[*1]

Civil Court of the City of New York, Kings County, September 23, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, P.C. (Robert J. Baker of counsel), for plaintiff. Meiselman, Denlea, Packman, Carton & Eberz, P.C. (Stephen L. Bauley of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

This motion and cross motion for summary judgment raises a question of first impression under the regulations enacted pursuant to New York’s No-Fault Insurance Law.

Plaintiff sued defendant insurer to recover for first-party benefits under New York’s No-Fault Law. In support of its claim, plaintiff submitted proof of claim to defendant, including its proof of mailing. Plaintiff alleges that defendant failed to pay or deny its claim within 30 days as required by the No-Fault Law, nor has defendant requested additional verification. Under such circumstances, plaintiff asserts that defendant is precluded from raising a defense to its claim. (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997].) Therefore, plaintiff moved this court for summary judgment pursuant to CPLR 3211.

In opposition to plaintiff’s motion, defendant raised several issues, all of which have been dealt with during oral argument, leaving only one issue to be decided by the court. [*2]Defendant maintains that it does not have to pay the claim because plaintiff is not currently registered with the New York State Department of Education. This argument forms the basis of defendant’s cross motion for summary judgment. Plaintiff’s counsel has represented that plaintiff, although not currently registered, was registered at the time the services that form the basis of this claim were provided.

Therefore, the issue to be determined by the court is: Whether a health care provider who is registered with the New York State Department of Education at the time services are provided may recover the value of those services under New York’s No-Fault Insurance Law if the provider is no longer registered at the time payment for those services is sought?

11 NYCRR 65-3.16 (a) (12) states:

“A provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

To date, this section of the regulation has not been subject to judicial scrutiny.

The words of the statute would appear to be clear on its face: licensed to “perform such service.” However, without any other direct interpretation of this regulation, the court must look to other circumstances in which the judiciary has determined similar issues.

Section 691.10 (b) of title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, dealing with the conduct of attorneys, states that “[a] disbarred, suspended or resigned attorney may be compensated . . . for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation.”

The rationale behind this regulation is that the services were provided by the attorney when he or she was licensed, and therefore the attorney is entitled to appropriate compensation for the work the attorney legally performed. (See generally, Casey v Ruffino, 306 AD2d 304 [2d Dept 2003]; Lee v Hayt, Percy & Mermelstein, 4 Misc 3d 1012[A], 2004 NY Slip Op 50853[U] [2004].)

Further, under general principles of contract law, it is well settled that contracts made by private parties must necessarily be construed in the light of the applicable law at the time of their execution. (10 NY Jur 2d, Contracts § 204, at 112; see City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Empls. Assn. v City of Troy, 36 AD2d 145 [3d Dept 1971].) Generally, therefore, the validity of a contract will depend upon the law as it existed at [*3]the time it was made. (Goldfarb v Goldfarb, 86 AD2d 459 [2d Dept 1982].) The only exception to this rule occurs if there is a variation in the law that is made due to changes in public policy. Otherwise, the contract will be interpreted according to the law in effect at the time of its execution. (Bloomfield v Bloomfield, 97 NY2d 188 [2001].)

The court does not find any legislative intent that indicates it is against public policy to reimburse a medical provider for services rendered that were lawfully performed, regardless of the subsequent status of the medical provider.

Based on the foregoing, the court holds that a medical provider may be reimbursed for services rendered while he or she was registered and licensed to perform such services under section 65-3.16 (a) (12) of 11 NYCRR, even if the provider subsequently becomes unregistered.

Plaintiff’s motion for summary judgment is granted. Defendant’s cross motion for summary judgment is denied.

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 (H. Miller, J.), entered on August 18, 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 health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignors by submission of proof
that it had mailed the statutory claim forms, that defendant had received them, and that defendant did not pay or deny the claims within the 30-day statutory 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]; Nyack Hosp. v State Farm Mut. Auto Ins. Co., 8 AD3d 250 [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]).

