[*1]

Supreme Court, Appellate Term, Second Department, December 24, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

{**3 Misc 3d at 9} OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $10,635.26, 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 therein; as so modified, affirmed without costs.

Plaintiffs commenced this action to recover $10,805.26 in assigned first-party no-fault benefits, plus interest and attorney’s fees, pursuant to Insurance Law § 5101 for medical services rendered to their assignor for injuries she sustained in a motor vehicle accident. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion which was denied by order of the court below entered September 26, 2002.

A review of the record indicates that with the exception of one of two $170 claims filed on behalf of Daniel Kim’s Acupuncture P.C., plaintiffs established their entitlement to summary judgment for the recovery of no-fault benefits prima facie by proof that they submitted to defendant the completed claim form (Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2003 NY Slip Op 51700[U] [decided herewith]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]; accord S & M Supply v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists]; see Dermatossian v New York City Tr. Auth., 67 NY2d [*2]219, 225 [1986]). The burden then shifted to defendant to demonstrate a triable issue whether plaintiffs are entitled to all or any portion of the benefits sought (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

While we agree that the preclusion rule does not apply to a defense based on a claim that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]), defendant’s sole proof of the matter, in the form of an affidavit of its investigator, failed to raise a triable issue of fraud. Here, the report, which was unsworn, alleged, essentially, only that the “uncooperative”{**3 Misc 3d at 10} insured (but not the assignor) had been involved in prior accidents alleged to be “suspicious,” and as to the assignor, recommended merely that the payment of benefits be deferred pending further investigation. Such unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of the assignor’s fraud, and partial summary judgment should have been granted as to the properly proven claims (see Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]). However, the court properly denied summary judgment as to one claim for $170, proof of which was omitted from the motion papers.

We note, finally, that while plaintiff concededly failed to respond to defendant’s several requests for verification in the form of an examination of the assignor under oath, not only did defendant fail to prove that the requests were timely (11 NYCRR 65-3.5 [a]), but such requests would not have tolled the 30-day claim determination period because at the time plaintiffs filed the instant claims there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.12 [d], with 11 NYCRR 65-3.5 [e] [eff Apr. 5, 2002]; A.B. Med. Servs. v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Bronx Med. Servs. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022[U] [App Term, 1st Dept]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $10,635.26, the portion of the claims for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]) and for all further proceedings on the remaining claim.

Doyle, P.J., Winick and Skelos, JJ., concur.

[*1]

Civil Court of the City of New York, Queens County, December 23, 2003

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Marina O’Leary of counsel), for defendant. Glinkenhouse, Floumanhaft & Queen, Cedarhurst (Philip S. Floumanhaft of counsel), for plaintiff.

{**3 Misc 3d at 181} OPINION OF THE COURT

Charles J. Markey, J.

The legal issue of first impression raised by this case is whether a plaintiff-assignee medical equipment supplier can recover no-fault first-party benefits where the prescription for such supplies was written by a chiropractor, and not a physician.{**3 Misc 3d at 182}

On May 16, 1999, Velez was injured in an automobile accident.^[FN1] The next day, Velez consulted with Kenneth Pieratti, Doctor of Chiropractic, of Monument Chiropractic, P.C. Dr. Pieratti prescribed a thermophore (heat treatment to alleviate pain and spasms), a lumbar support (to alleviate pain and prevent compression on nerve roots), a cervical pillow (for proper positioning), a massager (for mechanical massage), a transcutaneous electro-nerve stimulator (TENS) unit (to prevent the transmission of pain nerve impulses), ordered with four leads for larger area stimulation, conductive garment (needed for TENS delivery for larger area stimulation), solid seat insert (for better positioning of the lumbar area), and an ice cap or collar (to alleviate swelling). The chiropractor completed a[*2]“Physician Statement of Medical Necessity” and signed a separate “Letter of Medical Necessity.”

Defendant GEICO General Insurance Company moves for summary judgment to dismiss the complaint, arguing that plaintiff-assignee ABC Medical Management, Inc. cannot maintain this action to recover no-fault first-party benefits for various items of equipment it furnished to its assignor Narmy Velez, since the prescription for such supplies was written by a chiropractor, and not a physician.

