[*1]

District Court of Suffolk County, Third District, May 19, 2004

APPEARANCES OF COUNSEL

Carman, Callahan & Ingham, LLP, Farmingdale (Paul A. Barrett of counsel), for defendant.

{**4 Misc 3d at 229} OPINION OF THE COURT

C. Stephen Hackeling, J.

This decision arises out of the commercial claims complaint of plaintiff Dependable Ambulette, Inc., dated March 24, 2003, which was tried on May 6, 2004. The defendant, Progressive Insurance Co., has raised oral, jurisdictional and merit defenses. Written answers are not required pursuant to UDCA 1804-A which dispenses with most rules of “practice, procedure, pleading or evidence” and which requires the claim to be resolved in a manner as to provide “substantial justice” according to the rules of “substantive law.”

The Facts

The undisputed relevant facts are the plaintiff rendered ambulette services on several dozen occasions to Boris Cherkalin between September 30, 2002 and January 4, 2003 and took an assignment of his claim as against the patient’s motor vehicle no-fault insurer Progressive Ins. Co. of New York. Plaintiff billed Progressive $2,600 for said services and received a timely written denial of the claims.

Jurisdictional Defense

The defendant first argues that plaintiff lacks jurisdiction to bring this proceeding pursuant to the provisions of UDCA 1809, which provides: “[n]o corporation . . . and no assignees of any claim shall institute an action or proceeding under this Article . . . .” The defendant submitted the unreported decision of the New York City Court, Judge Pineda-Kirwan, dated April 20, 2004, in support of this position. This decision references an analogous sister statute of the New York City Civil Court Act, section 1809.

While persuasive in a small claims proceeding, defendant’s precedent is inapplicable to a [*2]commercial claim action brought pursuant to article 18-A of the Uniform District Court Act. The jurisdictional limitations and prohibition against assignees is limited to article 18 claims. The subject action is brought under article 18-A (commercial claims), which is a separate and distinct article. The commercial claims article does not bar corporate assignees from instituting an action. It only limits these {**4 Misc 3d at 230}plaintiffs to five actions per month. (See, UDCA 1803-A.) Accordingly, the court finds that plaintiff has jurisdiction to maintain this action.

Are Assigned Ambulette Services Eligible for No-Fault Reimbursement

The dispositive issue presented in this action is whether assigned ambulette services are eligible for reimbursement under the No-Fault Law, Insurance Law § 5102. The facts are not in dispute as the defendant’s only ground for denying payment was stated to be:

“Regulation No. 68 (11 NYCRR 65), [65-3.11] Direct Payments (a),

” ‘An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant or, when appropriate, to the applicant’s parent or legal guardian or to any person legally responsible for the necessities, or upon assignment by the applicant or any of the aforemention persons, shall pay benefits directly to providers of health care services as covered under section 5102 (a)(1) of the Insurance Law, or to the applicant’s employer for loss of earnings from work as authorized under section 5102 (a) (2) of The Insurance Law. Death Benefits shall be paid to the estate of the eligible injured person.’ Since you are not a provider of health care services, you cannot be paid directly by an insurer. Direct payment of the claimed benefits to you is therefore denied. You must seek payment from the applicant and any claims for reimbursement filed by the applicant, will then be considered.”

For services to be reimbursable under New York’s No-Fault Law they must be medically necessary health services as enumerated under Insurance Law § 5102 and subject to the requirements of No-Fault Regulation 68 (11 NYCRR 65-4.15).

Insurance Law § 5102 determines whether a particular service or product purchased is a covered expense eligible for reimbursement under the No-Fault Law. The statute reads as follows:

“All necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental ambulance,{**4 Misc 3d at 231} x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical [*3]remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services . . . For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.” (Insurance Law § 5102 [a] [1].)

The term “any other professional health services” covered under section 5102 (a) (1) (iv) is defined under Regulation 68 (11 NYCRR 65-4.15 [o] [1] [vi]) as follows:

“The term any other professional health services, as used in section 5102 (a) (1) (iv) of the Insurance Law, this Part and approved endorsements, shall be limited to those services that are required or would be required to be licensed by the State of New York if performed within the State of New York. Such professional health services should be necessary for the treatment of the injuries sustained and within the lawful scope of the licensee’s practice. Charges for the services shall be covered pursuant to schedules promulgated under section 5108 of the Insurance Law and Part 68 of this Title (Regulation 83). The services need not be initiated through referral by a treating or practicing physician.”

For a service rendered to constitute a reimbursable health service, it must fall under one of the enumerated categories included as expenses insured pursuant to section 5102 (a) (1) (i), (ii) and (iii), or it must fall under the category of “(iv) any other professional health services” under Regulation 68. To be covered under this category, the service rendered must be a health service licensed under New York law and, when performed, such health service must fall within the lawful scope of the provider’s license. (See Insurance Law § 5102 [a] [1] [iv]; 11 NYCRR 65-4.15 [o] [1] [vi].) Ambulette services are authorized by the New York State Department of Transportation to “[t]ransit disabled persons.” (2003 Ops NY Dept Transp No. 9 [Jan. 16, 2003].) These services do not constitute covered expenses incurred pursuant to section 5102 (a) (1) (i), (ii) or (iii) or “any other professional health services” as defined in section 5102{**4 Misc 3d at 232} (a) (1) (iv) and Regulation 68. The only possible reimbursement for ambulette services would be for “other reasonable and necessary expenses,” up to $25 per day. (See Insurance Law § 5102 [a] [3].)

The defendant argues it is not even liable for the reduced $25 a day exception. It questions whether an ambulette company may receive payment directly from a no-fault insurer pursuant to an assignment of benefits. Prior to April 5, 2002, Regulation 68 permitted assignment to any “provider of services” making no distinction between providers based upon particular categories of reimbursable expenses. The revised Regulation 68 allows direct payments to be made only to “providers of health care services.” (See 11 NYCRR 65-3.11 [a].) Reasonable and necessary expenses are now nonreimbursable. There is no dispute that this claim arose in December of 2002, and the defendant is not a “provider of health care services.” Rather, plaintiff is a section 5102 (a) (1) (iv) other “health service,” which is not covered.