Despite its untimely denial of benefits, defendant is not precluded from asserting the [*2]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]). However, the affidavit of defendant’s attorney who had no personal knowledge of the facts, and who sets forth bare and conclusory allegations of fraud, constituted a submission in opposition to plaintiff’s motion which was insufficient to raise a triable issue of fact. Under these circumstances, the defendant’s submissions in opposition to plaintiff’s motion were insufficient to raise an issue of fact as to whether defendant’s denial of benefits was “premised on the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (id. at 199).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2004

[*1]

Civil Court of the City of New York, Queens County, September 20, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for petitioner. Samuel K. Rubin, Bethpage (Barbara Ann Anzelmo of counsel), for Eagle Insurance Company, respondent. Wade, Clarke, Mulcahy, New York City (Nicole Y. Brown of counsel), for Arbitration Forums, Inc., respondent.

OPINION OF THE COURT

Bernice D. Siegal, J.

Motion by petitioner to vacate an arbitration award on the grounds that Arbitration Forums, Inc. has not only misapplied the statute of limitations three times but has flouted an order of this court, and for the imposition of sanctions against respondent Arbitration Forums, Inc. for such contumacious and frivolous behavior is granted to the extent of vacating said arbitration award, remanding the matter for a new hearing before yet another arbitrator and setting the matter of sanctions against Arbitration Forums, Inc. and Eagle Insurance Company down for a hearing on September 27, 2004 at 9:30 a.m. in Part 39 of this court with memoranda of law to be served upon opposing counsel and filed with the court on or before September 20, 2004. The court, sua sponte, extends the matter of the imposition of sanctions to also apply against Eagle Insurance Company as, in light of the law of the case and clear decisional law to the contrary, Eagle opposed the petition to vacate and cross-moved to confirm the erroneous award. The court recognizes that in opposition to the petition, Arbitration Forums, Inc. has indicated that it will vacate the award and reopen the arbitration. Relief for petitioner, however, remains contingent. Should such vacatur indeed occur prior to the entry of this judgment, it is understood that the portion of the within motion respecting the vacating of the award would be moot. However, the issues of whether this court has the authority to impose sanctions upon Arbitration Forums, Inc. and, if so, does Arbitration Forums’ action warrant such punishment, would be nonetheless ripe for review and require a reasoned response. Additionally, respondent’s cross motion to confirm on the grounds that the misapplication of the statute of limitations is not sufficient grounds to vacate an arbitrator’s decision is unavailing and is denied in all respects.

Petitioner, the assignee of an individual allegedly injured in a motor vehicle accident by the respondent’s insured, initially sought reimbursement pursuant to 11 NYCRR 65.10 through compulsory arbitration required for PIP loss transfer. In its initial decision dated October 13, 1998, Arbitration Forums held that the petitioner failed to prove liability [*2]in that it commenced the arbitration more than three years from the date of loss. Petitioner argued that the correct statute of limitations should have been three years from the date of first payment. The award was eventually vacated by the Appellate Term, by order dated October 20, 2000, holding that the imposition by the arbitrator of the wrong statute of limitations was arbitrary and capricious and remanded the matter for a new hearing before another arbitrator. The matter was set down for a new hearing, whereupon it was dismissed by the arbitrator on May 15, 2001 upon the same grounds. The court again vacated the arbitration award as the award was “based on an erroneous application of the statue [sic] of limitations” on or about September 10, 2001. The matter was once again submitted for arbitration and once again, on July 15, 2003, the arbitration award was granted in favor of respondent on the grounds that “no fault statue [sic] based on 3 yrs from date of loss not date of 1st payment.”

Scope of Review

The scope of review of compulsory arbitration decisions has long been held to be clearly beyond the restrictions engrafted in CPLR 7511. In 1980, the Second Department held that “[t]he test thus applicable for review of no-fault arbitrations where error of law is in issue is . . . whether any reasonable hypothesis can be found to support the questioned interpretation.” (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [2d Dept 1980].) The Court of Appeals further refined the test and held that where arbitration is mandatory, an award “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Thus, the stricter standard imposed upon review of compulsory arbitration applies to the case at bar as the petitioner herein sought reimbursement of no-fault payments pursuant to Insurance Law § 5105 and New York State Insurance Regulations (11 NYCRR) § 65.10, entitled “Mandatory arbitration procedures for insurers, self-insurers and compensation providers under section 5105 of the Insurance Law.” Therefore, there is no question that the underlying arbitration was compulsory, derived from statute and not voluntary. Thus, the question of law is whether the imposition of a three-year statute of limitations from the date of the accident was arbitrary and capricious.

Statute of Limitations

CPLR 214 imposes a three-year statute of limitations and, specifically, CPLR 214 (2) imposes a three-year statute on liabilities imposed by statute.