First, as an initial matter, although defense counsel states that she has attached copies of the pleadings, a review of the pertinent exhibit shows that only the answer is attached. CPLR 3212 (b) states that a copy of the pleadings must be attached as a prerequisite to a proper summary judgment motion. The cases in each department of the Appellate Division state that the failure to attach all the pleadings is sufficient grounds for denying the summary judgment motion, permitting leave to renew it (see, Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; Gallagher v TDS Telecom, 280 AD2d 991 [4th Dept 2001]; A & L Scientific Corp. v Latmore, 265 AD2d 355 [2d Dept 1999]; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]; accord Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 [1st Dept 2000]).

Although the foregoing authorities would be sufficient to deny GEICO’s motion, this court would be obliged to grant leave to renew {**3 Misc 3d at 183}which would only further congest the huge daily Special Term calendars, clogged by motions involving no-fault first-party benefits (see discussion in Zlatnick v GEICO, 2 Misc 3d 347 [Civ Ct, Queens County 2003]; Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352 [Civ Ct, Queens County 2003]). Rather than burden a colleague judge, for the sake of judicial economy, the court will address the heart of the defendant’s motion.

The substance of GEICO’s summary judgment motion is the defense contention that Education Law § 6551 prohibits a chiropractor from prescribing the aforementioned medical supplies and equipment. Education Law § 6551 (3), in pertinent part, states: “A license to practice chiropractic shall not permit the holder thereof . . . to prescribe, administer, dispense or use in his practice drugs or medicines . . . or to utilize electrical devices except those devices approved by the board as being appropriate to the practice of chiropractic.”

First, for purposes of this motion, the court will assume arguendo that section 6551 can be used by insurers to defeat recovery in a no-fault case—although the legal issue is not entirely free of doubt, has not been raised by counsel, and is not decided herein (see, State Farm Mut. Auto. Ins. Co. v Mallela, 2002 WL 31946762, *4, 2002 US Dist LEXIS 25187, *16-18 [ED NY 2002, Sifton, J.] [rejecting insurer’s view that a provision of New York’s Business Corporation Law intended to create a right to deny payment of no-fault benefit fees]; Matter of Pugliese v Hamburg, 223 AD2d 383 [1st Dept 1996]).

In King’s Med. Supply v Travelers Prop. Cas. Corp. (194 Misc 2d 667 [Civ Ct, Kings County 2003]), a thoughtful and seminal opinion discussing the prima facie burden of a medical supplier seeking to recover no-fault first-party benefits, the equipment at [*3]issue was virtually identical to that litigated herein. In King’s Med., the insurer simply contested the cost of a cervical pillow, lumbosacral support, thermophore, lumbar cushion, a 4-lead TENS, a cold pack, whirlpool, TENS unit, and a TENS belt (id. at 667-670). The court there observed: “[T]here is nothing unique about this equipment” (id. at 672).

This court’s independent legal research discloses that GEICO’s argument has been advanced by insurers and rejected, in principal part, by courts of other jurisdictions. In Haezebrouck v State Farm Mut. Auto. Ins. Co. (216 Ga App 809, 455 SE2d 842 [1995]), the appellate court reversed, in part, the lower court and held that a chiropractor could properly prescribe a TENS unit, {**3 Misc 3d at 184}a Lossing back and neck traction unit, a cervical collar, a cervical pillow, and knee support (216 Ga App at 810, 455 SE2d at 844). The court there noted that a statutory change permitted chiropractors to utilize hot and cold packs (id.; see also, SAIF Corp. v Ross, 191 Or App 212, 216, 82 P3d 1035, 1036 [2003] [approving chiropractor’s use of modalities of ice and warm compress]).

In Hofmann v Auto Club Ins. Assn. (211 Mich App 55, 535 NW2d 529 [1995], lv denied 452 Mich 870, 552 NW2d 170 [1996], reconsideration denied 452 Mich 870, 554 NW2d 313 [1996]), the court held that chiropractors were authorized to utilize cervical collars (to support and immobilize the spine), cervical pillows (to rehabilitate ligaments and musculature of the cervical spine), lumbar belts (to relieve the strain on the lumbar muscles and spine), and lumbar supports (to restore the normal curvature of the lumbar spine) (211 Mich App at 76-79, 535 NW2d at 541-542). The court in Hofmann, however, held that heat and cold were not included within the scope of chiropractic practice.