Accordingly, the plaintiff’s complaint is dismissed.

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 (A. Fisher Rubin, J.), entered February 25, 2003, denying their motion for partial summary judgment in the sum of $11,420.05.

Order unanimously affirmed without costs.

In or about June 2002, plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney’s fees, for health services provided
to their assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved
for partial summary judgment in the amount of $11,420.05, which was comprised of $8,144.25 worth of claims (consisting of 12 bills), $3,210.80 worth of claims (consisting
of 9 bills), and a $65 claim. Defendant opposed the motion and by order entered
February 25, 2003, the court below denied said motion.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the billing manager for “plaintiff.” 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, [*2]
Safir’s 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, March 18, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to 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 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 4, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for appellant. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

{**4 Misc 3d at 26} OPINION OF THE COURT

Memorandum.

Order modified by providing that the petition is granted insofar as it sought to vacate the arbitrator’s award and matter remanded for arbitration before a different arbitrator; as so modified, affirmed with $10 costs.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner Empire Insurance Company filed a demand for arbitration on June 25, 1998, seeking reimbursement of no-fault payments it made to its subrogor from October 1995 through November 1996. Arbitration Forums, Inc. denied the claim on the ground that the statute of limitations had expired. Petitioner commenced a special proceeding to vacate said award, and by order entered in April 1999, the court below granted the petition and remanded the matter for a new hearing. Following the hearing, Arbitration Forums, Inc. again denied the claim on the aforementioned statute of limitations ground. Petitioner then commenced a second special proceeding to vacate the arbitrator’s award, and by order entered in May 2000, the court below [*2]granted the petition and remanded the matter for a new hearing. After said hearing, Arbitration Forums, Inc. again denied the claim, by award dated July 9, 2002, on the aforementioned statute of limitations ground. Petitioner then commenced the instant third special proceeding to vacate the arbitrator’s award. By order entered in November 2002, the court denied the petition finding that it was not based on one of the limited grounds upon which such an award may be vacated pursuant to CPLR 7511 and that the arbitrator applied the correct statute of limitations (citing Nationwide Mut. Ins. Co. v Schwartz, 172 Misc 2d 503 [1997]). The court thereupon, sua sponte, vacated its May 2000 order.

In Matter of Motor Veh. Acc. Indem. Corp. {**4 Misc 3d at 27}v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996]), the Court of Appeals determined that stricter scrutiny is required, and the arbitrary and capricious standard is applicable, if arbitration is compulsory pursuant to a statutory mandate (id. at 223). To the extent that the Appellate Division, Fourth Department case, Matter of Allstate Ins. Co. (Clarendon Natl. Ins. Co.) (259 AD2d 971 [1999]), is inconsistent with the Court of Appeals holding in Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., it is not controlling. Furthermore, the court’s reliance on Nationwide is misplaced inasmuch as the court therein specifically stated that its decision was distinguishable from Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. which, like the case at bar, involved statutorily created obligations and rights, whereas Nationwide was in the nature of a common-law subrogation. Consequently, we find that the arbitrator’s award dismissing the claim as barred by the statute of limitations was not based on the evidence, and it was arbitrary and capricious for the arbitrator to dismiss the claim since petitioner timely made its demand for arbitration within three years of its first no-fault payment (see CPLR 214 [2]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 219-220, supra; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Matter of Allcity Ins. Co. v GEICO-Government Empls. Ins. Co., 2003 NY Slip Op 50898[U]).

Accordingly, the petition seeking to vacate the July 2002 arbitrator’s award is granted and the matter is remanded for arbitration before a different arbitrator.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Golia, J., concurs in the following memorandum: In this concurring opinion, I wish to address the conduct of the respondent, respondent’s counsel and Arbitration Forums, Inc. for persisting in their defiance of this court’s prior ruling concerning this identical issue which has been previously specifically addressed (see Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003]).

Counsel for respondent as well as respondent (and indeed Arbitration Forums, Inc.) were fully aware of the herein decisions of the Civil Court (both Ritholtz and Kerrigan, JJ.) when they argued before the arbitrator, for the third time, that the petition should be dismissed on statute of limitations grounds, after the above two Civil Court decisions found the direct opposite. (I do, however, note the lower court’s [Kerrigan, J.] decision erroneously reversed itself after the third petition.) Nonetheless, they further disregarded a decision of the Civil Court when they attempted to circumvent that court’s ruling by applying directly to the Supreme Court for an order confirming the finding of the arbitrator rather than appealing the order of the Civil Court if they believed it was incorrect.

The willful and contumacious conduct, and the arrogance to the extreme of those mentioned above, warrant sanctions. Unfortunately, the appellant failed to preserve for review by the Appellate Term the application for sanctions on the grounds of “{**4 Misc 3d at 28}forum shopping.” If that issue had been preserved, I would recommend the imposition of such sanctions. That the respondent continues to raise the issue of the statute of limitations as a defense and that Arbitration Forums continues to make such decisions, previously found to be arbitrary and capricious, needs to be addressed. In addition, I would recommend in the strongest terms possible that the petitioner’s bar seek sanctions as against Arbitration Forums, Inc. and any counsel, staff or otherwise, that persists in consciously disregarding court rulings and continue to dismiss inter-company no-fault arbitrations on statute of limitations grounds based upon the demand for arbitration being made more than three years from the date of the accident even though it was less than three years from the date of the first no-fault payment.

I do not countenance the Appellate Term’s decisions or the decisions of the Civil Court being willfully ignored by a private arbitration company or counsel who appear before such forums.

Pesce, P.J., and Rios, J., concur; Golia, J., concurs in a separate memorandum.

[*1]

Civil Court of the City of New York, Kings County, May 3, 2004

APPEARANCES OF COUNSEL

Teresa Spina, Woodbury (Kevin Barry of counsel), for defendant. Anatta Levinsky, P.C., Brooklyn, for plaintiff.

{**4 Misc 3d at 185} OPINION OF THE COURT

Ellen Gesmer, J.

