiff filed suit against the driver of the other car, Sherwood Bouyea. By letter dated July 21, 1999, plaintiff notified State Farm of the lawsuit. In a bill of particulars {**4 NY3d at 473}dated July 1999, plaintiff alleged that she had suffered “severe and permanent injuries to her left arm and cervical spine.” In September 1999, plaintiff learned that Bouyea’s maximum liability coverage was $50,000. Plaintiff’s demand was for $1 million.

In October 1999, plaintiff underwent surgery on her back for injuries she alleges she sustained as a result of the car accident. On March 12, 2000, Bouyea’s attorney offered $45,000 to settle the claim. On March 31, 2000, plaintiff notified State Farm that she would pursue SUM coverage under her own policy. On April 10, 2000, Bouyea’s attorney made a settlement offer of $50,000. On April 25, 2000, State Farm disclaimed coverage based upon plaintiff’s failure to notify it of the SUM claim as soon as practicable and because of failure to notify it immediately of the lawsuit.

In October 2000, plaintiff brought this declaratory judgment action against State Farm. State Farm answered the complaint. It then filed a motion for summary judgment dismissing the complaint for failure to comply with the insurance contract provision requiring notice of the SUM claim as soon as practicable. On June 19, 2003, Supreme Court denied defendant’s motion to dismiss, and, citing Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso (93 NY2d 487 [1999]), granted plaintiff’s motion for a declaratory judgment for SUM coverage. Supreme Court stated:

“On the facts of this case, it cannot be concluded that plaintiff did not give notice of her SUM claim as soon as practicable as a matter of law. The slowly evolving nature of plaintiff’s injuries, her pre-existing injury and daily pain, [*3]intervening surgeries and the bona fide questions as to severity and causation of the new injury, along with the tortfeasor’s defenses on the issue of liability can reasonably be said to have prevented knowledge that the tortfeasor was underinsured until at or about such time as a settlement offer near or at the limit of his policy was tendered. It was at that point that plaintiff promptly notified defendant of her SUM claim. Thus, defendant’s motion must be denied and plaintiff’s cross motion will be granted.”

On May 20, 2004, Appellate Division reversed and determined:

“[P]laintiff knew or reasonably should have known that {**4 NY3d at 474}Bouyea’s insurance was insufficient to provide full compensation for her injuries and yet she inexplicably waited six months before providing notice to defendant of her intent to make a claim for supplemental coverage. We find such notice to have been untimely and, thus, Supreme Court erred in granting her cross motion for summary judgment.” (7 AD3d 955, 957 [2004].)

On September 21, 2004, this Court granted plaintiff leave to appeal.

Initially, plaintiff argues that she submitted her notice of SUM claim to State Farm as soon as practicable and did not breach the insurance contract. We have held that in the SUM context, the phrase “as soon as practicable” means that “the insured must give notice with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured” (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d at 495). The requirement that the insured give notice as soon as practicable “contemplates elasticity and a case-by-case inquiry as to whether the timeliness of the notice was reasonable, taking all of the circumstances into account” (see id. at 494; see also Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 19 [1979]).

We agree with the Appellate Division that plaintiff did not submit her notice of SUM claim as soon as practicable. Although plaintiff had disabling injuries prior to the accident that may have interfered with her assessment of the extent of new injuries, she stated in her bill [*4]of particulars in the underlying personal injury action—drafted eight months before plaintiff notified defendant of her claim for SUM coverage—that she had suffered serious and permanent injuries as a result of the accident. The record thus belies any claim that she was unaware that her injuries were serious. Moreover, Bouyea informed plaintiff in September 1999 that he was insured for only $50,000. Accordingly, the Appellate Division appropriately concluded that plaintiff’s notice of her SUM claim in March 2000—approximately six months later—was untimely.

Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate {**4 NY3d at 475}prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the “traditional rule,” it is actually a limited exception to two established contract principles: “(1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition” (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992] [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.).

More recently in Matter of Brandon (Nationwide Mut. Ins. Co.), this Court held that a SUM carrier that received timely notice of a claim must show prejudice before disclaiming SUM benefits based on late notice of a legal action (see 97 NY2d 491, 494-495, 498 [2002]). In the SUM context, the Brandon court was unwilling to extend the no-prejudice exception in regard to late notice of a legal suit because “unlike most notices of claim—which must be submitted promptly after the accident, while an insurer’s investigation has the greatest potential to curb fraud—notices of legal action become due at a moment that cannot be fixed relative to any other key event, such as the injury, the discovery of the tortfeasor’s insurance limits or the resolution of the underlying tort claim.” (Id. at 498.)

There are important public policy issues that continue to arise both in federal and state courts which warrant a review of the no-prejudice exception, particularly when the insured has given timely notice of occurrence or claim (see Mark A. Varrichio & Assoc. v Chicago Ins. Co., 312 F3d 544, 548-550 [2002] [certified question to New York Court of Appeals of whether timely notice of occurrence required the insurer to show prejudice before disclaiming for late notice of lawsuit; question withdrawn because parties settled]). This case presents us with an opportunity [*5]to reexamine the applicability of the no-prejudice rule in the SUM context.

The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover,{**4 NY3d at 476} the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo 2001]). Additionally, State Farm should bear the burden of establishing prejudice “because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative” (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer]). Thus, we hold that where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage.

Our analysis today is in line with other jurisdictions which require that carriers show prejudice before untimely notice of a SUM claim is held to be a material breach in the contract warranting disclaimer (see Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, supra; State Auto. Mut. Ins. Co. v Youler, 183 W Va 556, 396 SE2d 737 [1990]; Ouellette v Maine Bonding & Cas. Co., 495 A2d 1232 [Me 1985]; State Farm Mut. Auto. Ins. Co. v Burgess, 474 So 2d 634 [Ala 1985]; Pennsylvania Gen. Ins. Co. v Becton, 475 A2d 1032 [RI 1984]; Rampy v State Farm Mut. Auto. Ins. Co., 278 So 2d 428, 435 [Miss 1973]; see also Alcazar v Hayes, 982 SW2d 845, 854 [Tenn 1998] [where an insured has failed to provide timely notice of a claim, there is a rebuttable presumption that the carrier has been prejudiced]).

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and remitting to the trial court for the carrier to have an opportunity to demonstrate prejudice, and, as so modified, affirmed.

Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur; Chief Judge Kaye taking no part.

Order modified, etc. [*6]