SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff A.B. Medical Services PLLC from an order of the Civil Court, Kings County (M. Solomon, J.), entered December 12, 2003, which denied its motion for summary judgment.

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

“A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law . . . ” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004] [citations omitted]). In the instant case, although defendant timely denied the subject claims submitted by A.B. Medical Services PLLC (A.B.), said denials were based upon a peer review which concluded that there was no medical necessity for the procedures performed, in that the reviewer lacked sufficient information upon which to make such a determination. [*2]However, the fact that the reviewer lacked sufficient information does not, in and of itself, demonstrate the existence of a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b]). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 [*3]
NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Therefore, A.B.’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Decision Date: February 02, 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, Queens County (A. Agate, J.), entered September 26, 2003, granting plaintiff’s motion for partial summary judgment to the extent of striking defendant’s first affirmative defense, and implicitly denying defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the sum of $398.68 and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon, and for all other proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover $8,205.98 in assigned first-party no-fault benefits, the court below granted plaintiff partial summary judgment, to the extent of “preclud[ing]”
defendant “from defending its denials” based on the assignor’s failure to appear for two independent medical examinations (IMEs) scheduled prior to plaintiff’s submission of the first of its statutory claim forms and, implicitly, denied defendant’s cross motion for summary judgment based on the nonappearances. However, defendant’s denials of plaintiff’s claims for $151.28, $67.40 and $180.00 in no-fault benefits were untimely (Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and as defendant interposed no defense that survived the preclusive effect of the untimely denials, summary judgment should have been granted as to those claims. We note that said untimely denials precludes the defense that the benefits claimed exceeded the maximum benefits provided by the Workers’ Compensation Law (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d [*2]583, 586 [2002]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]; Mingmen Acupuncture Servs. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40244 [U] [App Term, 9th & 10th Jud Dists]).

However, for the reasons set forth in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), the failure of plaintiff’s assignor to attend the IMEs, sought before plaintiff submitted its statutory proofs of claim, does not afford the insurer a defense to the action but rebuts the presumption of medical necessity that attaches to the claim forms (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Because plaintiff failed to support its motion with a reasonable excuse for the assignor’s failure to attend or with a showing that the IME requests were unreasonable, or in the alternative, with proof of the treatments’ medical necessity independent of the claims forms, defendant’s proof of the assignor’s nonappearance defeated plaintiff’s summary judgment motion with the exception of the claims that were untimely denied.

Accordingly, the order is modified to grant plaintiff partial summary judgment in the sum of $398.68, and the matter remanded for the calculation of statutory interest
and attorney’s fees thereon, pursuant to Insurance Law § 5106 (a), and for all further proceedings on the remainder of the claims in accordance with the determination herein.

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

Golia, J., dissents in a separate memorandum.

Golia, J. dissents and votes to deny plaintiff’s motion for partial summary judgment and to grant defendant’s cross motion for summary judgment set forth in the following memorandum:

While I agree with the majority’s grant of summary judgment with respect to the claims untimely denied, defendant’s cross motion for summary judgment should have been granted and the complaint dismissed as to the remaining claims for the reasons set forth in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (__ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: February 02, 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, Queens County (J. Golia, J.), entered June 10, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ motion for summary judgment was supported by the affidavit of Janet Safir, “the practice and billing manager of each plaintiff company,” who averred that she submitted to defendant
the “claim forms and medical reports” which were annexed to the motion papers. There was, however, no allegation in the affidavit as to when the fifteen annexed claim forms were submitted. A plaintiff establishes a prima facie entitlement to summary judgment by offering evidentiary proof that it submitted statutory claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which includes verification of all relevant information requested (see 11 NYCRR 65.15 [g] [1], now 11 NYCRR [*2]65-3.8 [a] [1]). In the instant case, in order to establish that payment on the claims being sued upon was overdue, plaintiffs had to demonstrate that the requisite 30 calendar days had elapsed, which they sought to do by relying upon defendant’s letters, dated February 13, 2002, acknowledging receipt of claims, but not specifying the particular claims received. In the absence of any evidence as to when plaintiffs submitted their claim forms to defendant, and in the absence of any specification in defendant’s letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon [*3]
were overdue. Accordingly, having failed to make a prima facie showing of entitlement to judgment as a matter of law, plaintiffs’ motion for summary judgment was properly denied by the court below.
Decision Date: February 02, 2005

—[*1]

Order of the Appellate Term of the State of New York, First Department, entered on or about June 18, 2003, which, in an action by a health provider against a no-fault insurer to recover on an assigned no-fault claim, reversed an order, Civil Court, Bronx County (Wilma Guzman, J.), entered October 24, 2001, denying plaintiff’s motion for summary judgment, and, inter alia, granted the motion, unanimously affirmed, without costs.