Cases in New York suggest that chiropractors may utilize thermophore and heat or cold therapy (see, Introna v Allstate Ins. Co., 850 F Supp 161, 165 [ED NY 1993] [“application of hot/cold packs . . . are neither ‘unusual’ nor ‘unique’ chiropractic services”]; see, e.g., Jimenez v Supermarket Serv. Corp., 2002 WL 662135, 2002 US Dist LEXIS 7029 [SD NY 2002]; Stanton v Hexam Gardens Constr. Co., 144 AD2d 132, 133 [3d Dept 1988]; see also, Everett v State Farm Indem. Co., 358 NJ Super 400, 402, 818 A2d 372, 373 [2002] [per curiam] [chiropractor may properly prescribe and recover “for a thermophore electric pad, commonly referred to as a heating pad, to relieve” strains and sprains], affd substantially on op below 175 NJ 567, 818 A2d 319 [2003] [per curiam] [5-2 decision]; see generally, King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d at 668, 672 [although not stating who prescribed the thermophore and other supplies, such equipment was not unique]).

This court holds that a chiropractor may prescribe TENS units, thermophore devices, cervical collars, cervical pillows, lumbar supports, massagers, ice packs, and similar supplies and equipment and that they do not constitute “drugs or medicines” within the meaning of the Education Law.

Further buttressing this court’s conclusion, although not cited by the parties, is the language of 11 NYCRR part 68, Appendix 17-C, part E (b) (1), stating: “For medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician{**3 Misc 3d at 185} or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.”

First, the above section provides essentially a fee schedule for equipment given by a physician or a medical equipment supplier. The plaintiff here, ABC, is a medical equipment supplier, and it provided the supplies to its assignor Velez. Dr. Pieratti, the chiropractor, did not furnish the supplies, and it is not the chiropractor who is seeking recovery for the supplies. Nothing in the foregoing regulation prohibits a chiropractor from prescribing the aforementioned supplies, to be dispensed by either a physician or a medical equipment supplier.

More important, the above-quoted provision of part E specifically lists “TENS units [and] soft cervical collars” as typical examples, denoted by the “e.g.” reference, of medical equipment and supplies.

This court has examined the cases cited by GEICO, and other cases, prohibiting chiropractors from performing electrotherapy (e.g., State v Wilson, 11 Wash App 916, 917, 528 P2d 279, 280 [1974], review denied 84 Wash 2d 1015, 528 P2d 279 [1974]; State v Boston, 226 Iowa 429, 278 NW 291 [1938]). These cases on electrotherapy are inapposite to the prescription of the unremarkable medical equipment prescribed herein. This court, at any rate, also notes that, under the terms of Education Law § 6551 (3), quoted above, New York permits chiropractors to utilize certain electrical devices that may be approved by the State Board for Chiropractors, and the 4-lead TENS unit at issue here is permissible.

The Insurance Law regulations specifically incorporate the fee schedules of the Workers’ Compensation Law (11 NYCRR 65.15 [o] [1]). The court has also reviewed, although not cited by either party, the Official New York Workers’ Compensation Chiropractic Fee Schedule (fee schedule), effective April 1, 2000 (see, 12 NYCRR 348.2 [a] [that provision of the Labor Law regulations specifically incorporates by reference the fee schedule]; 12 NYCRR 348.1, 348.2). The fee schedule specifically permits New York chiropractors to bill for electromyographic recordings, needle electromyography (EMG) tests, nerve conduction, and a host of other services.^[FN2]

Pertaining to medical equipment and supplies, the fee schedule, in its “General Ground Rules,” states:{**3 Misc 3d at 186}

“3. materials supplied by a chiropractor

“Supplies and materials provided by the chiropractor over and above those usually included with the office visit or other services rendered may be charged for separately. List drugs, trays, supplies [*4]and materials provided. Payment shall not exceed the invoice cost of the item(s), applicable taxes and any shipping and handling costs associated with delivery from the supplier of the item to the chiropractor’s office. There should be no additional ‘handling’ costs added to the total cost of the item. Bill using procedure code 99070.”