{**4 Misc 3d at 186}Defendant has moved to dismiss plaintiff’s complaint pursuant to CPLR 3126 because plaintiff failed to appear at an examination before trial (EBT) scheduled by defendant. Defendant’s motion is granted unless the plaintiff appears for an EBT under the terms set forth below.

Procedural History and Facts

In this action, plaintiff is seeking payment of first-party no-fault benefits for medical equipment provided by it to Leonie Joiles, who assigned to plaintiff her rights to no-fault benefits from defendant, her insurer.^[FN*] The defendant timely denied payment, on the grounds of medical necessity, based on an independent medical peer review. [*2]

Plaintiff commenced this action on or about March 20, 2003. Simultaneously with the service of its answer on April 9, 2003, defendant served plaintiff with a demand for verified interrogatories and a notice to take deposition upon oral examination. The answers to the interrogatories were due 20 days later and the deposition was scheduled for June 18, 2003, more than 60 days later. At plaintiff’s request, defendant rescheduled the deposition to August 26, 2003. Plaintiff failed to appear.

Analysis

Although the CPLR permits a party to utilize both written interrogatories and oral depositions in pretrial discovery, a party should generally complete one form of discovery before invoking another (Giffords Oil Co. v Spinogatti, 96 AD2d 851 [2d Dept 1983]; Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Indeed, the Second Department has held that “the noticing of an oral deposition prior to reviewing the answers interposed to the interrogatories and without a determination of the necessity for further disclosure, verges on an abuse of the judicial system.” (Barouh Eaton Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874 [2d Dept 1980].) In this case, although the defendant noticed the deposition at the same time that it sent the demand for {**4 Misc 3d at 187}interrogatories, it did not take any action to enforce its request for a deposition until well after receiving the interrogatories. Moreover, in support of its motion, defendant’s counsel affirmatively asserts that “the examination before trial of plaintiff is necessary and material in order to defend this action properly,” thus meeting the standard set by the Second Department for using a second discovery device (Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized”]). Consequently, defendant has established a prima facie case that it is entitled to go forward with its deposition.

In opposition to defendant’s motion, plaintiff initially argues that it made a demand for verified interrogatories to which defendant did not respond. Plaintiff has failed, however, to show why defendant’s failure to respond to interrogatories would excuse its failure to attend a deposition or serve as a defense to a motion to compel. In any event, this argument is particularly weak because plaintiff’s deposition was scheduled for August 26, 2003, well before the responses to plaintiff’s demand for interrogatories were even due.

More substantially, plaintiff argues, relying on Ostia Med. v Government Empls. Ins. Co. (1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003]) and Zlatnick v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]), that defendant may not proceed with its deposition because it failed to advise plaintiff that its answers to defendant’s demand for verified interrogatories were “inadequate, incomplete or defective.” The court rejects this argument for several reasons.

First, unlike the plaintiff medical providers in Ostia and Zlatnick, the plaintiff in this case did not move for a protective order with regard to the deposition, pursuant to CPLR 3103, and still has not done so. While there is no absolute time limit for moving for a protective order, the [*3]court may imply a standard of reasonableness, especially where the time for the scheduled deposition has long passed (Philip v Monarch Knitting Mach. Corp., 169 AD2d 603 [1st Dept 1991]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). Plaintiff is in a particularly poor position to complain about being compelled to appear at the deposition since it took no action to object to the deposition either before it was scheduled or in the eight months since. While that would not prevent {**4 Misc 3d at 188}plaintiff from opposing this motion, it would certainly have been the better practice for plaintiff to move for a protective order rather than to just ignore defendant’s deposition notice.

Secondly, this court disagrees with the rulings in Ostia and Zlatnick that the burden is on the defendant insurance company to justify its need for a deposition. Indeed, that conclusion seems inconsistent with the holding in Ostia that a medical provider which brings an action in Civil Court to obtain no-fault benefits has the same discovery obligations under article 31 of the CPLR as any other litigant (Ostia, 2003 NY Slip Op 51560[U], *12; see also Albatros Med. v Government Empls. Ins. Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). As set forth above, the general rule is that if a litigant determines that the responses to interrogatories from the other side do “not adequately disclose all evidence material and necessary to the prosecution or defense of the action,” then it may utilize depositions or any other available remedy, without first seeking court permission (Katz v Posner, 23 AD2d at 775). If the other party moves for a protective order, it must then bear the burden of showing that the discovery sought is not necessary, consistent with the well-established principle that “the burden of demonstrating an immunity from discovery is on the party asserting the immunity.” (Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627, 628 [1st Dept 1984]; see also Koump v Smith, 25 NY2d 287, 294 [1969]; Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689, 690 [1st Dept 1993]; Jarvis v Jarvis, 141 Misc 2d 404, 406 [Sup Ct, NY County 1988].) The decisions in Ostia and Zlatnick improperly shift the burden to the party seeking discovery to justify a request for discovery, rather than imposing the burden on the party seeking to avoid discovery to show that the discovery sought is not necessary. In this case, plaintiff has certainly not met its burden of showing that the discovery sought is not proper.

Third, even if the court were to find that the burden is on defendant to show that the discovery is justified, it would find that defendant had met its burden. First, defendant has shown that it made a timely denial based on medical necessity, so defendant has preserved issues on which discovery is appropriate (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Ostia, 2003 NY Slip Op 51560[U], *11). Secondly, plaintiff’s responses to defendant’s interrogatories are insufficient on their face for at least two reasons. As an initial matter, the responses to {**4 Misc 3d at 189}the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney. Consequently, as formulated, the interrogatories do not subject plaintiff or its principals to cross-examination, as would properly verified interrogatories. Finally, plaintiff fails to set forth any responses to the interrogatories concerning the medical necessity of the equipment provided. Since that is the crux of the issue in this case, defendant is entitled to conduct a deposition of plaintiff to obtain the information. [*4]

Conclusion

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has disobeyed a court order is a matter within the discretion of the court (Jaffe v Hubbard, 299 AD2d 395, 396 [2d Dept 2002]). Although the court has rejected plaintiff’s arguments, the court finds that plaintiff presented a good faith argument for its failure to attend the scheduled deposition. Accordingly, the court holds that the correct remedy in this case is to permit plaintiff an opportunity to appear for a deposition, subject to the penalty of dismissal of plaintiff’s case if it fails to do so. The plaintiff shall appear for a deposition at a date, time and place to be agreed to between the parties, or, failing agreement, at 10:00 a.m. on June 14, 2004 at the courthouse located at 141 Livingston St., Brooklyn, New York. In the event that plaintiff does not appear for a deposition on the date agreed to by the parties or on the date set by the court, defendant may settle an order on notice, pursuant to 22 NYCRR 208.33, dismissing the action.

