[*1]

Supreme Court, Appellate Term, Second Department, January 20, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Stern & Montana, LLP, New York City (Richard Montana of counsel), for respondent.

{**7 Misc 3d at 15} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care providers established a prima facie entitlement to summary judgment by proof of submission of the 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 [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 2003]). Furthermore, defendant’s delay letters, acknowledging receipt of the bills submitted by plaintiff Daniel Kim’s Acupuncture P.C. totaling $1,860.56, adequately established that said 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 2004]).{**7 Misc 3d at 16} There was also proper proof of mailing of the claim for $935 submitted by plaintiff Somun Acupuncture P.C. (see Amaze Med. Supply v Allstate Ins. Co., 3 [*2]Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists 2004]).

While an 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]), the apparently timely denial of plaintiff A.B. Medical’s claim for $1,972.08 does not relieve defendant from the necessity of submitting proof in admissible form in opposition to plaintiff’s motion for summary judgment (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 plaintiffs did not submit admissible proof authenticating the signature of plaintiffs’ assignor on the assignment forms. However, 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., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id.; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. 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 2001]).

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 most 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 {**7 Misc 3d at 17}(see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.

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

Civil Court of the City of New York, Kings County

070376/04

Eileen N. Nadelson, J.

Plaintiff, a medical provider, instituted this action to recover first party no-fault benefits from Defendant insurer. Plaintiff moved for summary judgment, alleging that Defendant neither paid nor denied the claim within the statutorily mandated thirty-day period after receipt of the claims. Ins. Law sec. 5106; Regulations sec. 65-3.8.

Defendant, in opposition, claimed that the denials were timely on their face; however, Plaintiff argued that Defendant failed to provide legally sufficient proof of mailing the subject denials within the thirty-day period.

Defendant’s proof of mailing consists of an affidavit from one of its employees who states that it is part of her regular duties and responsibilities to handle claims filed for no-fault benefits. The affidavit goes on to state that she reviewed the records of the instant claim and based on that review, has determined that the denial was mailed on the date appearing on the denial form. She finally states that, “as per the regular course of business of this office, the bill was timely denied .” [*2]

The question before the court, one that has caused much confusion and litigation, is the information that must appear on an affidavit of mailing to meet the requirements of New York’s no-fault law to evidence a proper proof of mailing.

Generally, proof of proper mailing gives rise to a presumption that the item was received by the addressee. This presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Insurance Co., 286 A.D> 2d 679, 729 NYS2d 776 (2d Dept. 2001).

In A & S Medical, P.C. v. Allstate Insurance Co., 2002 NY Slip Op. 50121(U) (1st Dept. 2002), the Plaintiff established proof of mailing the claim by an affidavit of one of its employees who actually placed the application in an envelop and then mailed the envelop at the post office herself by return receipt certified mail. This Plaintiff further presented the postal receipts, which the court concluded constituted proof of mailing the claim. In this case, the court further adduced that the defendant’s affidavit of an employee who reviewed the file and concluded that the claim was not received was inadequate to rebut the presumption of the plaintiff’s mailing of the claim.

Proof of proper mailing requires evidence of actual mailing or a standard office practice or procedure designed to ensure that the items are properly addressed and received. Affidavits that make no reference to the specifics of the office mailing practice or procedure, which merely aver that the bills were mailed within the statutory time period, are insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Insurance Co., 4 Misc 3d 133(A) (NY Sup. App. Term 2004).

Consequently, in order to meet its burden of proving that denials were mailed within the thirty-day period, an insurer must attach an affidavit of an employee who personally mailed the denial or, conversely, the affidavit of an employee with personal knowledge of the office’s mailing practices and procedures, who describes those practices or procedures in detail, indicating how he or she acquired the knowledge of such practices or procedures, and whose personal review of the file indicates that those practices or procedures were followed with respect to the claim under review.

In the instant case, Defendant has failed to meet its burden of proving that the denials were mailed within the thirty-day period because the affidavit of its employee with respect to the mailing is legally deficient. The employee states that she is familiar with the office practices and procedures, but neglects to specify the details of those procedures. The affiant fails to state how she became familiar with these procedures, and her “personal knowledge’ consists merely of a review of the files, without stating at what point in the claim process she reviewed those files or the basis for her belief that regular office procedures were followed. Without sufficient substantiation that the denials were in fact mailed on the date claimed, the court must find for Plaintiff. [*3]

Summary judgment is awarded to Plaintiff. The clerk of the court is ordered to enter judgment in favor of Plaintiff in the amount of $1,181.63, plus statutory interest, costs, and attorney fees.