Since the fee schedule does not permit chiropractors to bill for a medical supply beyond the invoice cost, chiropractors apparently have little motivation to provide directly to the patient the needed equipment. Instead, the simple act of writing a prescription for the device by the chiropractor is more time-efficient for the chiropractor and more profitable for a medical supplier, under the aforementioned Insurance Law regulations that permit a charge of “150 percent of the documented cost of the equipment to the provider” (11 NYCRR part 68, Appendix 17-C, part E [b] [1]).

In moving for summary judgment, GEICO counsel used the following caption, which appeared in boldface type and underlined in its motion papers: “plaintiff has failed to prove medical need.” Despite the caption, suggesting that a discussion of its medical necessity defense would follow, GEICO did not develop the defense of medical necessity, did not include the peer review report cited in its answer, and restricted its argument to Dr. Pieratti’s alleged violation of Education Law § 6551 (3).

The cases are clear that in moving for summary judgment on the grounds of medical necessity, the burden is on the insurer to make a prima facie case by including the peer review report. Failure {**3 Misc 3d at 187}to include it warrants denial of the summary judgment motion (see, S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d Dept 2003] [peer review report would have been proper vehicle to assert and maintain defense of lack of medical necessity]; L.I. First Aid Med. Supply v Progressive Cas. Ins. Co., 196 Misc 2d 258 [Civ Ct, Queens County 2003]; S & M Supply v New York Cent. Mut. Fire Ins. Co., 193 Misc 2d 282, 284 [Civ Ct, Kings County 2002]). In the present case, it was plaintiff’s counsel, in opposition to the motion, who produced the peer review report. This court, accordingly, will discuss the alleged defense.

Louis Filardi, also a doctor of chiropractic and author of the peer review report, challenges Dr. Pieratti for prescribing all of the aforementioned medical equipment and supplies only one day after the accident. Citing Clinical Practice Guidelines No.14, published by the United States Department of Health and Human Services, Dr. Filardi states that 80%-90% of all individuals who complain of soft tissue injury have a resolution of their complaints in one month of the accident. He, therefore, expresses his astonishment for the necessity of prescribing “all of these durable medical goods” within 24 hours after the accident.

In the present case, the prescription, regardless of when it was written, may have been justified in light of the patient’s overall condition, not clearly disclosed on this record. The trier of fact ought to determine these contested issues. Accordingly, the defendant’s motion for summary judgment is, in all respects, denied.

Footnotes

Footnote 1: The peer review report submitted by GEICO maintains that the accident occurred on May 16, 1999. However, twice in Dr. Pieratti’s “Letter of Medical Necessity” the date of the accident is said to be April 16, 1999. Upon request by this court for confirmation, plaintiff’s counsel sent a fax disclosing that the accident was, indeed, on May 16, 1999.

Footnote 2: Under New York law, chiropractors may recover no-fault first-party benefits for conducting EMGs (see, Introna v Allstate Ins. Co., 890 F Supp 161, 165 [ED NY 1995]; Stephens v Allstate Ins. Co., 185 AD2d 338 [2d Dept 1992]; Studin v Allstate Ins. Co., 152 Misc 2d 221, 223-224 [Dist Ct, Suffolk County 1991] [chiropractors can recover for performing EMGs, citing Education Law § 6551 (3) and 8 NYCRR 73.3]; 12 Couch on Insurance 3d § 171:68 [1998] [chiropractor entitled to compensation for conducting surface EMGs]; see also, Posillico v Freeman, NYLJ, June 18, 1996, at 33, col 6 [Yonkers City Ct, Westchester County] [insurer did not contest chiropractor’s claim for electrical stimulation]; but cf. Downey v Barnhart, 294 F Supp 2d 495, 498, n 3 [SD NY 2003] [chiropractor was not an acceptable source for providing a medical interpretation of the EMG]; Machac v Anderson, 261 AD2d 811, 813 [3d Dept 1999] [chiropractor not licensed to interpret X rays]).

