Supreme Court, New York County

10312-04

Weiss, Wexler & Wornow (Cory I. Zimmerman of counsel) for petitioners. Wenig & Wenig (Joseph Szalyga of counsel) for respondent.

James A. Yates, J.

On October 26, 2001, Wayne Wells, an employee of the URS Corporation (URS), was involved in an automobile accident on his way home from work. As a result of the accident, Wells sustained serious injuries and filed a workers’ compensation claim and a no-fault claim for payment of medical bills and lost wages. He also filed a claim for disability benefits with First UNUM Life Insurance Company (First UNUM) and a personal injury action.

Farmers New Century Insurance Company (Farmers) is the no-fault automobile insurance carrier for Mr. Wells. URS was insured by National Union Fire Insurance Company (National) for Workers’ Compensation insurance liability. American International Group Claim Services, Inc., (AIG) handles workers’ compensation claims that URS employees bring under the National policy. AIG denied Mr. Wells workers’ compensation benefits on the ground that he was not injured during the course of his employment. As a result of National’s denial of coverage and pursuant to its insurance policy with the insured, Farmers alleges it paid first-party benefits to Mr. Wells. 11 NYCRR 65.15 [q] [3] [I]. First UNUM , URS and claimant’s major medical insurer also paid monies to Mr. Wells. Since other insurers paid benefits to the claimant, AIG [*2]allegedly alerted the Workers’ Compensation Board of this fact and requested that the Board determine the amounts due as reimbursement from AIG.

On June 10, 2002, the Workers’ Compensation Board issued a decision finding that claimant’s injuries were work-related, entitling him to an award. See Pet. Aff., Ex. C, Workers’ Compensation Board Decision, dated June 14, 2002. On that date, AIG withdrew its objections to claimant’s claim. By application dated January 7, 2004, respondent commenced arbitration proceedings against petitioner at Arbitration Forums, Inc. Farmers claimed it paid no-fault benefits to Mr. Wells from the date of the accident until June 10, 2002 in the amount of $ 55, 460.45, and now was seeking reimbursement from petitioner through arbitration.

After receiving notice of the intent to arbitrate, petitioner commenced this Article 75 proceeding for a stay of arbitration, arguing it could not be obligated to participate in the arbitration. First, petitioner argued that the Workers’ Compensation Board is vested with primary jurisdiction as to the applicability of workers’ compensation or no-fault insurance coverage in work-related motor vehicle accidents. O’ Rourke v Long, 41 NY2d 219, 228 [1976]. Petitioner then contended that the matter was already pending before the Workers’ Compensation Board, that respondent was included and involved in that action and that the only proper forum for determining the amounts, if any, which AIG was responsible to repay to respondent was the Board. In the alternative, petitioner argued that if the court allowed the arbitration to proceed, then the court should add the claimant as an additional respondent in the arbitration proceeding, so that the arbitrator would be able to make an award, if any, against the proper party, the claimant himself. Respondent opposed the petition, arguing that there was no basis for a stay. To avoid inconsistent decisions on the matter, a temporary stay of the arbitration was granted by this Court pending a decision by the Board on the issue of lien priority among the disability carrier, employer, and the no-fault carrier.

On July 29, 2004, a Workers’ Compensation Board hearing was held before Judge Jonathan Frost. Petitioner alleges that respondent failed to submit a brief to the Board explaining the reasons Farmers believed it was entitled to reimbursement. Following the hearing at which Farmers was allowed to participate, a decision was issued on November 19, 2004, finding that no-fault benefits were not reimbursable, as a matter of law, under the Workers’ Compensation statute. See Letter from Joseph W. Szalyga, Respondent’s Counsel, to the Court, dated November 23, 2004; Workers’ Compensation Board Decision, dated November 19, 2004. The Board determined that the disability carrier was liable for paying benefits pending the outcome of the compensation litigation. Because the disability carrier was legally obligated to pay benefits during the period in question and the employer was not obligated to continue wage payments to claimant during the same period, the Board held that the disability carrier’s lien had priority over the employer’s lien. Therefore, the disability carrier was to be reimbursed in full for the period of time in which benefits were paid. After the disability carrier’s lien was satisfied, the employer could be reimbursed for “the difference between the proper compensation rate payable to claimant during that period and the amount reimbursed to the disability carrier.” id. [*3]