Dated: January 17, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Mimose Henry appeals (1) from an order of the Supreme Court, Rockland County (Bergerman, J.), dated April 22, 2003, which granted the petition and permanently stayed the arbitration, and (2), as limited by her brief, from so much of an order of the same court dated October 7, 2003, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated April 22, 2003, is dismissed, as that order was superseded by the order dated October 7, 2003, made upon reargument; and it is further,

Ordered that the order dated October 7, 2003, is affirmed insofar as appealed from; and it is further,

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

A claimant seeking uninsured motorist benefits is required to “give notice to his or her insurer within the time limit provided in the insurance policy or within a reasonable time under all the circumstances” as a condition precedent to the insurer’s liability (Matter of Allstate Ins. Co. v Kashkin, 130 AD2d 744, 745 [1987]; see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]; Matter of Eagle Ins. Co. v Garcia, 280 AD2d 476, 477 [2001]; Matter of Nationwide Ins. Co. v Bietsch, 224 AD2d 623 [1996]). Absent a valid excuse, the failure to satisfy the notice requirement [*2]of an insurance policy vitiates coverage (see Matter of Eagle Ins. Co. v Garcia, supra; Matter of Nationwide Ins. Co. v Bietsch, supra; Matter of Allstate Ins. Co. v Kashkin, supra). Contrary to the claimant’s contention, the correspondence between her attorney and the petitioner insurance company, and her submission of an application for no-fault benefits, did not provide the insurance company with the requisite notice of her claim for uninsured motorist benefits (see Matter of Country-Wide Ins. Co. [Eun Kyu Park], 277 AD2d 175 [2000]; Matter of Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490 [2000]; Matter of Nationwide Ins. Co. v Bietsch, supra at 624). Moreover, the claimant did not offer a valid excuse for her failure to give the insurance company timely notice. Accordingly, the Supreme Court properly granted the petition to stay arbitration. H. Miller, J.P., Krausman, Goldstein and Skelos, JJ., concur.

—[*1]

Mugglin, J. Appeal from an order of the Supreme Court (Demarest, J.), entered January 22, 2004 in St. Lawrence County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint.

On August 12, 2000, plaintiff suffered an injury to his right knee when he was struck by an automobile driven by defendant’s insured. Nine days later, on his application for no-fault benefits, plaintiff correctly reported that he was not employed, had lost no time from work and was not receiving unemployment insurance benefits. Plaintiff did report, however, that he had lost time looking for work. Plaintiff’s subsequent claim for lost wages was denied by defendant on December 15, 2000 and, in January 2001, plaintiff sued for the lost-wage claim.

In March 2001, plaintiff took an examination for entry into the State Police. He was notified in June 2001 that he had passed. Because plaintiff’s doctor was fearful that plaintiff could not pass the State Police physical exam, plaintiff sought deferment. When that was granted, plaintiff had his knee surgically repaired and, after a period of rehabilitation, passed the physical exam in April 2003 and entered the State Police Academy.

Asserting that his injury delayed his employment in the State Police and his expected earnings as a trooper exceeded the actual salary he earned during the period, plaintiff sought [*2]summary judgment for approximately $24,000 on his lost-wage claim. Defendant cross-moved for summary judgment dismissing the claim on the basis that it was too speculative. Supreme Court granted the cross motion and plaintiff appeals.

Plaintiff argues that Insurance Law § 5102 (a) (2) as supplemented by 11 NYCRR 65-3.16 (b) (3) mandates reversal. We disagree and affirm. Insurance Law § 5102 (a) (2) provides that an individual who makes a claim under the no-fault provision be compensated for “[l]oss of earnings from work which the person would have performed had he not been injured” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458 [1980]). Moreover, 11 NYCRR 65-3.16 (b) (3), in interpreting the statute, states that the “[l]oss of earnings from work shall not necessarily be limited to the applicant’s level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected.” However, it is clear that the intent of the Legislature is “to compensate the accident victim for the earnings he or she would have, in fact, realized” at the time of the accident (Kurcsics v Merchants Mut. Ins. Co., supra at 457).