Footnotes

Footnote *: The complaint does not allege that Ms. Joiles was injured in a car accident, which is an essential element of a claim under the No-Fault Law (Insurance Law § 5103). Accordingly, the court could dismiss the complaint sua sponte for failure to state a cause of action. The complaint refers to an annexed claim for payment, which was not attached to the copy of the complaint submitted with the moving papers. The claim for payment may have provided the missing information, since the denial of the claim refers to Ms. Joiles as the “injured person” and refers to an accident on May 18, 2000. Accordingly, the court will not dismiss the complaint, but cautions counsel to include the necessary allegations in their complaints.

—[*1]

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered February 19, 2003. The order denied petitioner’s motion for a permanent stay of arbitration and respondent’s cross motion for summary judgment and ordered that the matter proceed to arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent sustained injuries in a single-car accident at 2:51 a.m. on March 31, 2000. A blood test at the hospital at 4:20 a.m. indicated that respondent had a blood alcohol content of .10%. Respondent was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and subsequently pleaded guilty to driving while ability impaired (§ 1192 [1]). Respondent applied for no-fault benefits under her motor vehicle insurance policy, but petitioner denied the claim on the ground that it fell within the intoxication exclusion of the policy. Respondent filed a demand for arbitration, contending that she was not intoxicated at the time of the accident, and petitioner in turn commenced this proceeding seeking a stay of arbitration. After Supreme Court granted petitioner’s order to show cause for a temporary stay, petitioner moved for a permanent stay of arbitration. Respondent cross-moved for summary judgment granting her no-fault benefits as a matter of law. The court denied the motion and cross motion and ordered that the matter proceed to arbitration, concluding that, while res judicata did not apply to bar arbitration, respondent raised an issue of fact whether she was actually intoxicated within the meaning of the policy.

We affirm, but for a different reason. We conclude that petitioner’s supporting affidavit fails to allege a sufficient basis upon which to grant a stay of arbitration (see CPLR 7503 [b]). There are only three threshold questions to be resolved by a court faced with a motion to stay arbitration: whether there is a valid agreement to arbitrate; if so, whether there was compliance with the agreement; and whether the claim would be time-barred if asserted in State court (see Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193, 201-202 [1995], rearg denied 85 NY2d 1033 [1995]; Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 6-7 [1980]). The insurance policy at issue here contains a broad agreement to arbitrate “any matter relating to the [*2]claim” and thus it is for the arbitrator to decide whether respondent was intoxicated and thus not entitled to no-fault benefits under the policy (see Matter of Cowper Co. [Hires-Turner Glass Co.], 72 AD2d 934 [1979], affd 51 NY2d 937 [1980]; see also Matter of Resnick v Serlin, 119 AD2d 825 [1986]). Further, the policy does not contain a condition precedent to arbitration and there is no dispute over a limitations period. Thus, we conclude that the parties agreed to arbitrate the instant dispute and that it is for the arbitrator to address the merits of the dispute (see State Farm Mut. Auto. Ins. Co. v Alfarone, 62 AD2d 1034, 1035 [1978]; see also CPLR 7501). Present—Green, J.P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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. Waltrous, J.), entered on April 22, 2003, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs instituted suit to recover first-party no-fault benefits for chiropractic services they provided to the injured assignor in the sum of $2,603.36. 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 three distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A,V.
Chiropractic P.C. have the same business address, Daniel Kim’s Acupuncture, P.C. has a different address. 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 (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), and thus the court correctly determined that plaintiffs failed to make out their prima facie entitlement to summary judgment.
Decision Date: April 27, 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 (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,925, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff, a medical supply house, commenced this action to recover first-party no-fault benefits for medical equipment furnished its assignor. Plaintiff subsequently moved for
summary judgment on its two claims: one for $795 (submitted January 31, 2001) and the other for $1,220 (submitted March 1, 2001).

After plaintiff established a prima facie case for summary judgment by establishing that it submitted complete proofs of claim and the amount of the loss (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to the $795 claim, defendant conceded that it failed to timely pay or deny the claim within 30 days of the date plaintiff alleged that it should have been in receipt of the mailed claim [*2]forms (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]), but argued only that it never received the proof of claim. Upon its failure to rebut the presumption of receipt that arose upon plaintiff’s proof of proper mailing (e.g Kihl v Pfeffer, 94 NY2d 118 [1999]), summary judgment should have been granted as to said claim.

With respect to the second claim for $1,220, defendant argued only that its denial was both timely and proper because the assignor failed to cooperate with its verification request in the form of an examination under oath (EUO), as permitted by the Insurance Regulations then in effect and
required by the terms of the insurance policy. However, at the time plaintiff’s claims were filed, EUOs were not available as a form of verification. The provision requiring the injured person to appear for an EUO was not in effect until April 5, 2002 (see 11 NYCRR 65-3.5 [e]). The relevant Insurance Regulation in effect at the time of the plaintiff’s submission of the claims required the injured person to submit to an independent medical examination (IME), but contained no specific reference to an EUO (see 11 NYCRR 65.12). Since there was no provision authorizing such a procedure, defendant’s request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim. Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault endorsement, an “internally complete and . . . distinct part of the insurance policy, . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; see also A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

In light of the foregoing, plaintiff would normally be entitled to the granting of its motion for summary judgment in its entirety. It is noted, however, that the documents which plaintiff included as proof in support of its motion for summary judgment revealed that the medical
equipment prescribed for plaintiff’s assignor did not include the TENS belt ($90) which was listed in plaintiff’s claim as well as in the receipt of items delivered to plaintiff’s assignor. While defenses based on defects in the proof of claim are generally precluded if not timely asserted, plaintiff, having introduced an issue of fact which, if true, amounts to a complete defense to a portion of the claim, should be estopped from invoking the preclusion rules to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Accordingly, the compensation awarded to plaintiff should be reduced by the amount billed for the unprescribed item.

