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 (Bernard J. Graham, J.), entered October 11, 2007. The order granted defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground that neither its insured nor its insured’s vehicle was involved in the subject hit-and-run
accident, which allegedly occurred in Brooklyn, New York. In support of its motion, defendant annexed affidavits from its insured and its insured’s wife in which they stated that although they own a 1995 Oldsmobile, they live in Fredonia, New York and neither they nor their vehicle was involved in an accident in Brooklyn. They further stated that they are the only individuals who have access to their vehicle and that they have not been to Brooklyn in over 30 years. In opposition to the motion, plaintiff proffered only an affirmation from its attorney in which he argued that defendant’s papers did not make a prima facie showing entitling it to summary judgment. The Civil Court granted defendant’s motion, and the instant appeal by plaintiff ensued.

We find that defendant made a prima facie showing that its insured’s vehicle was not involved in the hit-and-run accident in which plaintiff’s assignor was allegedly injured. Consequently, to defeat defendant’s motion for summary judgment, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 [1979]). Since plaintiff failed to do
so, the Civil Court properly granted defendant’s motion for summary judgment dismissing the [*2]complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 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 (Bernard J. Graham, J.), entered January 17, 2007, deemed from a judgment of the same court entered April 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 17, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $815.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claim on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, finding that plaintiff had established a prima facie case and that defendant had failed to raise a triable issue of fact. This appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the Civil Court’s determination with respect thereto.

The affidavit submitted by defendant’s claims employee was sufficient to establish that defendant’s denial of claim form, which denied plaintiff’s claim based upon a peer review report, was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affirmed peer [*2]review report, which set forth the physician’s opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists2007]).

Plaintiff’s contention that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, raised for the first time on appeal, was waived (see Dowling v Mosey, 32 AD3d 1190 [2006]; Alur Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]).

Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J. and Weston, J., concur.

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51501[U] [App Term, 2d & 11th Jud Dists 2008]), an appellate court “should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).
Decision Date: April 16, 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, Queens County (Diane A. Lebedeff, J.), entered January 3, 2008, deemed from a judgment of the same court entered January 25, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,284.78.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that the
supplies plaintiff provided were not medically necessary. The Civil Court granted plaintiff’s motion for summary judgment, finding that defendant was precluded from asserting its defense since it failed to establish that the statutory time period in which it had to pay or deny plaintiff’s claim was tolled, as its follow-up verification request was sent prior to the expiration of the 30-day period within which the requested verification had to be provided. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass on the propriety of the implicit determination of the Civil Court with respect thereto.

Since defendant’s papers established that it mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity Health Prods., Ltd. [*2]
v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Consequently,
defendant failed to timely deny plaintiff’s claim and is precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, the Civil Court properly granted plaintiff’s motion for summary judgment, and the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 07, 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, Queens County (Diane A. Lebedeff, J.), entered February 26, 2008, deemed from a judgment of the same court entered April 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 26, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $223.50.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that there was an issue of fact as to the medical necessity of the supplies. The Civil Court granted plaintiff’s motion for summary judgment, finding that defendant had failed to demonstrate the timely mailing of its requests for verification and its denial of the claim. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim form, 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]). We note that the affidavit submitted by plaintiff’s billing manager demonstrated that the annexed claim form constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim form was cured by defendant’s claim denial form and the affidavit of defendant’s no-fault supervisor in which receipt of the claim in question was conceded (see [*2]Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]; 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]). In addition, contrary to defendant’s contention, a “provider is not required to prove its costs to establish its prima facie case for the recovery of no-fault benefits” (Infinity Health Prods. Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, through the submission of the affidavit of its no-fault supervisor and the affirmed peer review, established that plaintiff’s claim was properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P. C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

We reach no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 03, 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 (Genine D. Edwards, J.), entered January 17, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, inter alia, that plaintiff’s affidavit did not lay a proper foundation to establish that the annexed documentation was admissible as business records pursuant to CPLR 4518. The court denied plaintiff’s motion, finding that plaintiff had “failed to establish its prima facie case.” The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures, so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s contention that the Civil Court below improvidently exercised its discretion in considering the untimely papers submitted by defendant in opposition to plaintiff’s motion lacks merit since the court also considered the reply papers submitted by plaintiff (see e.g. Vlassis v Corines, 254 AD2d 273, 274 [1998]; Kavakis v Total Care Systems, 209 AD2d 480 [1994]).