It is our view that the language of both the statute and the regulation contemplates a degree of certainty in the calculation of lost wages and they apply to reimburse a claimant for wages actually lost from employment engaged in at the time of the accident and those lost wages from that employment can be increased if the claimant can demonstrate a reasonable projection that his or her future earnings from said employment will increase (see Herman v Government Empls. Ins. Co., 115 Misc 2d 146, 149 [1982]). Here, that degree of certainty is entirely lacking. Plaintiff’s entry into the State Police Academy and its deferral as a result of the knee injury could not have been reasonably contemplated by either party at the time of the accident, rendering his claim entirely speculative.

Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs. [See 2 Misc 3d 945.]

—[*1]

Mercure, J.P. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered December 5, 2003 in Schenectady County, which granted petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

After allegedly sustaining injuries in a May 1998 automobile accident, respondent Geraldine Celebucki filed a claim for no-fault insurance benefits with petitioner in July 1998. Celebucki thereafter notified petitioner of her intent to file an additional claim for supplementary underinsured motorist (hereinafter SUM) coverage pursuant to the terms of her existing automobile insurance policy with petitioner. In February 2002, petitioner disclaimed coverage of the SUM claim on the ground that Celebucki had failed to notify it of her intent to seek such benefits until November 2001, approximately 3½ years after the date of the accident. Contending that petitioner had actually received such notice in August 1998, respondents filed a demand for arbitration. Supreme Court granted petitioner’s subsequent CPLR 7503 petition to permanently stay arbitration, prompting this appeal.

We affirm. In our view, Supreme Court properly held that Celebucki failed to provide petitioner with notice of her SUM claim “[a]s soon as practicable,” a requirement of her SUM [*2]policy (see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487 [1999]). Although respondents contend that such notice was provided by letter from respondents’ counsel in August 1998, petitioner presented the affidavits of a claims representative who stated that no such letter was located in Celebucki’s file. Indeed, there is no evidence in the record, apart from the unsubstantiated assertion of respondents’ counsel that he “did cause to execute and forward” said letter, to validate respondents’ claim. Notably, respondents failed to offer any proof of regular mailing procedures and office practices “geared to ensure the proper addressing or mailing of this letter,” thus entitling them to a rebuttable presumption of receipt by petitioner (Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288, 288 [2003]; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]). Accordingly, we agree with Supreme Court that timely written notice of the SUM claim was never provided and arbitration was properly stayed.

Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.

—[*1]In an action to recover no-fault benefits, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated February 10, 2004, as granted the defendant’s motion to vacate a judgment of the same court entered July 11, 2003, upon its failure to appear or answer the complaint.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the motion is denied, and the judgment is reinstated.

It is well settled that a defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The Supreme Court improvidently exercised its discretion in granting the defendant’s motion to vacate the default judgment since the defendant failed to demonstrate a reasonable excuse for its default. Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.

Civil Court of the City of New York, Kings County

55621/03

Delores J. Thomas, J.

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff moves for an order granting it summary judgment.

Plaintiff commenced this action to recover for medical services it provided to five of its assignors pursuant to the no-fault endorsement contained in an automobile policy issued by defendant.

Plaintiff, as to each of its assignors, submits a copy of an assignment of benefits signed by each assignor and a copy of a verification of treatment form for each assignor. With respect to three of the assignors,^[FN1] plaintiff submits a copy of the denial of claim forms issued by [*2]defendant, which on their face indicate receipt by the defendant, and indicate a failure to deny the claim within thirty (30) days of receipt. With respect to the other two assignors,^[FN2] plaintiff submits an affidavit from Fenelly Olivares, in which he claims that he personally mailed the no-fault claims on January 10, 2003, as indicated in the annexed mailing receipt. In addition, plaintiff submits an affidavit from Shiva Hakimian, in which she claims that she is responsible for handling the claims of said two assignors, and that defendant failed to either pay or deny the claims of the two assignors within thirty (30) days of receipt.