Thus, plaintiff’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $1,925. The matter is accordingly remanded to the court below for a calculation of the statutory interest on $1,925, that portion of the claim for which summary judgment is granted, an assessment of attorney’s fees due on $1,925 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County

(A. Agate, J.), entered January 31, 2003, granting plaintiff’s motion for summary judgment in the principal sum of $1,472, and denying its motion for summary
judgment dismissing the complaint.

Order unanimously modified by denying plaintiff’s motion for summary judgment and granting defendant’s motion to the extent of awarding it partial
summary judgment dismissing plaintiff’s $120 claim; as so modified, affirmed without costs.

In or about June 2002, plaintiff commenced this action to recover first- party no-fault benefits for medical equipment it provided to its assignor pursuant to
Insurance Law § 5101 et seq., as well as statutory interest and attorney’s fees.
Thereafter, plaintiff moved for summary judgment on its $586 and $886.50 claims. Defendant opposed the motion and moved for summary judgment dismissing the complaint. By order entered January 31, 2003, the court below granted plaintiff’s motion for the amount demanded in the complaint ($1,472 rather than $1,472.50)
and denied defendant’s motion.

A review of the record indicates that plaintiff established its prima
facie entitlement to summary judgment on its $586 claim, as well as $766.50 of its $886.50 claim, by showing that it submitted complete proofs of claims which
defendant did not pay or deny 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]). We find [*2]that inasmuch as neither plaintiff’s medical reports nor its
prescriptions mention a “TENS accessory kit,” for which plaintiff seeks $120, plaintiff failed to submit a properly completed claim form therefor and did not establish its
prima facie entitlement to summary judgment for $120. The burden then shifted to defendant to demonstrate a triable issue of fact with respect to the $586 claim and
the $766.50 sum (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The record indicates that defendant denied both claims based on the
assignor’s failure to appear at medical examinations. Inasmuch as the assignor
never appeared for an examination, we find that defendant raised a triable issue of fact as to said claims (see Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388 [2003]; cf. Park Health Ctr. v Liberty Mut. Ins. Co., 191 Misc 2d 91, 92-93 [2001]). We note that although the denial for the $886.50 claim indicates that it was denied due to plaintiff’s failure to make said claim within 180 days of the rendered services (see 11 NYCRR 65.11 [m] [3]), neither plaintiff’s nor defendant’s motion papers addressed this issue in the court below, and defendant has not raised this issue in its appellate brief. Consequently, said issue is deemed abandoned and will not be considered by this court (see Baliva v State Farm Mut. Auto Ins. Co., 286 AD2d 953 [2001]).

A review of the record further indicates that defendant failed to establish its entitlement to summary judgment dismissing the complaint in its entirety on the ground that the assignor failed to appear for medical examinations (Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388, supra). However, inasmuch as plaintiff did not submit a properly completed claim form for the TENS accessory kit, it did not establish its prima facie entitlement thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 2d & 11th Jud Dists], supra), and defendant is not required to pay said
claim (see Insurance Law § 5101 et seq.; 11 NYCRR 65.15 [g]). Consequently, that part of defendant’s motion seeking dismissal of the $120 claim for the TENS accessory kit is granted. Defendant’s remaining contentions lack merit.
Decision Date: April 14, 2004

[*1]

Civil Court of the City of New York, Queens County, April 12, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz P.C., White Plains (James G. Eberz of counsel), for defendant. Baker & Barshay, LLP, Hauppauge (Gil McLean of counsel), for plaintiff.

{**3 Misc 3d at 926} OPINION OF THE COURT

Charles J. Markey, J.

The principal issue in defendant Republic Western Insurance Company’s motion to reargue—incorrectly labeled a motion to renew—is the propriety of this court, in its prior decision of July 7, 2003 (reported electronically at 2003 NY Slip Op 51070[U] [2003]), in employing information made available on a state governmental Web site and examining and using admissions, statements made by both Republic and its sibling corporation, U-Haul, on their Internet Web sites. This motion to reargue appears to be the first in the nation to challenge a court’s use of the Internet to deflate the sails of a party’s arguments.

In the prior opinion, this court, addressing an issue of then first impression in this state, rejected a motion by Republic to dismiss for lack of subject matter jurisdiction, pursuant to New York Civil Court Act § 404, or to dismiss for forum non conveniens. The plaintiff health care provider, N.Y.C. Medical and Neurodiagnostic, P.C., is the assignee of no-fault first-party benefits. The vehicle that was involved in the accident causing injury was owned by U-Haul International, Inc., famous for its rental of vehicles, and was leased or rented from a U-Haul facility in the City of New York, and was insured by defendant Republic. The basis of Republic’s prior motion to dismiss was that its underwriting of all U-Haul vehicles was done in the State of Arizona, it is incorporated in the State of Arizona, and that the sole office out of which it conducts business in the State of New York is located in the Town of Purchase, in the County of Westchester.{**3 Misc 3d at 927} According to Republic’s logic and prior arguments, the facts that the U-Haul vehicle was rented in New York City, the U-Haul vehicle was insured by Republic, the accident occurred in New York City, the persons involved in the accident reside in New York City, and the health care provider from which the assignor sought treatment—under a state-[*2]controlled system of no-fault benefits—is located in Queens County, in New York City, are all entitled to no weight.

According to Republic, the only places where the plaintiff health care provider could litigate the issue of reimbursement against insurer Republic would be in either Westchester County or the State of Arizona. Since this court does not agree that the tail wags the dog, under the proverbial adage, it rejected totally Republic’s motion to dismiss. This court’s seminal decision on the issue on whether the Civil Court of the City of New York has jurisdiction will soon be argued before the Appellate Term, Second and Eleventh Judicial Districts (case No. 2003-1472).