The Court of Appeals noted almost one decade ago that in determining the applicability of CPLR 214 (2):

“[T]he pertinent inquiry is whether the statute creates a liability ‘for wrongs not recognized in the common or decisional law,’ and which would not exist but for the statute (State of New York v Cortelle Corp., 38 NY2d 83, 86; see, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175; State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 88; Murphy v American Home Prods. Corp., 58 NY2d 293, 307; Siegel, NY Prac § 35, at 41 [2d ed]).” (Hartnett v New York City Tr. Auth., 86 NY2d 438, 444 [1995].)

Recently, the Fourth Department specifically held that in a loss transfer claim, which is [*3]statutorily created, the statute of limitations is governed by CPLR 214 (2) and “accrues on the date of payment of no-fault benefits to the claimant, because by then ‘all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain the relief in court.’ ” (Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42 [4th Dept 2003] [citations omitted].) This is true in spite of the recent pronouncement of the Court of Appeals wherein it found that plaintiff insurer seeking reimbursement from the tortfeasor was foiled by a three-year statute of limitations from the date of the accident as “it involves a traditional equitable subrogation, not a liability created by statute” (Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004]).

Respondent Eagle’s reliance on Allstate v Stein is therefore misplaced. The case at bar is not one that involves “traditional equitable subrogation,” rather it involves loss transfer plucked from New York State’s No-Fault Law, between two insurers. As the rights and relationships between the parties were created by statute and did not exist in the common law, the statute of limitations found in CPLR 214 (2) must be applied.

Further, the issue of which statute of limitations to impose for mandatory no-fault arbitrations is not new to the appellate courts in this department or to these respondents. The Appellate Term has consistently held in both published and unpublished decisions during 2003 that the statute of limitations of three years from the date of payment is applicable in mandatory loss transfer arbitrations between carriers and failure to apply the correct statute of limitations is arbitrary and capricious. (State Farm Mut. Auto. Ins. Co. v Eagle Ins. Co., 6 Misc 3d 27 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898[U] [App Term, 2d & 11th Jud Dists 2003].)

Moreover, as Allstate v Stein (supra) is not dispositive, the Appellate Term has spoken on this very dispute between these very parties, no appeal has been taken and, thus, its decision entered on October 20, 2000, wherein it held that the misapplication of the statute of limitations was arbitrary and capricious, remains the law of the case (see People v Evans, 94 NY2d 499 [2000]; Rubenfeld v Gambino, 289 AD2d 319 [2d Dept 2001]; Kowalski Enters. v Sem Intl., 278 AD2d 371 [2d Dept 2000]; Shroid Constr. v Dattoma, 250 AD2d 590 [2d Dept 1998]).

Accordingly, the motion by petitioner to vacate the arbitration award is granted with costs, but the demand for sanctions is set down for a hearing on September 27, 2004, including but not limited to evidence of attorney’s fees expended on petitioner’s behalf for the various arbitrations and petitions to vacate after the Appellate Term decision, with memoranda of law respecting the imposition of sanctions on both Arbitration Forums, Inc. and respondent Eagle Insurance and its attorneys, including whether this court has the authority to impose sanctions in this matter and the basis therefor to be served and filed with [*4]the court prior to September 20, 2004. Respondent’s cross motion is denied in all respects.

[*1]

Supreme Court, Appellate Term, Second Department, September 20, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Eric H. West, Long Island City, for respondent.

{**5 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, plaintiff moved for summary judgment in the amount of $980, which motion was denied by order entered September 10, 2003.

Contrary to the determination of the court below, plaintiff’s billing manager did not have to allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor. Said affidavit set forth the billing manager’s duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]), and said exhibits established that the supplies were furnished to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a properly completed claim form to defendant for $980 (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], [*2]2003 NY Slip Op {**5 Misc 3d at 57}51700[U] [App Term, 9th & 10th Jud Dists 2003]). It is uncontroverted that defendant had until July 17, 2003 to pay or deny plaintiff’s claim. The plaintiff’s billing manager asserted that the defendant’s denial was untimely and he submitted a photocopy of an envelope, postmarked August 29, 2003, which allegedly contained the denial form. Defendant, however, submitted the affidavit of its claims adjuster who attested to the routine procedure and practice of her office, in the regular course of its business, which indicates that the denial had been duly addressed and mailed to plaintiff on July 17, 2003. In view of the foregoing, we find that the court below properly determined that a triable issue of fact existed (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

McCabe, P.J., Covello and Tanenbaum, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered August 18, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.
Plaintiff commenced this action to recover $2,637.07 in first-party no-fault benefits for medical services it rendered to its assignor pursuant to Insurance Law §
5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered August 18, 2003.