A plaintiff establishes a prima facie case for recovery of no-fault benefits by submitting a statutory verification of treatment form showing the amount of the loss (A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 2004 WL 1301910 [AT 2nd & 11th Jud Dists.]; Choicenet Chiropractic, P.C. v. Allstate Insurance Co., 2003 WL 1904296 [AT 2nd & 11th Jud. Dists.]).

In this case, by submitting copies of the assignments, proofs of claim, copies of defendant’s denial of claim forms as proof of mailing of the claims for three of its assignors, and submitting proof of mailing as to the claims for the other two assignors, plaintiff has presented a prima facie case for summary judgment. Defendant’s denial of claim forms which indicate the date the claims were received is sufficient proof of mailing (A.B. Medical Services v. New York Central Mutual Fire Insurance Co., 3 Misc 3d 136 [A], NYLJ, June 2, 2004, p. 27, col. 4, 2004 WL 1302031 [AT 2nd & 11th Jud Dists.]).

In this case, plaintiff seeks reimbursement for services provided to its assignors from October 22, 2002 through January 6, 2003. Plaintiff sent completed verification of treatment forms for said services to defendant in December 2002 and January 2003. With respect to three assignors, the denial of claim forms sent by defendant, after it received the verification of treatment forms, were sent more than thirty (30) days after receipt of the claims. With respect to two of the assignors, there is no indication that any denial of claim forms were sent after receipt of the verification of treatment forms.

In defense of this action, defendant does not rely on the denial of claim forms sent after receipt of the verification of treatment forms, but rather relies on denial of claim forms sent prior to receipt of the subject verification of treatment forms. Prior to receiving the subject verification of treatment forms, defendant sent denial of claim forms with respect to each assignor, indicating that it was the defendant’s position, based on an independent medical examination, that no further medical treatment was necessary for the injuries suffered by each of the assignors. In addition, each denial of claim form provided a cutoff date after which defendant would not pay for medical services. Annexed to each denial of claim form was a report from a doctor which supported the claim that further medical treatment was unnecessary. These types of denials are called blanket disclaimers. It is defendant’s position that once it sent a blanket disclaimer any treatment provided after the cutoff date contained in the denial form would be covered by the blanket disclaimer; so that even if the denial forms sent after receipt of the verification forms were sent more than thirty (30) days after receipt of the claim, they would be timely, based on the earlier blanket disclaimer.

In A & S Medical, P.C. v. Allstate Insurance Co., 196 Misc 2d 322 (AT 1st Dept. 2003), lv to appeal granted NY App. Div. 2004 Lexis 9836 (1st Dept. July 5, 2004), the court, in [*3]passing on blanket disclaimers, stated as follows:

“Although defendant argues otherwise, its belated denial of plaintiff’s no-fault claim is not properly ‘deemed’ timely on the basis of its earlier blanket disclaimer of responsibility to reimburse plaintiff’s assignor for further orthopedic treatment, a disclaimer which predated plaintiff’s rendition of the services billed for and the filing of plaintiff’s claim form. ‘When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate[s] the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.’

The contrary construction urged by defendant effectively authorizing the sub rosa denial of properly filed no-fault claims is inconsistent with the plain language of Insurance Law § 5106(a) and, if adopted, would serve to vitiate the so-called 30-day rule embodied in 11 NYCRR 65.15(g)(3) and to undermine a core objective of the no-fault scheme ‘to provide a tightly timed process of claim, disputation and payment.” (at p. 323-324, citations omitted).

The distinction between A & S Medical and this case is that in A & S Medical the blanket disclaimer was served on the assignor, while in this case, defendant claims that the blanket disclaimers were served on plaintiff, the medical provider. Phillip Asciolla, an employee of defendant, claims that he handles claims for no-fault benefits filed with defendant, and that he has reviewed defendant’s records which indicate that the annexed copies of the blanket disclaimer were mailed to plaintiff with respect to each assignor.

Plaintiff, citing several cases, claims that the affidavit submitted by defendant’s employee is not sufficient to prove that the blanket disclaimers were mailed. In the cases cited by plaintiff, the plaintiffs in those cases submitted evidence of the defendant’s failure to deny the claim within thirty (30) days of receipt, so that the defendant’s employee’s claim that he checked the defendant’s records and that the denials had been timely mailed was insufficient. In this case, while plaintiff has shown that defendant’s denials, generated by its verification of treatment forms, were not timely mailed, plaintiff fails to submit an affidavit from a person with knowledge, that plaintiff never received the blanket disclaimers prior to plaintiff’s treating its assignors. Under these circumstances, defendant’s proof of mailing of the blanket disclaimer forms, in the absence of a sworn denial of receipt by plaintiff, is sufficient.