As an initial matter, counsel for Republic moves to renew this court’s prior decision. The fact that James G. Eberz, Esq., a partner of the firm representing Republic, calls this motion one to renew is not dispositive (see, Alpert v Wolf, 194 Misc 2d 126, 133 [Civ Ct, NY County 2002]). A trial court has an obligation to appellate justices to correct any mislabeling of a motion, so as not to add to the burdens of the reviewing justices. Fundamental differences exist between a motion to reargue and one to renew. The motion to reargue simply states that the court overlooked or misapprehended the facts or the law. The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the court originally (see discussion in Alpert v Wolf, 194 Misc 2d at 133; D. Siegel, NY Prac § 254 [3d ed 1999]). Republic, however, fails to set forth any new facts and simply rehashes its old and rejected arguments. This court doubts that Mr. Eberz and his law firm are ignorant of the distinctions, since the denial of a motion to renew is appealable, whereas the denial of a motion to reargue is not appealable (see, Pizarro v Evergreen Estates Hous., 5 AD3d 143 [1st Dept 2004]; Ruddock v Boland Rentals, 5 AD3d 368 [2d Dept 2004]).^{[FN1]{**3 Misc 3d at 928}}

The present motion to reargue, as it ought to have been denominated, assails this court, for two reasons. First, Republic’s motion states that the court should not have looked for the information posted on the Web site of the Department of Insurance of the State of New York (, cited in the prior opinion, 2004 NY Slip Op 51070[U], *6), disclosing that it is authorized to engage in the business of insurance in the State of New York. Second, Republic’s counsel contends that this court erred in searching the Web sites of Republic and its sibling corporation, [*3]U-Haul.

Turning first to the contention that this court’s use of a state governmental Web site was improper, the examples of court decisions making similar citations are legion. In Efam Enters. v Travelers Indem. Co. of Am. (2002 WL 1148830, 2002 US Dist LEXIS 10046 [SD NY, May 29, 2002]), for example, the federal court referred to both the Web sites of the New York State and Connecticut Departments of Insurance to verify the defendant insurer’s identity and corporate status (accord, United States Postal Serv. v Flamingo Indus. [USA], Ltd., 540 US —, —, 124 S Ct 1321, 1329 [2004] [unanimous Supreme Court referred to revenue and business of the United States Postal Service, as detailed on its Web site]; Verizon Communications Inc. v Law Offices of Curtis V. Trinko, LLP, 540 US —, —, 124 S Ct 872, 877 [2004] [referring to consent decree on Web site of the Federal Communications Commission]; Doe v Merten, 219 FRD 387, 396 n 28 [ED Va 2004] [citing statistics on a Web site compiled by the Bureau of Citizenship and Immigration Services of the United States Department of Homeland Security]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 234 n 1, 238 n 7 [2001] [citing homicide statistics maintained by governmental agencies and explanation of tracing a gun’s ownership from the Web site of the Bureau of Alcohol, Tobacco and Firearms]).

Legislative bodies, courts, governmental agencies, and public entities have commendably made information available on {**3 Misc 3d at 929}Web sites that have dramatically facilitated the quick location of information. Just as computerized research of Westlaw and LEXIS have made resort to more time-consuming conventional research secondary, factual information and data that, in the past, would have taken days and hours to retrieve, are now available in a matter of seconds. Technological breakthroughs, including the immediate scanning of important documents and the tapping of a few strokes on a computer keyboard, speed fact-finding, ensure that documents will not be lost, misplaced, or stolen, and are highly reliable. For a researcher not to employ information placed on a governmental Web site, by a civil servant, for the benefit of the public would, indeed, be negligent and ridiculous. For a judge to ignore these new technological changes, made available by government and encouraged by court systems, would be to blind oneself.

Mr. Eberz, however, suggests that the references on the Web site posted by the Superintendent of Insurance of the State of New York may be incorrect in that Republic is not “licensed” to do business in the State of New York, but only “admitted” to do so. Mr. Eberz does not spell out the distinction or any pragmatic difference between the two terms.

First, Mr. Eberz’s attorney’s affirmation would be insufficient, as a matter of law, to spell out the difference between the two terms, assuming arguendo that there is one. At any rate, Republic is authorized, whether “admitted” or “licensed,” to do insurance business in New York (see, Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County, Nov. 19, 2003], and subsequent order, Index No. 50078/2003, Jan. 6, 2004). The records of the Superintendent of Insurance of the State of New York, posted on a governmental Web site and available to not only the undersigned, but also anyone else with access to the Internet, demonstrate that Republic is authorized to engage in the business of insurance in the State of New York.

The defendant’s argument regarding this court’s use of Republic’s Web site and that of U-Haul, its sibling company, fares no better. Republic’s argument is that this court, using the Web [*4]sites of U-Haul and Republic, found that U-Haul has numerous facilities in each of the five boroughs of the City of New York and that each of those U-Haul vehicles is insured by Republic.

The term “www” stands for the “world wide web” (see, Hill & Assoc. v Compuserve, Inc., 2003 WL 22327827, 2003 US Dist {**3 Misc 3d at 930}LEXIS 18187 [SD Ind, Sept. 26, 2003]). The statements placed on the Web sites of Republic and U-Haul were made, not by this court or some bystander, but by Republic and U-Haul and operate as admissions (see, Intel Corp. v Hamidi, 30 Cal 4th 1342, 1353, 71 P3d 296, 304 [2003] [statement posted on company’s Web site operated as an admission against it]). Second, by the very definition of “the world wide web,” the postings made by Republic and U-Haul were not simply targeted to a select few, to be privately guarded, but were electronically made available for everyone on the face of the earth with access to a computer to see.

Third, this court did not undertake its own personal investigation. Neither the undersigned nor any of its representatives or agents went to a U-Haul facility to take an application for a rental car or inquire about insurance for such a vehicle. This court, moreover, did not undertake its own poll or even send law clerks to the reading room of the main branch of the New York Public Library on Fifth Avenue to dig for statistics, articles, news accounts, or information written by a third party in a remote treatise. The facts secured by this court, furthermore, were not derived by framing term requests on any of the modern, popular search engines—such as Google, MSN Search, Yahoo Search, or Ask Jeeves—and, based on the information derived therefrom, used to fashion a factual argument to sandbag counsel.