Contrary to the determination of the court below, the affidavit of plaintiff’s billing manager need not have stated that he had personal knowledge that the services were rendered to the assignor. Said affidavit need only have established his duties as the billing manager sufficient to support the inference that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception of the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]). The affidavit herein was clearly adequate and laid a proper foundation for the court to consider the exhibits attached thereto pursuant to CPLR 4518 (a), and said exhibits established that the services were rendered to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement [*2]to summary judgment by showing that it submitted a properly completed proof of claim and the amount of the loss (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). Defendant, however, failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]), and its requests for examinations under oath did not toll the 30-day period inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392 [U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the cases of Han-Ki Lee v American Transit Ins. Co. (304 AD2d 713 [2003]) and Galante v State Farm Ins. Co. (249 AD2d 506 [1998]) are distinguishable on their facts.

An untimely denial, however, did not preclude defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant
possessed 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]).
As a result, because 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 was properly denied (see Ocean Diagnostic Imaging, P.C. v State Farm Mut. Auto. Ins. Co., (No. 2003-1289 NC, decided herewith and A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., (No. 2003-799 NC, decided herewith).
Decision Date: September 17, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (A. Cooper, Sr., J.), dated March 5, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiffs’ affidavit in support of their motion for summary judgment set forth only that the affiant is a “practice and billing manager” and an “officer” of “plaintiff” notwithstanding that there are three named plaintiffs each asserting independent standing as an insured’s assignee. As we cannot assume that the affiant acted on behalf of one particular plaintiff or on behalf of all of the plaintiffs (A.B. Med. Servs. v Allstate Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), such an affidavit is “insufficient to establish that plaintiffs provided defendant with properly completed claim forms” (id.). We further note that as to D.A.V. Chiropractic P.C., the record before us contains no assignment of benefits form on plaintiff’s behalf, an additional reason for the motion’s denial as to this plaintiff. Accordingly, plaintiff’s motion for summary judgment [*2]should have been denied upon plaintiffs’ failure to make out a prima facie case.

With respect to defendant’s cross motion for summary judgment, upon the papers presented, defendant failed to establish its entitlement to judgment dismissing the action as a matter of law. Defendant’s claim that the assignors failed to cooperate with its requests to examine them under oath is without merit because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.15 [d] [3]; 65.2 [a], with 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002; e.g. King’s Med. Supply Inc v Progressive Ins., 3 Misc 3d 126 [A], 2004 NY Slip Op 501312 [U] [App Term, 2d & 11th Jud Dists]). Defendant’s argument that its policy provisions require an insured’s cooperation with an examination under oath is likewise misplaced in that the mandatory no-fault endorsement “cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]).

However, for the reasons set forth in Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (No. 2003-1289 N C decided herewith), involving the same assignors and the same traffic incident, we find defendant’s claim, that the underlying traffic incident was staged pursuant to a scheme to defraud, to be supported by sufficient factual allegations in admissible form to require a trial thereon, albeit insufficiently established to warrant accelerated judgment in defendant’s favor.
Decision Date: September 17, 2004

[*1]

Supreme Court, Appellate Term, Second Department, September 17, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Bruno Gerbino & Macchia LLP, Melville, and Rivkin Radler LLP, Uniondale (Evan H. Krinick and Stuart M. Bodoff of counsel), for respondent.

{**5 Misc 3d at 46} OPINION OF THE COURT

Memorandum.

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

Plaintiff, a health care provider, seeking to recover assigned first-party no-fault benefits, established a prima facie entitlement to summary judgment by the submission of a complete proof of claim and the amount of the loss (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]). Defendant failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not toll the 30-day period, inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists 2003]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, an untimely denial does not preclude a defendant from asserting the defense [*2]that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed 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]). As a result, because 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 was properly denied.

McCabe, P.J., Rudolph and Angiolillo, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, September 14, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for plaintiffs. Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

OPINION OF THE COURT

Ann Elizabeth O’Shea, J.