Judge Frost also held that the compensation carrier was not entitled to a lien under Workers’ Compensation Law section 29 on the amount of monies claimant received under his employer’s underinsurance coverage. He reasoned that the lien and offset provisions of section 29 could only be applied against recoveries from third-party tortfeasors who were responsible for Wells’ injuries. Furthermore, he found “irrelevant that the underinsured policy claimant received these proceeds from was the employer’s because the employer was not the person whose negligence or wrong caused the claimant’s injuries.” id. citing Shutter v Philips Display Components Co., 90 NY2d 703 [1997]. The case was to continue on the issue of proper awards consistent with the decision.

Respondent argues that the dispute is subject to mandatory arbitration pursuant to Workers Compensation Law 29 (1-a) and the loss transfer provisions of Insurance Law section 5105. Petitioner argues that if respondent made any erroneous payments to claimant, AIG’s remedy is to seek reimbursement of these monies directly from claimant or his medical providers. As well, petitioner contends that if respondent is entitled to reimbursement of any sum of money, it is not entitled to the amount claimed.

By definition, uninsured motorist coverage compensates for “noneconomic” loss and economic loss in excess of basic economic loss, and shall not duplicate any element of basic economic loss. Insurance Law § 3420 [f] [1]. Workers’ compensation benefits by definition are limited to reimbursement for basic economic loss. Workers’ Compensation Law § 10 et seq.

As part of the No-Fault Law, the Legislature enacted section 674 (now section 5105) adopting a new procedure that authorizes first-party benefits with a resulting equitable adjustment between insurers without the need for the formalities applicable to litigation of claims. Matter of City of Syracuse v Utica Mut. Ins. Co., 61 NY2d 691 [1984]. Section 5102 [g] of the Insurance Law defines an insurer as:

“[T] he insurance company or self-insurer, as the case may be, which provides the financial security required by article six or eight of the vehicle and traffic law.”

Insurance Law section 5105 and 11 NYCRR section 65. 10 of the Regulations of the Superintendent of Insurance provide for mandatory arbitration of certain priority of payment or joint coverage situations. That statute reads, in part, as:

“Settlement between insurers. (a) Any insurer liable for the payment of first party benefits to or on behalf of a covered person and any compensation provider paying benefits in lieu of first party benefits which another insurer would otherwise be obligated to pay pursuant to subsection (a) of section five thousand one hundred three of this article or section five thousand two hundred twenty one of this chapter has the right to recover the amount paid from the insurer of any other covered person to the extent that such other covered person to the extent that such other covered person would have been liable, but for the provisions of this article, to pay damages in an action at law. In any case, the right to recover exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred pounds unloaded or is a motor vehicle used principally for the transportation of persons or [*4]property for hire.

* * *

(b) The sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent. Such procedures shall also be utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits. ”

Insurance Law section 5105 is inapplicable in this matter. The mandatory arbitration provisions are concerned with a party’s status as an insurer or compensation provider. See Pacific Ins. Co. v State Farm Mut. Auto Ins. Co., 150 AD2d 455 [2d Dept 1989]; see also Shutter v Philips Display Components Co., 90 NY2d 703 [1997] . While the statutory scheme requires mandatory arbitration to resolve all disputes arising between insurers concerning their responsibility for the payment of first-party benefits or between compensation providers, the courts have held that a workers’ compensation carrier is not bound to arbitrate a claim by a no-fault insurer for money it was obligated to pay during the time that the workers’ compensation carrier was contesting the claim.

In American Mut. Ins. Co. v Merchants Ins. Group (123 Misc 2d 331 [Sup Ct Onondaga County 1984] ), the court determined that although a good case could be made for including a no-fault insurer’s action to recover from a workers’ compensation carrier within the mandatory arbitration provision of section 674 of the Insurance Law (now section 5105), the statute did not encompass this kind of controversy. “The failure of the Legislature to include a particular situation was an excellent indication that its exclusion was intended.” id. at 332 citing McKinney’s Cons Laws of NY, Book 1, Statutes, § 74. In such cases, the court was not at liberty to supply an omitted provision. id. This matter is not factually distinguishable from American Mut. Ins. Co. v Merchants Ins. Group. That being the case, Farmers does not possess an arbitrable claim against AIG and the demand that arbitration be ordered is denied.