As noted above, the only distinction between this case and A & S Medical is that in A & S Medical the blanket disclaimer was served on the assignor while in this case the blanket disclaimers were served on plaintiff medical supplier. This distinction need not lead to a different result, since the Appellate Term in A & S Medical took a strong position that the no-fault statutory scheme requires the insurer to deny each claim it receives in a timely fashion, and cannot rely on a blanket disclaimer served prior to receipt of the verification of treatment form. As the Appellate Term noted, permitting such a blanket disclaimer would vitiate the thirty-day rule within which a claim must be denied. [*4]

In addition, even if a previously served blanket disclaimer could serve as a timely denial for subsequent medical treatment, the blanket disclaimers herein cannot be used by defendant as a defense. The blanket disclaimers herein are incomplete. They do not list the name of the medical provider in item 23, and unlike the denials served after receipt of the verification of treatment forms, which list the plaintiff medical provider as the applicant for benefits, the blanket disclaimers list the assignors as the applicants for benefits. An incomplete blanket disclaimer, which makes no mention of the medical provider, cannot be considered a timely denial of a claim for treatment which was subsequently provided, even if the blanket disclaimers were served on the medical provider. At the very least, if defendant wishes to rely on a blanket disclaimer, it must be properly completed. Thus, defendant’s belated denials of plaintiff’s no-fault claims cannot be deemed timely denied based on the previously served, but improperly filled out, blanket disclaimers.

Defendant cites Hospital for Joint Diseases v. Allstate Insurance Co., 5 AD3d 441 (2nd Dept. 2004), as standing for the proposition that a blanket disclaimer can act as a timely denial of subsequent treatment. In that case, the plaintiff claimed that it was entitled to summary judgment on two no-fault claims it sent on March 6, 2002, since the defendant had failed to either pay or deny the claims within thirty (30) days of receipt. The defendant submitted evidence that it had previously notified the plaintiff’s assignor that it had terminated her no-fault benefits based on an independent medical examination. In addition, defendant showed that it had previously issued timely denials for identical claims previously submitted by the plaintiff, and that the plaintiff had repeatedly resubmitted the identical claims, until, one time, the defendant failed to issue a timely denial. The court found that the defendant’s denial was timely, since it had previously timely denied the identical claim. This case is quite different from Hospital for Joint Diseases, since defendant herein never issued a timely denial.

A no-fault claim is overdue if it is not paid or denied within thirty (30) days of receipt. Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(1)(i). Since the blanket disclaimers are not valid, and since defendant either failed to pay or deny the claims with thirty (30) days of receipt, or never issued a denial, plaintiff’s no-fault claim is overdue.

Where an insurance company fails to deny a no-fault claim within thirty (30) days of receipt, it is precluded from raising the defense of lack of medical necessity (Amaze Medical Supply, Inc. v. Allstate Insurance Co., 2 Misc 3d 134[A], 2004 WL 758248 [AT 2nd & 11th Jud. Dists.]).

Defendant further argues that the fees sought by plaintiff exceed the Workers’ Compensation fee schedule. Since defendant failed to deny the claims within thirty (30) days of receipt, it is precluded from raising this defense (Mingmen Acupuncture Services, P.C. v. Liberty Mutual Insurance Co., 2002 WL 1362202 [AT 9th & 10th Jud Dists.]; Park Health Center v. Prudential Property & Casualty Insurance Co., 2001 WL 1803364 (AT 2nd 11th Jud Dists.]).

Accordingly, plaintiff’s motion for summary judgment is granted.

Interest on overdue claims accrues at 2% interest per month. Insurance Law

§5106(a); 11 NYCRR § 65.15(h)(1).