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by State Farm Mutual Automobile Insurance Company from an order of the Civil Court, Queens County (Agate, J.), entered January 31, 2003, denying its petition to vacate the arbitrator’s awards.

Order unanimously affirmed without costs.

Upon a review of the record, we find that, with regard to the compulsory arbitration of its no-fault claim, State Farm Mutual Automobile Insurance Company (State Farm) has failed to establish that the arbitrator’s award was not based on the evidence and was arbitrary and capricious (see Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [19961). In regard to its uninsured motorist claim, State Farm also has not established that the arbitrator “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]). Consequently, State Farm’s petition to vacate the awards was properly denied. Furthermore, inasmuch as Travelers Insurance Company has not cross-appealed with respect to its cross petition to confirm the awards, this court will not address said issue on appeal.

SM-2

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (P. O’Donoghue, J.), dated December 6, 2000, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

The plaintiff instituted this action under the No-Fault Law to recover for medical services it provided to its assignor. In support of its motion for summary judgment, plaintiff submitted its claim forms and the defendant’s denial of the claims based upon an affirmed peer review report submitted by its doctor.

The order denying plaintiffs motion for summary judgment should be affirmed. The plaintiffs prima facie showing was opposed by an affirmed medical report raising a triable issue of fact. The defense of lack of medical necessity may be based either on a medical examination or a sufficiently detailed peer review report, as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8 (b) (4). Here, defendant timely denied plaintiffs no-fault benefits claim following a file-based peer review which, in our view, set forth a factual basis and medical rationale sufficient to create a triable issue as to the treatment’s medical necessity (Rockawav Blvd. Medical P.C.. Park Health Ctr. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: December 22, 2003

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, Suffolk County (H. Bergson, J.), entered October 18, 2002, denying 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 the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in its “geographic location” (cf. 11 NYCRR 68.5 [b], Reg. No. 83). The Insurance Department regulation permitting reference to “the prevailing fee in the geographic location of the provider” to determine appropriate no-fault compensation pertains only where “the superintendent has not adopted or established a fee schedule applicable to the provider” (id.; e.g. Tucciarone v Progressive Ins. Co., 204 AD2d 864 [1994]). The regulations, however, explicitly limit a provider’s medical equipment claims to 150 percent of cost (11 NYCRR App. 17-C, Part E [b] [1]) which clearly is an applicable fee schedule within the contemplation of 11 NYCRR 69.5 (b) (see King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d 667, 673 [2003]). As “[tjhe purpose of [Insurance Law § 51083 and the fee schedules promulgated thereunder [was] ‘to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989]), we must assume that the 150 percent rule represents a legislative determination that the net effect of this straightforward, categorical limitation on fees, coupled with suppliers’ marketplace competition to moderate prices (or at least to minimize price disparities), “help[s] contain the no-fault premium” (id.). If the premises underlying this [*2]determination are empirically unsound, the solution is remedial legislation.
Decision Date: December 22, 2003

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, Suffolk County (H. Bergson, J.), entered October 23, 2002, denying 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 the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in its “geographic location” (cf. 11 NYCRR 68.5 [b], Reg. No. 83). As defendant preserved no other proper defense to the action, plaintiff’s motion for summary judgment should have been granted for the reasons set forth in King’s Med. Supply Inc. v Allstate Ins. Co., (No. 2003-50 S C [decided herewith]).
Decision Date: December 22, 2003

[*1]

District Court of Nassau County, December 12, 2003

APPEARANCES OF COUNSEL

Belesi & Donovan, P.C., for plaintiff. Robert P. Macchia & Associates for defendant.

{**2 Misc 3d at 638} OPINION OF THE COURT

Scott Fairgrieve, J.