As well, an insurer can present a claim to recover basic economic loss from the insurer of another covered person, if (a) one of the motor vehicles involved in the accident weighs more than 6, 5000 lbs. unloaded; or (b) is a motor vehicle used for the transportation of persons or property for hire. Under those circumstances, arbitration is mandatory. There was no evidence presented that the vehicles involved in the accident met this condition precedent to arbitration.

The Court, by this decision, does not mean to imply that respondent is not entitled to reimbursement. The decision is limited merely to a finding that the parties have not agreed to arbitration and Insurance Law section 5105 does not impose arbitration upon them.

Accordingly, petitioner’s application to permanently stay the arbitration between the parties is granted and respondent’s cross- motion to dismiss the application is denied.

This constitutes the Decision and Order of the Court.

[*5]Dated: March 31, 2005

New York, New York

_______________________________

JAMES A. YATES, J.S.C.

Civil Court of the City of New York, Kings County

108436/04

Ellen M. Spodek, J.

Upon the foregoing papers, petitioner T.S. Medical P.C. moves for an order, pursuant to Article 75 of the CPLR, vacating a No-Fault Master Arbitration Award.

After petitioner was denied no-fault benefits, it filed a request for arbitration. The arbitration award that was rendered on March 23, 2004 denied petitioner’s claim. Petitioner then requested a review of the arbitration award by a Master Arbitrator. The case was reviewed and the Master Arbitrator upheld the lower arbitration award. This decision was rendered on or around July 22, 2004. This petition is filed less than ninety (90) days since receipt of the Master Arbitrator Award.

The Second Department holds “[w]hen a party to a controversy is compelled by statute to submit to arbitration—and thereby loses the right of initial resort to a judicial forum—the right to review the resulting arbitration award cannot in turn be overly limited in scope, without involving a due process issue. Thus the Court of Appeals has interpreted CPLR article 75 as requiring broader review when compulsory arbitration is in issue than when the matter has a consensual origin.” (Shand v Aetna Ins. Co., 74AD2d 442, 446 (2d Dept 1980); citing Furstenberg v Aetna Casualty & Surety Co., 49 NY2d 757 [1980]; Mounty St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 [*2]NY2d 493 [1970]; Caso v Cofey, 41 NY2d 153, 155 [1976]; 1 NY Jur 2d, Administrative Law §190). In the case at bar, petitioner chose to go to arbitration. Arbitration was only mandatory for the defendant thus a narrow review is required. Further, a master arbitrator’s award may be vacated if it is arbitrary and capricious, irrational or without a plausible basis. (Steinauer v. N.Y Central Mutual Fire Insurance Company, 707, N.Y.S.2d 706).

In it’s report, the arbitrator states that “Respondent’s denial for treatment in October 2001 is late and for those subsequent treatments the denial is improperly based on a nurse’s audit.” However, he concludes that the applicant had to prove medical necessity in it’s prima facie case. This position was upheld by the Master Arbitrator. It is well established that the burden is on the insurer to prove the lack of medical necessity and not on the insured to prove medical necessity in establishing their prima facie case. (Amaze Medical Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U][App Term, 2d and 11th Jud Dists]; Damadian MRI In Elmhust, P.C. v Liberty Mutual Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U], [App Term, 9th and 10th Jud Dists]; see also A.B. Medical Services PLLC v Lumbermens Mutual Casualty Co., 4 Misc 3d 86, 87 [App Term, 2d and 11th Jud. Dists].)

The courts have consistently held that it is proper to “vacate the determinations of a master arbitrator who denied a petitioner payment for overdue no-fault benefits because it did not have rational basis.” (In the Matter of Pradip Das/N.Y. Medical Rehab P.C. v Allstate Insurance Company, 297 AD2d 321 (2nd Dept. 2002)). Clearly, in order for the decision of the Master Arbitrator to be rational it would have to comport with the established principles of law. The insurance regulations clearly enumerate the methods of review available to the Master Arbitrator including the ability to overturn an award that was “incorrect as a matter of law. “NYCRR 65.17 (a)(4). In this action, the Master Arbitrator had the power to correctly apply the law, but chose not to.

Accordingly, this Court grants the petitioner’s motion and finds that the Master Arbitrator’s award should be vacated.