In accordance with 11 NYCRR § 65.17(b)(6)(v), once a court action is commenced, a party may recover attorneys’ fees in the sum of 20% of the amount of no-fault benefits awarded, including the interest awarded thereon, to a maximum of $850.00 per claim (Smithtown General Hospital v. State Farm Mutual Auto Insurance Co., 207 AD2d 338 [2nd Dept. 1994]).

The clerk is directed to enter judgment against defendant on the first cause of action [*5]in the sum of $1360.00, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against defendant on the second cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the third cause of action in the sum of $727.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the fourth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the fifth cause of action in the sum of $812.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the sixth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the seventh cause of action in the sum of $850.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against defendant on the eight cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the ninth cause of action in the sum of $85.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against the defendant on the tenth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York ________________________________

January 4, 2005 DELORES J. THOMAS

Judge, Civil Court

Footnotes

Footnote 1: Zoya Abayeva, Geraldine Aybar and Altagarcia Abayea.

Footnote 2: Alekandra Borukhova and Jeanne Rivkin.

[*1]

District Court of Suffolk County, Third District, December 23, 2004

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiffs. Carman, Callahan & Ingham, Farmingdale (James M. Carmen and Jason Tenenbaum of counsel), for defendants.

{**6 Misc 3d at 649} OPINION OF THE COURT

Toni A. Bean, J.

{**6 Misc 3d at 650}A hearing was held on November 19, 2004 to address certain ethical concerns raised by irregularities in the papers submitted by plaintiffs’ counsel in the above-captioned actions, as set forth in this court’s interim memorandum decision and order dated October 28, 2004. Edward Shapiro and his associate Jason Moroff appeared at the hearing as directed, as well as counsel for the defendants.

The plaintiffs, represented by Edward Shapiro and his law firm, have moved for summary judgment in each of these seven actions for assigned first-party no-fault benefits. Each of the plaintiffs’ motions for summary judgment contains an affirmation by Edward Shapiro in which Mr. Shapiro affirms that the plaintiff’s “bills” were mailed on a particular date by “Edward Shapiro, Attorney at Law.” This affirmation has been offered to establish the timely mailing of each plaintiff’s no-fault claim as part of that plaintiff’s prima facie case.

In response to Mr. Shapiro’s affirmation, defendants Progressive Northeastern Insurance Company and General Assurance Co. have cross-moved for summary judgment and to disqualify Edward Shapiro as attorney for the plaintiffs under the witness-advocate rule, set forth at Disciplinary Rule 5-102 of the Code of Professional Responsibility (22 NYCRR 1200.21), on the ground that Mr. Shapiro’s testimony is necessary to establish a material element of each plaintiff’s cause of action.

The matter was set down for a hearing after it was noted that there were obvious differences in the signatures of Mr. Shapiro and his associate, Mr. Moroff, in papers filed with the court, and that affirmations submitted by Mr. Shapiro and Mr. Moroff contained patently contradictory and misleading language. Specifically, Mr. Shapiro’s affirmations in support of summary judgment indicated that he personally mailed each plaintiff’s no-fault claim, while Mr. Moroff’s affirmations opposing disqualification stated that a nonlawyer employee of the law firm submitted the claims and that “at no time does an attorney submit the bills to the insurance carrier.” These irregularities are of particular concern given the fact that Mr. Shapiro’s law firm has commenced hundreds of actions in the Third District Court on behalf of medical providers for assigned first-party no-fault benefits, and has brought similar motions for summary judgment in many of those actions. The stated purpose of the hearing was to determine whether counsel’s actions constituted sanctionable conduct under 22 NYCRR 130-1.1 (a).{**6 Misc 3d at 651}

At the hearing, both Mr. Shapiro and Mr. Moroff stated that the plaintiffs’ bills were not actually mailed by Mr. Shapiro, but by a representative of the firm. It was their contention that, at the time the bills were mailed to the carriers, the name of the firm was “Edward Shapiro, Attorney at Law.” In January of 2004, the firm’s name [*2]was changed to “Edward Shapiro, P.C.” Both maintained that the office inadvertently failed to change the template on the attorney’s “Affirmation” of mailing to read “Bills were sent . . . by Edward Shapiro, P.C.” Counsel for the plaintiffs contend that it was not their intent to deceive the court and expressed their apologies if that impression was given.