Plaintiff’s application pursuant to CPLR 3215, seeking entry of default judgment in favor of plaintiff against defendant Allstate Insurance Company must be denied and the action dismissed for the reasons stated herein.{**2 Misc 3d at 639}

Plaintiff Carlos R. Tauz, L.M.T., as assignee of Juan E. Lucero, seeks to recover the sum of $6,397.59 for medical services provided to Mr. Lucero pursuant to the No-Fault Law, article 51 of the Insurance Law, and the regulations of the New York State Insurance Department (11 NYCRR 65.10 et seq.). The affidavit of service states that Allstate was served with the summons and complaint on August 27, 2003 at 10:00 a.m. in Suffolk County at 888 Veterans Memorial Highway, Hauppauge, New York. A letter dated October 1, 2003 was sent to Allstate at a Nassau County address at 60 Charles Lindbergh Boulevard, Uniondale, New York 11553, stating that plaintiff would seek a default judgment against Allstate unless an answer was served within 10 days. The second page of the notice of motion provides that Allstate is located at 60 Charles Lindbergh Boulevard, Uniondale, New York 11553. However, the affidavit of service concerning the application for a default [*2]judgment was mailed to Allstate at a different Nassau County address, 1111 Marcus Avenue, Lake Success, New York.

This court has seen numerous cases involving no-fault claims where service is made at one location and other types of mailings are sent to a different location which in the opinion of the court is a deliberate attempt to cause confusion on a large insurance company with the result that a default judgment may be entered. This court will no longer tolerate this gamesmanship and will dismiss actions or refuse to enter default judgments when the law is not followed. UDCA 403 states:

“Service of summons shall be made in the manner prescribed in supreme court practice, including the optional method of service by mail authorized by CPLR 312-a, but it shall be made only within the county unless service beyond the county be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.”

Pursuant to UDCA 403, service must be made within Nassau County unless service is authorized by some other provision of law such as UDCA 404.

UDCA 404 (d) states:

“(d) Corporation or association. If service of the summons cannot be effected by personal delivery thereof within the county so as to acquire in personam jurisdiction of a corporation or unincorporated association, such corporation or association shall {**2 Misc 3d at 640}be deemed a non-resident of the county for purposes of this section.”

It is clear from reading UDCA 404 (d) that a corporation can only be served outside Nassau County if it can’t be served by personal delivery within Nassau County.

Plaintiff has demonstrated to the court that Allstate has at least two Nassau locations. This court has already ruled that service of a summons and complaint upon an insurer outside Nassau County when it has an office in Nassau County for personal delivery of pleadings is ineffective to confer jurisdiction upon the defendant insurer. (See Beverly Hills v AIG Ins. Co., 194 Misc 2d 533 [Nassau Dist Ct 2003].)

In Long Is. Garage Door Co. v Stafford (53 Misc 2d 568 [Nassau Dist Ct 1967]) plaintiff sought an order amending the summons nunc pro tunc. Service was made outside Nassau County and served in Suffolk County. The court stated that service of the summons outside Nassau County was void and deprived the court the ability to allow amendment of the summons unless service was specifically authorized. The court stated (at 569):

“A somewhat different situation presents itself here. In this case, the summons was served outside the territorial jurisdiction of this court. [*3]This can be validly done only under certain statutorily prescribed circumstances. (See UDCA, §§ 403, 404.)

“It may well be that one reason formal pleadings are required by the statute where service is made without the county is to apprise the defendant of what the jurisdictional basis for such service is, if any, and to enable him to attack jurisdiction if he were so advised.

“CPLR 320 (subd. [b]) provides that objection to jurisdiction over the person must be raised by answer or motion or it is waived.

“The court cannot act to direct an amendment of the summons unless it has jurisdiction. Certainly, a summons served outside the territorial jurisdiction of this court is void except as specifically provided for (UDCA, § 403). Even an appearance by defendant will not confer jurisdiction where personal jurisdiction is based solely upon section 404 of the UDCA if the cause does not, in fact, arise out of an act enumerated therein.

“It is incumbent upon the plaintiff to demonstrate that this court, at least prima facie, has jurisdiction here {**2 Misc 3d at 641}and that service outside the county was properly authorized.”

In Made-Ready Door Co. v Fox Ledge Corp. (86 Misc 2d 518 [Suffolk Dist Ct 1976]), service was made to the individual Melvin Casher by delivery of the summons and complaint to a person of suitable age and discretion at his place of employment in Suffolk and mailing same to Mr. Casher to his Nassau County residence.