The foregoing constitutes the decision and order of this court.

E N T E R,

Dated: March 31, 2005__________________

Hon. Ellen M. Spodek

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on November 20, 2003, as denied the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C.

Order, insofar as appealed from by plaintiff Daniel Kim’s Acupuncture P.C., unanimously reversed without costs, motion by plaintiff Daniel Kim’s Acupuncture P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]

Appeal by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Square Synagogue Transportation Inc. unanimously dismissed.

In this action, inter alia, to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff Daniel Kim’s Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that it 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The peer review report included by defendant in its opposition papers does not warrant denial of plaintiff’s motion for summary judgment, since said report was unsworn, and was therefore not in admissible form (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 N.Y. Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; cf. CPLR 2106). In view of the foregoing determination, we need not address the parties’ remaining contentions.

Accordingly, summary judgment is granted in favor of plaintiff Daniel Kim’s Acupuncture P.C., and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered February 17, 2004, which denied its motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits for medical supplies furnished its assignors, plaintiff established prima facie entitlement to summary judgment by proof that it submitted claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (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]). Defendant’s failure to pay or deny the Tsvetkov claim within the prescribed 30-day period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) precludes defendant from interposing defenses to that claim with exceptions herein inapplicable (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and summary judgment should have been granted as to said claim.

Defendant denied the remaining claims on the sole ground that plaintiff failed to produce [*2]the “initial narrative report[s] from the preparing physician” pursuant to a timely initial verification request (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). However, while an insurer need not pay or deny a claim until all requested verification is received (11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]), the insurance regulations also impose on the insurer, when an initial verification request is not honored within 30 days, the duty to follow up with a second request within 10 days (now 15 days) (11 NYCRR 65.15 [d] [2], now 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). Any attempt by the insurer to deny the claim prior to exhausting the verification protocols is premature and of no effect (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; King’s Med. Supply v New York Cent. Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]). Since the tolling of the 30-day claim determination period, which occurred upon defendant’s initial verification request (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), lapsed in the absence of a timely follow-up request, defendant must be deemed to have failed to pay or deny the claims within the statutory time, precluding the defense based
on the failure to produce requested verification, as well as the additional defenses interposed for the first time in opposition to the summary judgment motion (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter remanded to the court below for a calculation of statutory interest and an assessment of
attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 31, 2005

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 (J. Battaglia, J.), entered December 3, 2003, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding partial summary judgment in favor of plaintiff in the principal sum of $660 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 claim; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff provider established its entitlement to summary judgment prima facie by proof that it submitted statutory claim forms, setting forth the fact and the amount of the loss sustained ($660 and $895), 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 issued timely requests for verification in the form of independent medical examinations (IMEs) (11 NYCRR 65.15 [c] [1], now 11 NYCRR 65-3.5 [a]). Upon assignor’s failure to appear for the first scheduled IME, defendant issued a claim denial form for the $660 claim, citing as the ground for denial, the eligible injured person’s failure to attend the IME. While this denial was timely under the 30-day claim determination rule (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [*2][1]), the sole ground set forth therein, the failure to appear for a post-claim IME, under the circumstances presented, lacked merit as a matter of law. Having requested IMEs post-claim IMEs, defendant was obligated to “follow up” its initial verification request with a second IME request within 10 days of the date on which the party to be examined failed to respond (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [c]; 11 NYCRR 65.15 [e] [2], now 15 days per 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). By failing to “follow up,” defendant abandoned its request for verification and therefore may not, as a matter of law, use the failure to provide verification, here an IME, as a basis to deny the claim (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Thus, the denial form was ‘ineffective to avoid preclusion” (Amaze Med. Supply v Eagle Ins. Co., 3 Misc 3d at 44; see Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d at 664) as to all defenses to the $660 claim with exceptions here inapplicable, and summary judgment should have been granted thereon (see S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists]).

With respect to the $895 claim, which defendant concededly never paid or denied, defendant asserted plaintiff’s failure to respond to two verification request letters, dated January 18, 2000 (3 days after the claim’s receipt) and February 19, 2000 which, if timely mailed, would constitute a defense to the action on the claim as an insurer need not pay or deny a claim until all requested verification is received (see 11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]). In our view, defendant’s proof of mailing sufficed to raise a triable issue of the timeliness of mailing. Thus, summary judgment was properly denied as to the claim for $895.