Although it is Mr. Shapiro’s assertion that it was not his intent to deceive the court as to who actually mailed the claims to the carriers, after reviewing the testimony of both Mr. Moroff and Mr. Shapiro, this court is constrained to conclude otherwise. It is this court’s opinion that Mr. Shapiro engaged in a pattern of behavior which can only be characterized as a deliberate attempt to mislead the court. Each affirmation in support of the motions for summary judgment sets forth the elements for establishing a prima facie case for a no-fault claim. The inclusion of the affirmation of mailing in each of these cases conclusively establishes the awareness by counsel that such documentation was an important element in determining whether summary judgment was appropriate. Moreover, it is inconceivable that Mr. Shapiro, whose practice involves substantial work in the no-fault field, was unaware that an affirmation or affidavit of mailing must be submitted by the person who actually did the mailing. (See, e.g., Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 9th & 10th Jud Dists 2004]; Oceanside Med. Healthcare, P.C. v Progressive Ins., NYLJ, May 23, 2002, at 22, col 4; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290-291 [2000].)

The assertion that it was not their intent to deceive this court is further unbelievable upon this court’s review of Mr. Moroff’s affirmation in MZ Dental, Inc. v Progressive Northeastern Ins. Co. The affirmation of mailing by Mr. Shapiro states that the bills were mailed by “Edward Shapiro, Attorney at Law.” Mr. Moroff in his affirmation states: “In this instance Edward Shapiro, P.C. did not submit the bill in question” (emphasis added). However, in paragraphs 12 and 13, it states that an employee of their office mailed the bill. In raising these arguments in opposition to disqualifying Edward Shapiro, Esq. as attorney for plaintiff, {**6 Misc 3d at 652}it would stand to reason that his reference in paragraph 6 to “Edward Shapiro, P.C.” is in fact Edward Shapiro, Esq.

Notwithstanding the protestations of Mr. Moroff and Mr. Shapiro to the contrary, the language utilized by Mr. Shapiro, i.e., that the bills were mailed by “Edward Shapiro, Attorney at Law,” can only be construed as a representation that Mr. Shapiro personally mailed the bills. There can be no doubt that the statements purportedly made by Mr. Shapiro in these “affirmations” were deliberately false.

Equally disturbing to this court is Mr. Shapiro’s admission that none of the documents purportedly executed by Mr. Shapiro were, in fact, executed by him. Clearly, Mr. Shapiro cannot once again contend [*3]that it was not his intent to deceive the court. Pursuant to the Rules of the Chief Administrator of the Courts, all documents prepared by counsel that are “served on another party or filed or submitted to the court shall be signed by an attorney” (22 NYCRR 130-1.1a [a]). There was not a single excuse or good cause offered by counsel for his failure to execute any of these documents. Mr. Moroff similarly admitted that on at least two occasions he instructed someone else to sign his name to documents submitted to the court even though he was present in the office.

The original signature by counsel is intended to certify that the presentation of the papers or the contents contained therein are not frivolous. (See, 22 NYCRR 130-1.1a [b].) The purported unintended error in the attorney affirmation of mailing may be considered a mistake or an inadvertent error on the first few submissions of these similar motions. However, had counsel reviewed the moving papers, the error would have or should have been detected and corrected. The acknowledgment that the error was only corrected most recently, after this hearing was ordered, demeans the integrity of this court and the profession. The methods practiced by Mr. Shapiro and Mr. Moroff strongly suggest a greater interest in their own monetary benefit than in the integrity of the documents submitted.

Finally, Mr. Moroff and Mr. Shapiro contend that whether the affirmation of mailing satisfies a requirement of their prima facie case is no longer at issue once the carrier acknowledges receipt of the bill on the NF-10 denial of claim form. In support of their argument reference is made to the case of A.B. Med. Servs., PLLC 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 2004]).{**6 Misc 3d at 653}

Recognizing the court’s holding in A.B. Med. Servs., the finding therein is not applicable to at least three of the seven matters herein. In the cases of Olmecs v Progressive, Olmecs v General Ins. Co. and Olmecs v Progressive, an NF-10 was not contained in the moving or opposing papers. Accordingly, the plaintiff was required to make out a prima facie case in the first instance. However, as admitted by counsel, the affirmation of mailing was not executed by the person who actually mailed the bills. The plaintiff has therefore not established a prima facie case in these matters. In addition, the supporting affirmation of mailing was not actually executed by counsel.

