—[*1]

In an action to recover no-fault benefits, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated November 12, 2003, as granted the plaintiff’s motion for summary judgment and denied the defendant’s cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff met its initial burden of demonstrating its entitlement to summary judgment by establishing that the defendant did not deny or pay the two claims in question within 30 days (see Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]). The defendant thereafter failed to submit sufficient evidence in admissible form to raise a triable issue of fact regarding whether the medical treatment alleged in the first cause of action was not causally related to an insured accident and whether the underlying contract of insurance alleged in the third cause of action had been cancelled. Therefore, the plaintiff’s motion for summary judgment was properly granted.

In light of our determination, the defendant’s remaining contentions are academic. Smith, J.P., S. Miller, Crane and Rivera, 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 District Court, Nassau County (H. Miller, J.), dated May 9, 2003, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded for the calculation of statutory interest and an assessment of attorney’s fees.

In this action seeking assigned first-party no-fault benefits, plaintiff health service provider established a prima facie entitlement to summary judgment by the submission of proper proof of the claim and the amount of the loss (see Insurance Law § 5106 [a]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Defendant has failed to raise any triable
issues of fact. Defendant acknowledges receiving plaintiff’s proof of claim on August 15, 2001, and did not send its denial of the claim until November 17, 2001, well beyond the 30-day period within which it was required to pay or deny the claim (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not serve to toll the 30-day period, since the applicable insurance regulation did not contain provisions requiring a claimant to submit to examinations under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Servs. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]). Accordingly, plaintiff’s motion for summary judgment should have been granted (see King’s Med. Supply, Inc. v Progressive Ins., Co., 2004 NY Slip 50311 [U] [App [*2]Term, 2nd & 11th Jud Dists]), and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 28, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 26, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Teresa M. Spina, Woodbury (Steven A. Giampaolo of counsel), for respondent.

{**4 Misc 3d at 96} OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action to recover $1,606.87 in first-party no-fault benefits, as well as statutory interest and attorney’s fees, for medical services 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 May 14, 2003.

Contrary to the determination of the court below, we find that the affidavit of plaintiff’s billing manager, though imprecisely worded, sufficed to establish its cause of action prima facie (CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; 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 2003]). Moreover, the billing manager was not required to have personal medical knowledge to establish the medical necessity of the claim inasmuch as a prima facie showing of entitlement to summary judgment is established in the first instance by the submission of a properly completed claim form (see Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., supra; Amaze [*2]Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Consequently, the burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant’s denial was made within 30 days of its receipt of the claim (see Insurance Law § 5106 [a]). However, inasmuch as the peer review, upon which the denial is based, concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination, we find that the denial did not “fully and explicitly” set forth the reasons therefor (section 31 of the NF-10 form), did not inform plaintiff of defendant’s position regarding the disputed matter, and, thus,{**4 Misc 3d at 97} did not set forth a factual basis and medical rationale sufficient to establish the absence of medical necessity (see Amaze Med. Supply v Eagle Ins. Co., supra). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply v Eagle Ins. Co., supra).

In view of the foregoing, plaintiff is granted summary judgment in the amount of $1,606.87, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated pursuant thereto.

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

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, Kings County (D. Silber, J.),

entered May 14, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion was denied by order of the court below.

In support of their motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are two distinct plaintiffs in this matter which have different business addresses. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [*2][App Term, 9th & 10th Jud Dists]).

Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to summary judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2003, as denied its motion for

summary judgment.

Order insofar as appealed from 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.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In its moving papers, plaintiff argued that because
the defendant failed to timely deny its claim within the statutory 30-day period, it
was entitled to summary judgment as a matter of law. In order to establish a
prima facie entitlement to summary judgment, plaintiff was required to show that it
submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v
Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The presumption that an addressee received an item by mail 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 (see Residential Holding
Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Tracy v William Penn Life Ins. [*2]
Co. of N.Y., 234 AD2d 745 [1996]; Pardo v Central Coop. Ins. Co., 223 AD2d 832 [1996]). Plaintiff attached to its moving papers a signed post office ledger with defendant’s name which was date-stamped September 18, 2001. In addition, in his affidavit in support of plaintiff’s motion, Mr. Bronsteyn (plaintiff’s president) stated
that plaintiff mailed the bills to defendant on September 18, 2001. Thus, plaintiff
made out a prima facie case of its entitlement to summary judgment thereby
shifting the burden to the defendant to come forward with a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In support of defendant’s motion for summary judgment and in
opposition to plaintiff’s motion, defendant’s attorney merely argued that defendant’s denial letter was timely since it was dated November 7, 2001 and stated therein
that defendant received plaintiff’s claim on October 18, 2001. Since defendant’s attorney lacked personal knowledge of the underlying facts, and defendant’s
business records and standard office practices regarding mailings, his affirmation
was of no probative value (see Barton v County of Monroe, 92 AD2d 746 [1983]). Inasmuch as defendant failed to establish that a triable issue of fact exists, the
lower court should have granted plaintiff’s motion for summary judgment. 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: May 20, 2004