Accordingly, as to the claim for $660, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and as to the remaining claim, the matter is remanded for all further proceedings thereon.
Decision Date: March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered April 27, 2004, as denied their motion for partial summary judgment without prejudice to renew upon submission of proper papers.

Order unanimously affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to an assignor, the plaintiff establishes a prima facie entitlement to summary judgment by offering proof that it submitted claims which set 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]). By failing to append the necessary claim forms to their motion papers, plaintiffs did not establish their prima facie case, and the court below appropriately denied their motion for partial summary judgment with leave to renew upon submission of proper papers.
Decision Date: March 31, 2005

District Court, Nassau County

14015/04

Sondra K. Pardes, J.

The defendant’s motion and the plaintiff’s cross motion for summary judgment pursuant to CPLR 3212 are decided as follows.

FACTS OF THE CASE

This is an action for recovery of No-Fault Insurance benefits for medical services provided to the assignor in connection with an automobile accident that occurred on September 20, 2003. It is uncontroverted that the plaintiff medical provider provided medical services to the assignor and submitted bills for same, along with an assignment of benefits form dated October 25, 2003, to the defendant. The bills and Assignment of Benefits (“AOB”)form were received by the defendant on November 17, 2003. By letter dated November 19, 2003 the defendant requested that the plaintiff submit an AOB form signed by the plaintiff. The plaintiff forwarded a second AOB, (also dated October 25, 2003), which was received by the defendant on January 8, 2003. The defendant has not [*2]paid or denied the claim.

The defendant now moves for summary judgment on the grounds that the plaintiff failed to obtain a properly executed assignment of benefits pursuant to 11 NYCRR 65-3.11(b)(I). The defendant maintains that its requests for additional verification remains outstanding and therefore its time to pay or deny the claim has not run and this action must be dismissed as premature.

The plaintiff cross moves for summary judgment on the grounds that the AOB form received by the defendant on January 8, 2003 satisfied the request for additional verification and the defendant’s time to pay or deny the claim ended thirty days after that date.

No-Fault Insurance regulations 11 NYCRR 65-3.11(b)(2) provide, in pertinent part, that in order for a health care provider to receive direct payment from an insurer, it must submit “a properly executed assignment on: (i) the prescribed verification of treatment by the attending physician or other provider of service form (N.Y.S. form NF-3), or (ii) the prescribed verification of hospital treatment form (N.Y.S. form NF-4), or the prescribed hospital facility form (N.Y.S. form NF-5), or (iii) the prescribed no-fault Assignment of Benefits form (N.Y.S. form NF-AOB) contained in Appendix 13, infra, or an equivalent form containing nonsubstantive enhancements, but no changes may be made to the assignment language itself…”.

The attorney for the defendant argues that in the instant case the defendant elected to utilize the NF-AOB form. That AOB form, which was received by the defendant on January 18, 2003, contains a line for “Signature of Provider”. The following hand printed statement appears above that line: “- on behalf of Amy Beth Goldman, M”. There is no “signature” on that line. In addition, there is no identification of the individual who allegedly signed “on behalf of” Amy Beth Goldman. Although counsel for the defendant argues “there is no requirement” that a NF-AOB form contain a signature by the provider, the form the plaintiff elected to utilize clearly requires a “Signature of Provider”. The plain language of the No-Fault Insurance regulations requires that the provider submit a “properly executed assignment” on whatever form it chooses to submit.

It is well established that the No-Fault law is in derogation of the common law and must therefore be “strictly construed” (Presbyterian Hosp. In the City of NY v. Atlanta Casualty Co., 210 Ad2d 210, 211 [2nd Dept., 1994]). Based on the above, the court finds that the plaintiff failed to submit a properly executed AOB and therefore it has failed to comply with the defendant’s request for additional verification pursuant to 11 NYCRR 65.15(g)(I). Consequently, this court finds that the defendant’s time to pay or deny the [*3]claim has not begun to run.

Accordingly, based on the above, the plaintiff’s cross motion for summary judgment is denied and the defendant’s motion for summary judgment is granted; and it is

Ordered that the plaintiff’s complaint is dismissed.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: March 29, 2005

CC:Friedman, Harfenist, Langer & Kraut

Freiberg & Peck, LLP