Plaintiffs A.B. Medical Services PLLC and LVOV Acupuncture P.C. instituted this action to recover first-party, no-fault benefits for medical services rendered to their assignor, Danny Arenas, who was injured in an automobile accident on March 7, 2003. Plaintiffs provided medical services to Mr. Arenas between March 24, 2003 and June 5, 2003. Each of the plaintiffs made several claims for payment. Only four of those claims are in issue here, each originating from plaintiff A.B. Medical.

Under the no-fault insurance regulations, an insurer must pay or deny a claim within 30 days after it receives a properly completed proof of claim (11 NYCRR 65-3.8 [c]). While an insurer may request additional information to verify a claim, it must do so within 15 days after receiving the proof of claim (11 NYCRR 65-3.5 [b]), and it must then pay or deny the claim within 30 days after receipt of the requested information (11 NYCRR 65-3.8 [a] [1]; [c]).

In order to establish a prima facie case of entitlement to summary judgment on its claims for first-party, no-fault benefits, a plaintiff medical provider need only provide proof that it submitted and defendant received a properly completed claim form, including a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), and that defendant did not pay or deny the claim within 30 days after its receipt of the proof of claim or of additional information in response to a [*2]timely request for verification (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2d Dept 2004]).

All four claims were denied on the asserted ground that the services provided were not medically necessary. The forms denying three of the four claims in issue were dated more than 30 days after defendant had received complete proofs of claim. One—for $604.24—was received by defendant on April 29, 2003, and the denial form is dated June 3, 2003, 35 days after the claim was received. A claim for $240 and another for $1,972.08 were received by defendant on June 11, 2003; the denial form for each of those is dated July 22, 2003, 41 days after receipt of the claim. The fourth claim, for $360, was received by defendant on April 14, 2003. Although the denial form is dated May 14, 2003, exactly 30 days after receipt of the claim, the envelope in which the denial was mailed is postmarked May 19, 2003, 35 days after receipt of the claim. In that situation, the operative date for determining the timeliness of the denial must be the date on which the denial was mailed, not the date stated on the denial form (accord Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]). To conclude otherwise would undermine the primary goal of the no-fault system, which is the prompt consideration and processing of claims for losses resulting from automobile accidents (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), permit unwarranted delays in the notification of the denial, or encourage the backdating of denials.

Despite the untimeliness of its denials, defendant contends that the assignment of benefits submitted by plaintiff in conjunction with its proofs of claim is deficient because it is undated and the signature of the purported assignor is unauthenticated. While the no-fault regulations require that a proof of claim include a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), the Appellate Term has rejected the argument that the signature on an assignment of benefits must be authenticated for a plaintiff to meet its prima facie burden on a motion for summary judgment (see Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U] [2004], revg Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., Civ Ct, Kings County, July 7, 2003, Sweeney, J., Index No. 75326/02). There is no principled reason why the absence of a date on an assignment should be treated differently from the absence of an authentication of the signature (but see A.B. Med. Servs. v American Tr. Ins. Co., Civ Ct, Kings County, Apr. 13, 2004, Gesmer, J., Index No. 69587/03). Defendant had the opportunity to object to the form or sufficiency of the assignment and to request the original assignment pursuant to its right to seek verification of the claim at the claims stage of the proceeding (see 11 NYCRR 65-3.5 [a]-[c]; 65-3.11 [c]). Its failure to do so results in a waiver of any defense based upon an asserted infirmity in the assignment (New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]; Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U]), or on any other asserted deficiency in the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2d Dept 2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]), as well as any defense based upon lack of medical necessity (see e.g. Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists, June 27, 2002]).

Having submitted proof that it mailed and defendant received its claim forms demonstrating the amount of the loss sustained and that defendant failed to request verification of the assignments or claims or to pay or deny those claims within the applicable time limits, plaintiff established its prima facie entitlement to summary judgment on each of its claims (see New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]). Since defendant is precluded from raising any defense with respect to the sufficiency of the claim forms or the medical necessity of the services provided, there are no issues of fact or law that remain in dispute.

Accordingly, plaintiffs’ motion for partial summary judgment is granted.

Supreme Court, Nassau County

6715/03

Zelda Jonas, J.