In view of the foregoing, the order is affirmed.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: April 01, 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 (Andrea Phoenix, J.), entered December 17, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for summary judgment with respect to their no-fault claims which were denied by defendant on the ground that plaintiffs’ assignor failed to attend independent medical examinations.

Order, insofar as appealed from, reversed without costs, plaintiffs’ motion, insofar as it sought summary judgment upon the claims submitted by (1) plaintiff A.B. Medical Services, PLLC seeking to recover the sums of $443.92, $1,573.24, $376.32, $71.06, $125.44 and $130.32; (2) plaintiff D.A.V. Chiropractic, P.C. seeking to recover the sums of $235.90, $202.20 and $134.80; (3) plaintiff Lvov Acupuncture, P.C. seeking to recover the sums of $510.00, $510.00, $255.00, $510.00, and $170.00; and (4) plaintiff Sowell Chiropractic, P.C. seeking to recover the sum of $88.44, is granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion, arguing, insofar as is relevant to this appeal, that plaintiffs’ assignor failed to appear for independent medical examinations (IMEs). The court denied plaintiffs’ motion, finding that plaintiffs failed to make out a prima facie case. This appeal by plaintiffs ensued.

Plaintiffs established their prima facie entitlement to summary judgment by proving the [*2]submission of statutory claim forms, 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]). We note that the affidavit submitted by plaintiffs’ billing manager demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]).

Although defendant denied certain claims on the ground that plaintiffs’ assignor failed to attend scheduled IMEs (claims from A.B. Medical Services, PLLC in the amounts of $443.92, $1,573.24, $376.32, $71.06, $125.44 and $130.32; from D.A.V. Chiropractic, P.C. in the amounts of $235.90, $202.20 and $134.80; from Lvov Acupuncture, P.C. in the amounts of $510.00, $510.00, $255.00, $510.00, and $170.00; and from Sowell Chiropractic, P.C. in the amount of $88.44), 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]). Consequently, in light of defendant’s failure to timely deny said claims, it is precluded from interposing most defenses with respect to such claims, with exceptions not relevant in this case (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). As a result, defendant failed to raise a triable issue of fact with regard to said claims, and plaintiffs are entitled to summary judgment upon the claims submitted by (1) plaintiff A.B. Medical Services, PLLC seeking to recover the sums of $443.92, $1,573.24, $376.32, $71.06, $125.44 ftlineand $130.32; (2) plaintiff D.A.V. Chiropractic, P.C. seeking to recover the sums of $235.90, $202.20 and $134.80; (3) plaintiff Lvov Acupuncture, P.C. seeking to recover the sums of $510.00, $510.00, $255.00, $510.00, and $170.00; and (4) plaintiff Sowell Chiropractic, P.C. seeking to recover the sum of $88.44, 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.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 01, 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.), dated March 27, 2008. The order denied plaintiffs’ motion for summary judgment.

Order modified by providing that plaintiffs’ motion is granted insofar as it seeks summary judgment upon the claims submitted by Gentle Care Acupuncture, P.C. seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and the claims submitted by Craigg Total Health Family Chiropractic Care, P.C. seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, and matter remanded to the District Court for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant served plaintiffs with various discovery demands. Thereafter, plaintiffs moved for summary judgment. In opposition, defendant argued that plaintiff RLC Medical, P.C. (RLC) was not entitled to summary judgment since RLC had failed to respond to defendant’s discovery demands which sought information as to whether RLC was ineligible for reimbursement of no-fault benefits because it was a fraudulently incorporated medical provider. Defendant also asserted that the billing submitted by plaintiffs Gentle Care Acupuncture, P.C. (Gentle Care) and Craigg Total Health Family Chiropractic Care, P.C. (Craigg) contained material misrepresentations regarding the services rendered to the assignor. The District Court denied plaintiffs’ motion, holding that defendant established that plaintiffs’ motion was premature because there was [*2]outstanding discovery and that, in any event, defendant raised issues of fact as to whether plaintiff RLC was ineligible for reimbursement of no-fault benefits. This appeal by plaintiffs ensued.

Plaintiffs established their prima facie entitlement to summary judgment by proving the submission of statutory claim forms, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). We note that the affidavit submitted by plaintiffs’ billing manager demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]).