Plaintiff submitted a claim to defendant for orthopedic services it provided to its assignor from November 4, 1998 to February 8, 1999. More than 30 days later, and after plaintiff had commenced the instant action alleging that defendant had neither paid nor denied the claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), defendant rejected a portion of the claim, explaining that it had previously denied all further orthopedic benefits effective January 26, 1999, and that it was accordingly denying the claim insofar as it sought benefits for services provided after that date. It appears that on January 19, 1999, defendant had sent plaintiff’s assignor a denial of claim form advising that all further orthopedic benefits would be denied effective January 26, 1999, based on an independent medical examination showing no further need for treatment. Appellate Term rejected defendant’s argument that the January 19, 1999 denial of claim form it had sent to plaintiff’s assignor is imputable to plaintiff (citing Atlantis Med. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40043U [Dist Ct, Nassau County 2002], and held that defendant’s failure to respond to plaintiff’s claim within the statutory 30-day time limit precluded defendant from defending against the claim on the ground that any treatment after January 26, 1999 was unnecessary (citing Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).

We hold that the No-Fault Law itself (Insurance Law art 51), and the regulations promulgated thereunder for settlement of claims (11 NYCRR 65.15), require that “When a provider of medical services [first] submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier [blanket] denial issued directly to the insured” (Atlantis Med., 2002 NY Slip Op 40043U at *9; see also Aurora Chiropractic, P.C. v Farm & Cas. Ins. [*2]Co. of Conn., 4 Misc 3d 1026 [A], 2004 NY Slip Op 51066[U], *2-3 [2004]; compare Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2d Dept 2004]). Concur—Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ. [See 196 Misc 2d 322.]

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 (L. Baily-Schiffman, J.), entered on November 21, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary
judgment by the submission of evidentiary proof that it mailed, and defendant received, the statutory claim forms, and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; [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]; 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]). [*2]Moreover, defendant’s requests for examinations under oath did not toll the 30-day claim determination period since the applicable insurance regulations did not contain provisions requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

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 claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s claims specialist was sufficient 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 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.), plaintiff’s motion for summary judgment should have been denied. Inasmuch as defendant has failed to establish entitlement to judgment as a matter of law, its cross motion for summary judgment was properly denied.

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

Golia, J., taking no part.
Decision Date: January 27, 2005

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 (S. Hinds-Radix, J.), entered on January 7, 2004, as denied the motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Square Synagogue Transportation Inc. and S & M Supply Inc. for summary judgment, and which denied the motion by plaintiffs Daniel Kim’s Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment with leave to renew.

Order insofar as appealed from unanimously modified by striking the provision granting plaintiffs Daniel Kim’s Acupuncture P.C. and Somun Acupuncture P.C. leave to renew their motion for summary judgment; as so modified, affirmed without costs.

A plaintiff health care provider establishes a prima facie entitlement to no-fault benefits by proof that it submitted the statutory claim form, 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]). An [*2]insurer’s failure to timely pay or deny the claim within the 30-day statutory period precludes it from asserting most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, contrary to defendant’s contention, and the apparent determination of the court below, a timely denial does not relieve an insurer opposing a motion for summary judgment from the necessity of submitting proof in admissible form to rebut a plaintiffs’ prima facie case (see e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

The court denied plaintiffs’ motion for summary judgment on the ground that issues of fact exist with regard to the validity of the assignments. To the extent that the court’s decision may have been based on the lack of proof authenticating the signature of plaintiffs’ assignor on the assignment forms, it is erroneous. The lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. PLLC. v Nationwide Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24506[U] [App Term, 2d & 11th Jud Dists]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. 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]).

We note that 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 [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 prior to the effective date of the revised regulations.

Despite its untimely denial of certain of plaintiffs’ claims, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,
201 [1997]). The affidavit submitted by defendant’s litigation coordinator, and the accompanying examinations under oath, were sufficient 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., 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 id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied and renewal thereof would be unwarranted.
Decision Date: January 27, 2005

Civil Court, Kings County

070407/04

Ellen M. Spodek, J.

defendant State Farm Insurance Company moves for an order severing the action brought by plaintiff into separate actions on behalf of the individual assignors.

In this action, plaintiff seeks to recover first party No-Fault benefits with interest and statutory attorneys fees from defendant for alleged medical services provided to its assignors.

Defendant’s motion to sever is hereby denied. The Appellate Division has held that when “claims arise out of a uniform contract of insurance and involves interpretation of the same no-fault provisions of the Insurance Law” severance need not be granted. The Court found that even if the claims involved separate accidents and individuals they do not lose their character as a series of transactions because they occur at different places and times and if they involve a common question of law, as the case at bar does, joinder is proper. ( see Hempstead General Hosp. v Liberty Mut. Ins., 134 AD2d 569 [2d Dept. 1987]). Defendant failed to submit any [*2]documents to demonstrate that the causes of action do not share common questions of law.

Moreover, the instant case involves one plaintiff and one defendant and CPLR 601 permits, and even encourages, joinder with as many claims as one plaintiff might have against one defendant, regardless of whether such claims are related.

Here, this Court finds that joinder of only four assignees does not impose an undue burden on defendant nor would it create confusion for the fact-finder. (see Hempstead, supra )

Lastly, the granting or denial of severance is left to the discretion of the Court. (Sporn v Hudson Transit Lines, 265 App.Div. 360; St. James Realty Corp. Level Realty Corp., 155 N.YS.2d 44; Biltmore Knitwear Corporation v Chalfin, 25 NYS2d 947). Accordingly, defendant’s motion is denied.The foregoing constitutes the decision and order of this court.

E N T E R,

Dated: January 20, 2005 __________________

Hon. Ellen M. Spodek

Judge, Civil Court