Pursuant to the order of this Court dated August 19, 2003, this matter was set down for a framed-issue hearing to determine whether petitioner, Progressive County Mutual Insurance Company (hereinafter referred to as “Progressive”), is entitled to a stay of the uninsured motorist arbitration commenced by the respondents, Diandre McNeil and Tatyana Newbern, under the [*2]uninsured motorist endorsement of the insurance policy and to determine the validity of the disclaimers of coverage forwarded by respondent, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm”), to its insured, Elicier Delgado, Jr., and the reported operator of the State Farm-insured vehicle, Ernesto Ortiz. State Farm has disclaimed coverage upon the ground that the collision was an intentional, staged event by its insured to defraud State Farm. The respondents, Diandre McNeil and Tatyana Newbern, were in a vehicle that was struck in the rear by the vehicle insured by Elicier Delgado, Jr. and Ernesto Ortiz on February 18, 2002.

Petitioner Progressive claims that the arbitration should be permanently stayed because the offending vehicle is insured by respondent State Farm. Petitioner claims that State Farm’s disclaimer of coverage is defective since the notice of disclaimer was issued in an untimely manner, and the injured parties were never served with the notice of disclaimer as required by Insurance Law §3420 (d). Therefore, petitioner claims that the respondents insured by Progressive cannot seek arbitration under the uninsured motorist endorsement of the insurance policy. In the alternative, petitioner claims that if the Court finds that there is no insurance because of an intentional collision, then the injured parties still cannot receive compensation under the Progressive uninsured motorist endorsement because the endorsement only covers injuries that are caused by accidents.

A bench trial was held on March 4, 2004. The parties stipulated that the rear-end collision occurred between the Delgado vehicle and the McNeil-Newbern vehicle on February 18, 2002. The sole witness to testify is Miss Fink, the investigator for State Farm. The Court credits her testimony as being credible.

Findings Of Fact

Elicier Delgado owned a 1989 Honda which was insured by State Farm on the date of the collision, February 18, 2002. The inception date of the automotive policy was January 18, 2002. The policy was a standard automobile policy under an assigned risk plan, and a premium payment was paid at the time of its inception. On February 3, 2002, Delgado’s vehicle was involved in a rear-end collision in which his vehicle struck the preceding vehicle. On February 18, 2002, Delgado’s vehicle was involved in a second rear-end collision with the respondents, McNeil and Newbern. Again, his vehicle struck the rear of the preceding vehicle, this time the respondents’ vehicle, a 1998 Dodge. There is a discrepancy over the operator of Delgado’s vehicle during the February 18th collision. Mr. Delgado informed the State Farm investigator that he was the operator of the vehicle, while the police report indicates that Ernesto Ortiz was the operator. On March 9, 2002, State Farm canceled Delgado’s insurance policy for nonpayment of the premium. Delgado never made a subsequent payment since his initial premium payment. On June 5, 2002, an investigator visited Delgado’s residence at which time Delgado informed the investigator that his vehicle had been involved in the February 18th accident. On June 6, 2002, an investigator unsuccessfully attempted to get a statement from Ortiz by visiting his home. On September 20, 2002, Delgado was scheduled for an Examination Under Oath (hereinafter referred to as EUO), but he failed to appear. On October 9, 2002, the State Farm conducted EUO’s of two passengers in the Delgado vehicle, Manano Ortiz and Eli Ramos. On October 27, 2002, Delgado was scheduled for a second EUO and once again failed to appear. Miss Fink [*3]testified that on February 5, 2003, State Farm issued letters to Ortiz, Delgado, McNeil, and Newbern to inform them that they were disclaiming coverage as they concluded that the Delgado’s vehicle was involved in an intentional fraud and not an accident.

Conclusions Of Law

Respondent State Farm is correct in asserting that the offending Delgado vehicle is not covered under the automotive policy issued by respondent if the collision was an intentional, staged event and not caused by an accident (Metro Medical Diagnostics, P.C. v. Eagle Insurance Company, 293 A.D.2d 751).

