SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered July 2, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs’ assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]

With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated May 16, 2008. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion which sought to dismiss the complaint due to plaintiff’s failure to comply with defendant’s discovery demands, or, in the alternative, to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands.

Order, insofar as appealed from, modified by providing that the branch of defendant’s motion seeking to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands is granted to the extent of compelling plaintiff to produce the documents and information demanded in items 5, 6, 7 and 9 of defendant’s notice for discovery and inspection and to serve answers providing the information sought in questions 31, 32, 37, 38, 45 and 46 of defendant’s demand for verified written interrogatories, within 60 days of the order entered hereon, and by further compelling plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3126, based upon plaintiff’s failure to comply with discovery, or, in the alternative, pursuant to CPLR 3124, to compel plaintiff to respond to its demand for written interrogatories, to produce the documents requested in its demand for discovery and inspection, and to compel plaintiff to produce its owner, Valentina Anikeyeva, to appear for an examination before trial (EBT). Defendant acknowledged receipt of plaintiff’s [*2]responses to its discovery demands, which plaintiff had served more than 18 months after service of defendant’s discovery demands, but claimed that plaintiff’s answers were either insufficient or unresponsive. Defendant specifically alleged that plaintiff had failed to give meaningful responses to questions 31, 32, 36, 37, 38, 45 and 46 of its demand for verified written interrogatories, and to items 5, 6, 7, 8 and 9 of its demand for discovery and inspection. Defendant also asserted that it was entitled to an EBT of plaintiff’s owner, Valentina Anikeyeva. Plaintiff opposed the motion, arguing that its responses were proper, and that defendant had failed to demonstrate that plaintiff’s owner’s EBT would lead to any relevant information that could not be adequately addressed in plaintiff’s responses to the interrogatories. The District Court denied so much of defendant’s motion as sought to dismiss the complaint based on plaintiff’s failure to comply with defendant’s discovery demands, and, to the extent that defendant raised specific objections to plaintiff’s responses to its discovery demands, the District Court denied the branch of defendant’s motion which sought, in the alternative, to compel such responses. The District Court also denied the branch of defendant’s motion seeking to compel Ms. Anikeyeva to appear for an EBT on the ground that defendant failed to demonstrate any genuine need for same. The instant appeal by defendant ensued.

Plaintiff was required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiff failed to timely object to defendant’s demand for verified written interrogatories. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co, 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

To the extent defendant’s discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not timely object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). However, defendant seeks discovery, inter alia, to support its defense that plaintiff is ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. As a result, discovery of, among other things, the contract between plaintiff and its management company, if any, and the agreement pursuant to which plaintiff occupied its premises, is not palpably improper, and plaintiff did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 5, 6 and 7 of its notice for discovery and inspection and to answers providing the information sought in questions 31, 32, 38, 45 and 46 of its demand for verified written interrogatories (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]). [*3]

In addition, we find that special circumstances exist which warrant the disclosure of plaintiff’s corporate income tax returns (see CPLR 3101 [a]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also One Beacon Ins. Group, LLC, 54 AD3d 738; Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is also entitled to the documents demanded in item number 9 of its notice for discovery and inspection and to the answer sought in question 37 of its demand for verified written interrogatories.

Contrary to the District Court’s conclusion, defendant was not required to show, as a prerequisite to an EBT of Ms. Anikeyeva, that plaintiff’s responses to its demand for written interrogatories were inadequate. “The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them” (Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]). Accordingly, defendant was entitled to conduct such EBT notwithstanding the fact that it had also served plaintiff with other discovery demands (see CPLR 3102; Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]; Great Wall Acupuncture, P.C. v General Ass. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]). Moreover, since defendant is asserting a Mallela defense, it was entitled to such an EBT (see Corona Heights Med. P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52185[U] [App Term, 2d & 11th Jud Dists 2008]; see also Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co, 2 Misc 3d 347, 353 [Civ Ct, Queens County 2003] [“Depositions in certain cases under the no-fault laws, for example, may be helpful in detecting instances of fraud”]).