Rather, the court, on its own initiative, explored the Web site of a party to this litigation and that of its sibling corporation. The statements made by Republic on its Internet site (www.repwest.com) were made by Republic itself, and, similarly, the statements made by U-Haul on its Web site (www.uhaul.com) were made by U-Haul itself. Republic’s counsel does not even challenge their accuracy. The research of and citation to a publicly posted Web site of a party to this litigation and that of its sibling corporation are proper. Moreover, those publicly available Web site statements merely reiterated what counsel for those two companies have already advised the Appellate Division in Matter of Wausau Ins. Co. v Ogochukwu (295 AD2d 280 [1st Dept 2002]) that Republic insures all U-Haul vehicles.

Republic’s reliance on the case of Central Hanover Bank & Trust Co. v Eisner (276 NY 121 [1937]) is misplaced. In that case, the lower court, disagreeing with the report of the special referee regarding the valuation of a parcel of property, made its own {**3 Misc 3d at 931}viewing of the real estate and noted facts that were not alluded to in the testimony and not directly having to do with the property in question. That type of personal investigation is a far cry from the facts of the instant case, where Republic and its sibling company, U-Haul, have made world wide declarations, on their Web sites, that Republic insures every vehicle rented and leased by U-Haul in the United States.

Fourth, this court’s research, framing a request of ” ‘world wide web’ or ‘www.!’ ” on Westlaw, as of April 12, 2004, resulted in 98 published judicial opinions in reported New York State cases (the NY-CS database) referring to a Web site, 38 such opinions by the Supreme Court of the United States (the SCT database), 1,314 officially reported opinions by all state courts (the allstates database) making such references, and a number of judicial opinions far too vast for Westlaw to retrieve in the databases of all federal courts (allfeds) and the New [*5]York Law Journal. Of the cases found by the framed search terms, this court has not reviewed each of them and, therefore, does not warrant that it involves a citation to an Internet Web site invoked by a court, on its own initiative. A perusal of some of the great number of cases, however, indicates that federal and state courts, throughout the country, readily and without apology, will refer to a Web site whenever necessary or helpful to make a point.

The United States Supreme Court, in Reno v American Civ. Liberties Union (521 US 844, 853 [1997]), discussing the importance of the Web, stated: “From the publisher’s point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers” (id. at 853, quoted by the Court of Appeals with approval in Firth v State of New York, 98 NY2d 365, 370 [2002]; see, e.g., Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 342 [1999] [Court of Appeals referred to a study published on a Web site when discussing the cash value of life insurance policies]).

The Supreme Court’s observation about the Internet’s power and scope is not lost on Republic and U-Haul, companies that smartly employ a Web site in order to drum up business. Corporations want their Web sites to be read, not ignored, and, indeed, are constantly devising ways for search engines to catapult their Web sites to the top of a search request. Republic and U-Haul posted the information on their Web sites, hoping to attract the attention of literally millions of persons spanning the {**3 Misc 3d at 932}globe “for an indefinite period of time” (Firth v State, 98 NY2d at 370). If U-Haul were, indeed, so private about the information contained on its Web site, it would not have emblazoned its Web address so prominently on each of its seemingly ubiquitous vehicles.

Fifth, this court notes that the research on the Web sites was done not on some private personal computer, but on Internet access provided by the Office of Court Administration to the undersigned and every other judge of this state, reflecting a policy that courts utilize emerging technology in dispensing justice.

Finally, the implication of Republic’s argument, that the court was acting as plaintiff’s advocate in constructing an argument, has no merit. In the prior opinion (2003 NY Slip Op 51070[U], *3), marking the seminal decision rejecting Republic’s contention that it did not transact business in the City of New York, this court expressed its dissatisfaction with the initial presentations of both parties to this litigation and directed further submissions. This court then discussed some of the supplemental information supplied by both counsel (at *3-4). This court’s references to the U-Haul and Republic Web sites were thus not the sole foundation for its decision and order.

Trying to minimize its nexus with U-Haul, Republic contends, in its motion to reargue, that there is really no connection, and the fact that there are two sibling companies under one umbrella, “mega corporation,” Amerco, should have no weight. The comparison by Republic’s counsel of the relation of U-Haul and Republic to the sibling companies of other “mega corporations” (citing Cendant and Altria) is unavailing, because the examples of other sibling companies cited in Republic’s papers truly are independent and do not depend on the other’s existence.

In the present case, in stark comparison, it is incontestable that U-Haul would not be able to operate business in the City of New York and the State of New York unless each of its [*6]vehicles had the minimum insurance required by law (Vehicle and Traffic Law § 370 [3]). Each of the U-Haul vehicles could not be rented, would remain idle in the many U-Haul rental facilities located in the City of New York, and would not be permitted to exit their gates onto the thoroughfares of this City, unless it was insured.

In ELRAC, Inc. v Ward (96 NY2d 58 [2001]), a unanimous Court of Appeals explained that, pursuant to Vehicle and Traffic Law {**3 Misc 3d at 933}§ 388, the owner of a motor vehicle may be held civilly liable for any damage caused by the permissive user of the vehicle (96 NY2d at 72-73). Turning to the issue before it in ELRAC, the Court of Appeals continued that Vehicle and Traffic Law § 370 barred a rental or leasing company from pursuing an action for indemnification from its renters for amounts up to the minimum liability requirements (id. at 73). Section 370 (3) requires rental agencies to obtain a minimum amount of insurance for its vehicles (Vehicle and Traffic Law § 370 [3]).

Chief Judge Kaye, speaking for the entire Court in ELRAC, stated:

“The language of section 370 is plain and precise. Common carriers, including rental car companies, are required to obtain insurance for their vehicles . . . Furthermore, the policy must ‘inure to the benefit‘ of any permissive user of the vehicle (Vehicle and Traffic Law § 370 [1] [b] [emphasis added]). A renter is, of course, a permissive user. Thus, section 370 clearly requires the rental company to provide the renter with this minimum level of coverage.” (96 NY2d at 73; accord, Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004], supra [Second Department affirmed determination that defendant vehicle rental company “as a ‘corporation engaged in the business of renting or leasing rental vehicles to be operated upon the public highways,’ ” quoting Vehicle and Traffic Law § 370 (3), must provide primary insurance to permissive users of its vehicles].)