The respondent State Farm has demonstrated that the collision that occurred on February 18, 2002 was one of two accidents that occurred over a short period of time, i.e. two weeks, that were deliberately caused to fraudulently obtain insurance benefits. An insurer asserting a lack of coverage based upon a defense of fraud must come forward with “the facts” or a “foundation for its belief” that the incident was a deliberate, staged event in furtherance of a scheme (Mount Sinai Hospital v. Triboro Coach Inc., 263 A.D.2d 11, at 19, citing Central General Hospital v. Chubb Group of Ins. Cos., 90 N.Y. 2d 195, 199; Inwood Hill Medical P.C. v. Allstate Insurance Company, 2004 WL 1381082). Where it is proven that the vehicles were involved in several collisions within a short period of time after the insurer issued insurance policies for vehicles registered to the insured, that is sufficient to satisfy the definition of “founded belief” (State Farm Mutual Automobile Ins. Co., v. Leguerre, 305 A.D.2d 490; Inwood Hill Medical P.C. v. Allstate Insurance Company, supra, at 10). It has been held that two collisions that occurred in a similar manner, coupled with discrepancies within the statements provided by the insured, constituted a “compelling and persuasive body of circumstantial evidence” that the underlying loss resulted from an intentional collision arranged for the purpose of insurance fraud (National Grange Mutual Insurance Company v. Vitebskaya, 1 Misc3d 774, at 777). The inference to be drawn from the circumstantial evidence must be logically compelling and prove that it was “more likely” or “more reasonable” that the collision was a result of a staged, intentional event rather than caused by an accident. (See, Gayle v. New York, 92 N.Y.2d 936.)

At the framed-issue hearing, respondent State Farm has established sufficient facts through the testimony of their investigator, Miss Fink, that created the reasonable inference of a founded belief that the collision on February 18, 2002 was an intentional, staged event. The State Farm-insured vehicle, a 1989 Honda, was involved in two alleged accidents within a two-week period of time and also within one month after an assigned risk policy of insurance was assigned to State Farm. In each of those incidents, the 1989 Honda allegedly rear ended another car while there were multiple individuals in the 1989 Honda as passengers. After each of these alleged accidents, the multiple individuals in the State Farm-insured vehicle made claims of injuries and no-fault claims. The insurance policy covering the 1989 Honda was cancelled shortly after these two alleged accidents as the State Farm-insured Delgado never made premium payments subsequent to the initial payment made when he procured the assigned risk policy of insurance. Finally, neither the State Farm insured nor the alleged operator of the State Farm-insured vehicle appeared for examinations under oath in connection with the investigation of this claim. Accordingly, the Court finds that State Farm presented compelling and persuasive circumstantial evidence that the collision that occurred on February 18, 2002 was an intentionally staged event. [*4]

Contrary to petitioner’s contention, State Farm was not required by Insurance Law §3420 (d) to issue a notice of disclaimer to the insured and the injured parties because its denial of coverage was based on a lack of coverage for the incident from a deliberate collision caused in furtherance of an insurance fraud scheme which is not a covered accident and, therefore, not an exclusion under the policy (State Farm Automobile Insurance Company v. Laguerre, 305 A.D.2d 490).

Because the injuries sustained by respondents, Diandre McNeil and Tatyana Newbern, were caused by an intentional collision, they also cannot recover from the uninsured motorist endorsement of the Progressive policy which provides only for compensation for injuries sustained by a covered person “caused by an accident.” This language in an insurance policy has been interpreted by the courts to exclude recovery for intentional conduct (McCarthy v. MVAIC, 16 A.D.2d 35, aff’d, 12 N.Y.2d 922; In the Matter of Progressive Northwestern Insurance Company v. Van Dina, 282 A.D.2d 680; In the Matter of Aetna Casualty & Surety Company v. Perry, 220 A.D.2d 497). In particular, it excludes coverage under the uninsured motorist policy endorsement for an intentional collision whether it was motivated by malice or fraud (In the Matter of Government Employees Insurance Company v. Shaulskaya, 302 A.D.2d 522).

The Court finds this can result in an injustice since respondents, McNeil and Newbern, appear to be without any recourse for remuneration of injuries. It is also disturbing given the fact that the line of appellate cases which constitutes precedent binding upon this Court completely overlooks that the uninsured motorist insurance was designed for the protection of the insured victims for which insurers pay an additional premium. Legislative action is necessary in order to remedy this glaring void where innocent victims of intentional collisions are left without any recourse for compensation for their injuries by the insurance industry.

Accordingly, petitioner’s application for a permanent stay of arbitration under the uninsured motorist insurance policy endorsement pursuant to CPLR §7502 is granted in its entirety.

Submit order.

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J.S.C.