To the extent that defendant also sought to compel production of the personal federal and state income tax returns of Ms. Anikeyeva, defendant failed to establish its entitlement to such documents since “[i]t is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). As a result, at this juncture, defendant failed to meet its burden of establishing that Valentina Anikeyeva’s personal income tax returns were properly discoverable, particularly where, as here, defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, we modify the order of the District Court to the extent indicated above.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated June 23, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for, inter alia, summary judgment dismissing the complaint on the ground, among others, that defendant did not receive the claim forms upon which plaintiff seeks to recover. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.

A provider establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The affirmation of plaintiff’s “primary doctor and principal shareholder” was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.

Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant’s cross motion (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]). We pass on no other issue.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 9, 2008. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff had failed to make out a prima facie case in that plaintiff had failed to prove the admissibility of the assignment of benefits form and that, in any event, defendant had denied plaintiff’s claim on the ground of lack of medical necessity. The District Court denied plaintiff’s motion for summary judgment, finding that the peer review report demonstrated the existence of a triable issue of fact as to medical necessity. This appeal by plaintiff ensued.

Defendant asserts that the affidavit submitted by plaintiff’s billing manager was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case. We note that, contrary to defendant’s contention, proof of the assignment of benefits form is not an element of plaintiff’s prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [*2][2004]).

In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed (e.g. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dist 2007]).

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), dated April 17, 2008. The order, insofar as appealed from, denied so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094.

Order, insofar as appealed from, reversed without costs, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 granted and matter remanded to the District Court for a calculation of statutory interest and an assessment of attorney’s fees due thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, supporting the motion with an affirmation from plaintiff’s counsel, an affidavit from plaintiff’s president and medical biller, and various documents. In opposition to the motion, defendant argued, inter alia, that summary judgment should be denied as to the bills at issue on this appeal because plaintiff’s attempt to recover upon said bills was premature due to the failure of plaintiff’s assignors to appear for properly noticed independent medical examinations (IMEs). In an order dated April 17, 2008, insofar as appealed from, the District Court denied so much of plaintiff’s motion as sought summary judgment upon said bills, on the ground that defendant had established that the assignors had failed to appear for IMEs.

On appeal, defendant asserts that the affidavit submitted by plaintiff’s president and [*2]medical biller was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Although defendant denied the bills at issue on the ground that plaintiff’s assignors failed to attend scheduled IMEs, the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that plaintiff’s assignors did not appear for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In light of the foregoing, the order, insofar as appealed from, is reversed, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 is granted and the matter is remanded to the District Court for the
calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Tanenbaum, J.P., and Molia J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an amended order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered May 4, 2007, which denied his motion for summary judgment.

Per Curiam.

Order (Manuel J. Mendez, J.), entered May 4, 2007, affirmed, with $10 costs.

Defendant’s NF-10 form, which stated that plaintiff’s no-fault claim was denied based on the results of an independent peer review, sufficiently apprised plaintiff of the factual basis for the denial (see 11 NYCRR 65-3.8[b][4]; New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 39 AD3d 832 [2007]). The initial peer review report relied upon by defendant, as amplified upon defendant’s receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur

Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $1,572.26.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s biller failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. The court also granted defendant’s cross motion for summary judgment as to plaintiff’s claim for $230.09 and denied defendant’s cross motion for summary judgment as to plaintiff’s claim for $1,572.26. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment with respect to the claim for $1,572.26.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Plaintiff’s remaining contentions are wholly without merit. Consequently, so much of plaintiff’s motion as sought [*2]summary judgment with respect to the claim for $1,572.26 was properly denied.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint as to the claim for $1,572.26 (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 25, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 18, 2007, deemed from a judgment of the same court entered September 12, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the May 18, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $911.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it denied plaintiff’s claim on the ground that no coverage existed since the policy benefits had been exhausted. In response, plaintiff argued that defendant failed to timely deny plaintiff’s claim and, in any event, defendant did not present admissible evidence establishing that the policy benefits were exhausted because the affidavit by defendant’s claims representative was executed before a Massachusetts notary public and there was nothing showing that it complied with CPLR 2309 (c). The Civil Court granted plaintiff’s motion for summary judgment, holding that defendant failed to proffer evidence establishing a triable issue of fact. The instant appeal by defendant ensued. A judgment was subsequently entered.