In any event, such arguments are not relevant to the court’s concerns regarding counsel’s pattern of misrepresentation. An attorney, as an officer of the court, has an ongoing professional duty to state the truth in papers filed with the court. (See, Advisory Comm Notes, reprinted following NY Cons Laws Serv, Book 4C, CPLR 2106, at 440.) In acknowledgment of the attorney’s awareness of this duty and of the consequences for making a false statement, CPLR 2106 authorizes the attorney to simply sign his or her own statement [*4]and to affirm its truth subject to the penalties of perjury. Such affirmation has the same effect as an affidavit sworn to before a notary public. (See, V. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2106.)

An “affirmation” of an attorney which has not been signed by the attorney is of no force and effect. (See, Matter of American Sec. Ins. Co. v Austin, 110 AD2d 697 [2d Dept 1985].) Moreover, an affidavit purported to be that of one person, but signed by another is worthless and a nullity. (See, A.B. Med. Servs. PLLC v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists 2004]; Reboul, MacMurray, Hewitt, Maynard & Kristol v Quasha, 90 AD2d 466, 466 [1st Dept 1982], citing 1 NY Jur 2d, Acknowledgments, Affidavits, Oaths, Notaries and Commissioners § 58, at 257.) A falsely subscribed attorney’s affirmation is not only worthless, but may be sanctionable as well. (See, e.g., Park Health Ctr. v Country Wide Ins. Co., 1 Misc 3d 906[A], 2003 NY Slip Op 51529[U] [Civ Ct, Queens County 2003].)

In the court’s opinion, the failure of counsel to sign the affirmations filed with this court in each of these seven actions, without good cause shown, nullifies the motions. (See, 22 NYCRR 130-1.1a.) Plaintiffs’ motions for summary judgment are accordingly denied.{**6 Misc 3d at 654}

Similarly, in each of the actions the original summons and complaint, as admitted by counsel, does not bear his true signature. The fraudulent signatures offered by counsel in feigned compliance with the requirements of 22 NYCRR 130-1.1a are part of the pattern of deceptive practices engaged in by Mr. Shapiro and Mr. Moroff which has prejudiced the defendants in these actions. The court in its memorandum decision in these actions dated October 24, 2004 apprised Mr. Shapiro and Mr. Moroff of the differences in attorney signatures. This irregularity was one of the issues for which the hearing was scheduled. With full knowledge of the false signatures on the summonses and complaints, there was never an attempt or offer to correct the signatures in each action. Consequently, the complaint in each action shall be dismissed without prejudice. (See, 22 NYCRR 130-1.1a [a].) The cross motions are thereby moot.

Viewing the actions in totality, this court finds the actions of Mr. Shapiro and Mr. Moroff to be sanctionable under 22 NYCRR 130-1.2. Despite the comments by Mr. Moroff and Mr. Shapiro, these actions demonstrate an intent to deceive the court and their adversaries. Material factual statements were falsely presented to this court. This conduct is deemed frivolous and sanctionable. The egregious actions by counsel cannot be ignored. A total fine of $35,000 ($5,000 for each action) is hereby assessed against counsel for the plaintiffs to be paid to the Lawyers’ Fund for Client Protection, 119 Washington Avenue, Albany, New York 12210.

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 (M. Solomon, J.), entered on August 20, 2003, 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 a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced the instant suit to recover no-fault benefits for medical supplies furnished to its assignor. Plaintiff established prima facie entitlement to summary judgment by 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 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant failed to establish the existence of a triable issue of fact. Defendant denied plaintiff’s claim for no-fault benefits on the ground that plaintiff’s assignor failed to appear for independent medical examinations (IMEs) scheduled prior to defendant’s receipt of plaintiff’s claim. While defendant was entitled to request IMEs prior to its receipt of plaintiff’s claim, failure to attend such IMEs is not subject to sanctions under the claim [*2]rules of the insurance regulations, and hence, such failure of plaintiff’s assignor did not constitute a proper basis for denial of no-fault benefits (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]). There being no other defense asserted by defendant, plaintiff’s motion for summary judgment is granted and [*3]
the matter is remanded 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: December 22, 2004