The insurance demanded by Vehicle and Traffic Law § 370 (3) and § 388, in the present case, is supplied by Republic, U-Haul’s sibling company, thereby enabling U-Haul to collect substantial revenues from New York City customers and to maintain the many U-Haul rental facilities that operate in this City. Without the insurance furnished by Republic, its sibling company, U-Haul could take out all the Yellow Pages advertisements it likes, but it legally could not rent a single car in the State of New York. Republic’s counsel does not seem to challenge that fact. It is surreal for Republic to pretend that the World Wide Web does not exist, U-Haul can rent vehicles without insurance, and that the ties between Republic and U-Haul are nebulous.

Every single U-Haul vehicle rented by it in the United States is insured by Republic. Indeed, as stated above, in front of a panel of Justices of the Appellate Division, First Department,{**3 Misc 3d at 934} when there was confusion as to the insurer of the U-Haul vehicle, the attorneys for U-Haul and Republic advised the Court that all U-Haul vehicles are insured by defendant Republic (Matter of Wausau Ins. Co. v Ogochukwu, 295 AD2d 280 [2002], supra).

The entire policy behind the New York Legislature’s scheme for providing no-fault first-party benefits, the prompt payment or speedy disposition of such claims, would crumble if health [*7]care professionals were forced to run from all parts of this state to Westchester County or to travel to Arizona to litigate their right to reimbursement (see discussion of the hypothetical examples posited in the prior opinion, 2003 NY Slip Op 51070[U], *9; see generally, Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d Dept, Dec. 24, 2003] [“to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims”]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept, Dec. 24, 2003]; Zlatnick v Government Empls. Ins. Co., 2 Misc 3d 347 [Civ Ct, Queens County 2003] [regarding the general undermining of the policy of the no-fault laws]).

As stated at the outset of this opinion, the tail does not wag the dog, and this court also rejects the alternative argument of Republic’s counsel, on this motion to reargue, that a special exception should be carved for this self-styled “relatively small out of state carrier” (Eberz affirmation ¶ 9).

Republic’s motion to dismiss strikes at the heart of the Court of Appeals ELRAC decision (96 NY2d 58, 72-74 [2001], supra). Defendant Republic collects revenue by insuring the vehicles of its sibling corporation, U-Haul, in the City of New York, but, when an accident occurs, shirks its responsibilities under the no-fault scheme, and, indeed, frustrates and undermines the purpose of the no-fault laws, by trying to making it difficult for a health care provider to collect reimbursement for its services.

When Republic’s insurance makes it possible for U-Haul vehicles to be rented in all five boroughs of the City of New York and to circulate on the City’s highways and streets, and in its traffic, it does not matter whether the policy of insurance was written in Arizona, Alabama, or Alaska or whether Republic’s office in this state is located in Purchase, Plattsburgh, or Parkchester.

Republic has filed numerous similar motions to dismiss for lack of jurisdiction in the courts of inferior jurisdiction. As seen in {**3 Misc 3d at 935}some unreported opinions that preceded this court’s prior opinion, Republic’s arguments have convinced other courts to grant its motion to dismiss (see, e.g., PLP Acupuncture v Republic W. Ins. Co., Nassau Dist Ct, Feb. 25, 2003, Index No. 24863/2002 [no indication provided by plaintiff’s counsel what connection the case had to Nassau County]; Viva Massage Therapy v Republic W. Ins. Co., Civ Ct, Queens County, Feb. 25, 2003, Index No. 84410/2002 [motion to dismiss granted on default]; Ostia Med. v Republic W. Ins. Co., Civ Ct, Queens County, May 20, 2003, Index No. 66847/2002 [lamenting that plaintiff had not presented any evidence and had it done so “this Court may have rendered a different decision”]).

This court notes that, following the reporting of its prior opinion electronically in Westlaw and LEXIS and in print by the New York Law Journal, several courts, citing the decision, agreed with this court’s reasoning and began denying the same motion to dismiss by Republic (see, e.g., Heritage Med. Servs. v Republic W. Ins. Co., NYLJ, Mar. 9, 2004, at 19, col 1 [Civ Ct, Kings County]; Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U], supra; West Tremont Med. Diagnostics v Republic W. Ins. Co., Civ Ct, Bronx County, Aug. 29, 2003, Index No. 72381/2002).

In the opinion of the undersigned, adoption of Republic’s arguments would result in the dessication and evisceration of the no-fault scheme. Only the Appellate Term’s forthcoming [*8]review of the issue will permit a dispositive holding to avoid the inconsistent results now being reached.

Republic’s arguments about this court’s citations to Republic’s and U-Haul’s admissions made on the World Wide Web are vacuous. The story goes that Abraham Lincoln once asked a crowd how many legs a sheep would have if we called its tail a leg. When the crowd yelled back, “Five,” Lincoln shot back, answering his own question, “No, four, because calling a tail a leg doesn’t make it one.” Similarly, Republic’s repeated claims of lack of jurisdiction for its insurance of a U-Haul vehicle rented in New York City ought to fall on deaf ears.

Footnotes

Footnote *: Another possible reason why Republic sought renewal, instead of reargument, is that its counsel may have believed that a motion to reargue would be untimely, since the date of its motion to renew is August 28, 2003, well past 30 days following the date of service of the notice of entry on July 10, 2003 (see, CPLR 5513). Plaintiff’s counsel, however, in serving the notice of entry, failed to append a copy of the order bearing the clerk’s stamped date of entry of July 8, 2003, and, in the accompanying notice, incorrectly identified the date of entry as July 7 (which was only the date that the decision and order was signed). The notice of entry that was served upon Republic’s counsel thus was a nullity (see, Baranello v Westchester Sq. Med. Ctr., 282 AD2d 259 [1st Dept 2001]), and this motion to reargue is thus timely (see, CPLR 5513). Even if untimely, a court, under the provident exercise of its discretion, may entertain an untimely motion to reargue (see, e.g., Garcia v Jesuits of Fordham, 6 AD3d 163 [1st Dept 2004]).