A “defendant’s failure to issue a denial of the claim within 30 days d[oes] not preclude a defense that the coverage limits of the subject policy have been exhausted” (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2005] [internal quotations omitted]; see also Presbyterian Hosp. in City of NY v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]). However, the affidavit proffered by defendant, in which defendant’s claims representative asserted that the available coverage had been exhausted, was not in admissible [*2]form. Defendant’s affidavit was not in conformity with CPLR 2309 (c), which fact was duly objected to by plaintiff in the Civil Court (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant’s attorney’s affirmation was of no probative value since she did not establish that she had personal knowledge that the coverage limits of the policy had been exhausted. Consequently, defendant’s assertion of the exhaustion of available coverage was without any probative value.

Defendant’s remaining contention is unpreserved for appellate review and, in any event, lacks merit (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the judgment is affirmed.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate the order entered May 18, 2007 and deny plaintiff’s motion for summary judgment, in the following memorandum:

The majority decision here places form over substance and does not comport with the entire body of law as rendered by the Court of Appeals.

One of the pre-eminent cases in no-fault law is the Court of Appeals’ decision in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). The commonly held belief among many who are involved in no-fault law and litigation is that Chubb provides that a defendant will not be precluded from raising the defense of a “staged” accident despite having failed to deny the claim within 30 days. In actuality, however, there was no claim of a “staged” accident in Chubb. The defendant simply asserted that the assignor’s injuries were the result of a work-related accident and were therefore not covered by the automobile insurance policy in question. The Court of Appeals specifically held that despite the fact that the assignor was a covered person who was involved in an otherwise “covered” accident, there was a founded belief that her injuries were due to some other cause and were therefore not covered by the policy of insurance.

Indeed, Chubb relied heavily upon the prior Court of Appeals’ decision of Zappone v Home Ins. Co. (55 NY2d 131 [1982]). There, Mr. Zappone sent notice to the defendant Home Insurance Company that he had been in an automobile accident and was being sued by those injured in that accident. That notice sought coverage by the carrier in excess of the benefits being provided by the primary carrier. Home Insurance failed to disclaim coverage until some 15 months later, which unquestionably exceeded the mandates of subdivision 8 of section 167 of the Insurance Law.

The Court of Appeals was then confronted with applying a statute whose clear effect would result in directing an insurance carrier to provide coverage and reimbursement for which the carrier did not contract. The Court declined to do so and stated that,

“Literal interpretation of the words used will not be [*3]accorded when to do so will occasion great inconvenience, or produce inequality, injustice or absurdity. It is, moreover, always presumed that no unjust or unreasonable result was intended and the statute must be construed consonant with that presumption” (id. at 137 [citations omitted]).

Nevertheless, here the majority gives no weight to defendant’s attorney’s affirmation that effectively placed into issue whether, in accordance with the terms of the insurance contract, the assignor’s benefits had “maxed out”. Indeed, her affirmation refers to and incorporates certain documents pertaining to the fact that this claim is beyond the $8,000 monetary limit for no-fault benefits under the insurance contract at issue.