The court wrote that service outside Suffolk by mailing the summons and complaint to Mr. Casher’s home in Nassau was not justified by either UDCA 403 or 404 (at 519-520):

“It is this court’s opinion that the delivery of a summons to a person of suitable age and discretion at the defendant’s actual place of business within the jurisdictional limits of the court and mailing a copy of the summons to the defendant’s last known residence outside the territorial limits of the court constitutes service outside the territorial limits of the court requiring the jurisdictional basis to be alleged in the complaint. The mere fact that a copy of the summons was delivered to the defendant’s actual place of employment is immaterial. Service could not have been completed without mailing a copy of the summons to the defendant’s last known residence outside the county. The fact that the defendant is regularly employed within the territorial limits of the court, in itself, does not justify extraterritorial service. (Roder v Goldsmith, 49 Misc 2d 882.)

“The Uniform District Court Act requires that a summons must be served within the county in which the action is brought unless otherwise authorized by, such act or provision of law other than the CPLR. (UDCA, § 403.) Section 404 of the Uniform District Court Act more specifically provides those instances when extraterritorial service may be made upon a nonresident. In these instances extraterritorial service may be made upon a nonresident. In these instances extraterritorial service may be made upon a nonresident but only if the jurisdictional basis is alleged in the pleadings. (All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677; Henry Sash & Door Co. v Medi-Complex, 69 Misc 2d 269.)”

In Coffman v National Union Fire Ins. Co. of Pittsburgh, Pa. (60 Misc 2d 81 [Nassau Dist Ct 1969]), the automobile accident occurred {**2 Misc 3d at 642}in Queens County and the action arose out of a dispute over medical payments. The plaintiff and the defendant’s insured resided in Queens County. The defendant insurance company had a Nassau office at the time of the accident but this office was subsequently closed before service of the summons and complaint. Service was made upon the defendant in New York County.

Defendant moved to dismiss because no grounds existed under UDCA 404 for the court to exercise jurisdiction over the defendant.

The court dismissed the action because no basis existed under the criteria of UDCA 404 to sustain jurisdiction and permit service outside the county. The court further noted that the complaint failed to allege jurisdictional facts which would allow the court to invoke in personam jurisdiction over the nonresident. Based upon the foregoing, the court dismissed the action without prejudice.

In the case at bar, no justification exists to allow service upon Allstate in Suffolk when Allstate has two offices located in Nassau County by the plaintiff’s own admission. This court will not permit this type of practice to continue whereby service is made outside Nassau County and other types of notices are sent to different offices within Nassau with the apparent attempt to cause confusion with the defendant so that a default judgment may result.

The submission of a motion does not impose upon the court a ministerial duty to grant the relief sought. This court has the inherent power not to enter judgment (even on default) where jurisdiction is lacking. (See Rivera v Laporte, 120 Misc 2d 733 [Sup Ct, NY County 1983]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3215.09; Howard Oil Co. v Morris, 90 Misc 2d 713 [Civ Ct, NY County 1977]; Kahn v Friedlander, 90 AD2d 868 [3d Dept 1982].)

This court is dismissing the plaintiff’s action without prejudice.

Conclusion

Service upon Allstate in Suffolk County is prohibited under UDCA 403 and 404 where Allstate has a Nassau County office. No basis has been shown in the complaint nor in the moving papers to permit long-arm service under UDCA 404. Thus the complaint {**2 Misc 3d at 643}is dismissed without prejudice to be renewed upon service authorized by UDCA 403.

[*1]

Supreme Court, Appellate Term, Second Department, December 9, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

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

Memorandum.

Order unanimously reversed without costs, motion for summary judgment on their claims granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.{**2 Misc 3d at 27}

In this action to recover $4,643.74 in first-party no-fault benefits, two of the plaintiffs moved for summary judgment, Royalton Chiropractic P.C. on two claims, one for $1,730.58 for tests rendered April 13, 2001, and one for $1,757.62 for tests rendered April 16, 2001, and A.B. Medical Services, PLLC on its two claims, each for $302.12. Defendant opposed, citing said plaintiffs’ failure to prove the treatments’ medical necessity and otherwise to allege a prima facie case for summary judgment. Summary judgment should have been granted as to the four claims.