More specifically, that affirmation states that :
“The bill was denied because the policy benefits of $8,000.00 provided under the Massachusetts policy have been exhausted . . . [A]nnexed hereto as Exhibit B . . . [are] copies of the following:
Application for PIP Benefits indicating accident occurred in Massachusetts; printouts from carrier containing coverage information and portion of insurance policy providing for PIP coverage in the amount of $8,000.00; Payment History showing payout of benefits in the amount of $8,000.00″
These documents, coupled with the uncertified “affidavit” by Ms. Teixera, which was sworn to before a notary of our sister state of Massachusetts, in addition to the affirmation of the moving attorney, should certainly constitute a “founded belief” that this claim is not covered by the policy of insurance (see Weiss v Garfield, 21 AD2d 156 [1964] and the dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co, 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). Indeed, even if it does not reach that level, then the lessons taught by Chubb and Zappone should still have mandated that plaintiff’s motion for summary judgment be denied.
Decision Date: June 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered October 30, 2007. The order, insofar as appealed from, denied plaintiff’s motion, inter alia, to compel the deposition of defendant and, in effect, granted the branch of defendant’s cross motion seeking a protective order.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon and the branch of defendant’s cross motion seeking a protective order denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, inter alia, for an order compelling the deposition of defendant and conditionally striking defendant’s answer or precluding defendant from offering evidence at trial in the event of defendant’s noncompliance. Defendant opposed the motion and cross-moved for an order compelling plaintiff to respond to defendant’s discovery demands and for a protective order. Insofar as is relevant to this appeal, the court denied plaintiff’s motion and, in effect, granted the branch of defendant’s cross motion seeking a protective order. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for full disclosure of all matter “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, the order, insofar as appealed from, is reversed, plaintiff’s motion is granted to the extent of compelling defendant to appear for a deposition, and the branch of defendant’s cross motion seeking a protective order is denied (see Connely v Allstate Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51874[A] [App [*2]Term, 2d & 11th Jud Dists 2008]).

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I believe the decision should also note that the deposition of defendant by plaintiff should be held only after plaintiff completes defendant’s interrogatories as previously ordered by the court below.
Decision Date: June 23, 2009

[*1]

Supreme Court, Appellate Term, First Department, June 19, 2009

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina & Edward Satran, Woodbury (Edward Satran of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for respondent.

{**24 Misc 3d at 44} OPINION OF THE COURT

Per Curiam.

Judgment, entered on or about February 15, 2007, affirmed, with $25 costs.

Plaintiff, a health services provider, commenced this action to recover first-party no-fault benefits for health services rendered to plaintiff’s assignor (Burgos), who was involved in a motor vehicle accident on August 4, 2003. At the time of the accident, Burgos was driving a rental car owned by nonparty Manhattan Ford Lincoln Mercury, Inc. and allegedly insured by nonparty Fidelity and Guaranty Insurance Company. Burgos’ insurer, defendant Government Employees Insurance Company (GEICO), denied plaintiff’s no-fault claim on the ground that no-fault benefits were payable by Fidelity. GEICO stipulated to plaintiff’s prima facie case and raised as its sole defense that it was not obligated to pay plaintiff’s claim since Burgos’ insured vehicle was not involved in the accident and the payment of first-party benefits was the sole responsibility of Fidelity, as Manhattan Ford’s insurer. After trial, the court awarded judgment to plaintiff, holding that GEICO’s objection to payment did not raise an issue of coverage, but rather one of priority of payment, which under Insurance Law § 5105 (b) and applicable regulations must be submitted to arbitration.

Civil Court properly determined that it could not adjudicate the threshold issue raised at trial by GEICO, viz., whether it or Fidelity was primarily responsible for the payment of the first-party benefits sought by plaintiff. Under Insurance Law § 5105 (b), arbitration shall be “utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits” (Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). GEICO’s argument that its denial of benefits raised an issue of coverage because it was not “otherwise liable” for the payment of first-party benefits (see 11 NYCRR 65-3[*2].12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute{**24 Misc 3d at 45} automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment. 11 NYCRR 65-4.11 (a) (6) pertinently provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority of payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” GEICO, as “the first insurer to whom notice of proof of claim [was] given” (11 NYCRR 65-3.12 [b]), was obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues relating to the priority or source of payment. Since GEICO denied payment of plaintiff’s claim on the stated ground that no-fault benefits were payable by Fidelity, its denial raised a question concerning the responsibility or obligation to pay first-party benefits, an inter-company dispute which must be resolved through mandatory arbitration (see Paramount Ins. Co. v Miccio, 169 AD2d 761 [1991]; Pacific Ins. Co. v State Farm, 150 AD2d at 456), not by way of a defense to plaintiff’s plenary no-fault action.

McKeon, P.J., and Heitler, J., concur.