We have rejected arguments that a no-fault benefits claimant is obligated to prove the treatment’s medical necessity, at the claim stage or in support of its motion for a summary judgment in a subsequent action on the claim (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] [decided herewith]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U]; Park Health Ctr. v Prudential Prop. & [*2]Cas. Ins. Co., 2001 NY Slip Op 40650[U]; see also Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]). Having failed to timely mail or otherwise deliver its determination form with respect to Royalton’s $1,730.58 claim, that is, to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8 [c]) within 30 days of receipt as required by Insurance Law § 5106 (a) (see Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]; Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]), defendant waived nearly all objections and defenses thereto, relating to the adequacy of the proof of claim (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]) or to its propriety (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v Empire Ins. Co., 295 AD2d 325 [2002]). We also agree that defendant failed to demonstrate that it took any action on Royalton’s $1,757.62 claim after Royalton timely responded to its request for medical verification, thereby waiving any defenses to said claim. Finally, given A.B. Medical Services’ unrebutted proof that it mailed Kaufman’s claims on September 24, 2001, defendant’s March 2002 verification requests were clearly untimely (11 NYCRR 65-3.5 [a]; 65-3.6 [b]) and thus summary judgment should also be granted as to this claim.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $4,092.44, the portion of the claim for which summary judgment {**2 Misc 3d at 28}was sought (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.

Aronin, J.P., Golia and Rios, JJ., concur.

—

Kane, J. Appeal from an order and judgment of the Supreme Court (Nolan, Jr., J.), entered November 8, 2002 in Saratoga County, upon a decision of the court in favor of plaintiff.

Bruce Campbell, Jr. was driving a vehicle insured by defendant. After the vehicle stalled and Campbell could not restart it, he pushed the vehicle down a hill to a safer spot, pushed it to the shoulder of the road against a snowbank, turned on its hazard flashers, locked the doors and walked home. Approximately 15 minutes later, he returned in another vehicle and attempted to jump start the disabled vehicle. These attempts were fruitless. Campbell then locked the vehicle again and went to a friend’s home in order to get someone to tow the disabled vehicle. About 20 to 25 minutes later, as he was heading back to the vehicle, he was informed that two snowmobiles had collided with the disabled car. Plaintiff, who was operating one of those snowmobiles, was injured. After defendant denied plaintiff’s request for no-fault benefits, plaintiff commenced this action. The sole issue was whether the disabled vehicle was in “use or operation” at the time of the accident, thus permitting plaintiff to recover no-fault benefits pursuant to Insurance Law § 5103 (a) (1). After a bench trial, Supreme Court found that the vehicle was in use and granted judgment to plaintiff. We agree.

In McConnell v Fireman’s Fund Am. Ins. Co. (49 AD2d 676 [1975]), the plaintiff, while operating a snowmobile, struck a locked, unoccupied automobile parked on the street. The Fourth Department held that the automobile was not in “use” within the meaning of the Insurance Law (id. at 677). Unlike the vehicle owner in McConnell, Campbell did not voluntary place his vehicle near his residence intending that to be his permanent parking place for the night (cf. Wooster v Soriano, 167 AD2d 233 [1990]). He experienced an unplanned stop due to the temporary disability of his car in a place where a vehicle would not normally be parked. Campbell activated the hazard lights to warn other drivers, and his sole purpose in leaving the vehicle was to gain assistance to return and retrieve it as soon as possible. These circumstances constituted an “on-going activity relating to the vehicle” which would necessitate a conclusion that the vehicle was in use (compare Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635 [1981]; Gering v Merchants Mut. Ins. Co., 75 AD2d 321, 323 [1980]). Because the vehicle he struck was in “use or operation” at the time of the accident, plaintiff is entitled to no-fault benefits.

Cardona, P.J., Crew III, Peters and Mugglin, JJ., concur. Ordered that the order and judgment is affirmed, with costs.