In opposition to plaintiffs’ motion, defendant established that while facts may exist that are essential to justify denial of the branch of the summary judgment motion seeking to recover upon claims submitted by RLC, defendant was unable to set forth sufficient facts to establish the defense of fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) since such information was within RLC’s possession and RLC had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). Consequently, the District Court properly denied the branch of the motion for summary judgment upon the claims submitted by RLC (see id.; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

However, defendant failed to demonstrate the existence of an issue of fact with regard to claims from Gentle Care, in the amounts of $1,045, $1,500, $1,375, $1,090 and $250, and claims from Craigg, in the amounts of $88.44, $370.70, $404.40, $235.90 and $67.40. Defendant denied said claims on the ground that the “injured person” failed to attend scheduled examinations under oath (EUOs). However, defendant’s opposition papers allege that plaintiffs’ assignor appeared at the EUO. Consequently, since defendant’s stated reason for the denials of said claims is not supported by the record, defendant failed to raise a triable issue of fact with respect thereto.

Defendant denied Craigg’s $269.60 claim based upon the assignor’s EUO testimony. Since the purported EUO transcript annexed to defendant’s opposition papers is not in admissible form, we decline to consider it. Accordingly, Craigg was entitled to summary judgment upon said claim.

With regard to the $350.56 claim from Gentle Care, defendant denied it on the basis of Gentle Care’s failure to establish a prima facie case of medical necessity. However, defendant’s opposing papers did not contain any support for such defense (see Amaze Med. Supply, 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U]). Accordingly, Gentle Care was entitled to summary judgment upon said claim.

In light of the foregoing, we do not reach plaintiffs’ remaining contentions.

Accordingly, the order is modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of granting Gentle Care summary judgment on its claims [*3]seeking to recover the sums of $1,045, $1,500, $1,375, $1,090, $350.56 and $250, and granting Craigg summary judgment on its claims seeking to recover the sums of $88.44, $370.70, $404.40, $235.90, $269.60 and $67.40, the matter is remanded to the District Court for the calculation of statutory interest and attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 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 April 14, 2008. The order denied plaintiff’s motion for summary judgment.

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 plaintiff’s motion, arguing that it had a founded belief that the subject incident was a staged loss. District Court denied plaintiff’s motion, finding that plaintiff failed to prove its prima facie entitlement to summary judgment because, inter alia, the supporting affidavit did not lay a proper foundation for the admissibility of plaintiff’s business records. The instant appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proving submission of statutory claim forms, 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]). We note that the affidavit submitted by plaintiff established that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a “founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 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 (Alice Fisher Rubin, J.), entered September 11, 2007, deemed from a judgment of the same court entered December 13, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 11, 2007 order denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $612.69.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that the alleged injuries did not arise from an insured incident and that the assignor failed to comply with a condition precedent to coverage. The Civil Court granted plaintiff’s motion, holding that defendant did not plead fraud with the requisite particularity and that it did not establish a founded belief that the accident at issue was intentional. The instant appeal ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

In its answer, defendant asserted, as an affirmative defense, that “the accident that is alleged in plaintiff’s complaint was not an accident, but a staged, intentional act, for which there is no insurance coverage.” We need not determine whether this affirmative defense, which has been treated as a lack of coverage defense (see Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), is, for the purpose of CPLR 3016 (b), based upon fraud, such that the rule’s pleading requirements are triggered, since, in any event, the defense was stated with particularity. To the extent that defendant’s [*2]conclusory allegations of “illegal and/or fraudulent conduct,” and “material misrepresentations [made] in the presentation of the claim,” may have applied to circumstances other than its staged accident defense, defendant failed to meet the pleading requirements of CPLR 3016 (b) or to raise such defenses in opposition to plaintiff’s motion for summary judgment (see First Trust Natl. Assn. v DeLuca, 284 AD2d 494 [2001]).

In view of the foregoing, in order to successfully oppose plaintiff’s motion, defendant was required to establish “the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit submitted by defendant’s investigator, the testimony given by plaintiff’s assignor and the driver during their examinations under oath, and the unsworn statement of the adverse driver submitted by defendant were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp., 90 NY2d 195).

Defendant argues that plaintiff’s assignor failed to provide his personal income tax returns, which defendant claims to have requested in order to substantiate the assignor’s alleged lost wages claim, and thus failed to comply with a condition precedent to coverage. We need not determine whether plaintiff’s assignor failed to comply with a condition precedent since, in light of the “confidential and private nature” of an individual’s income tax returns (see Walter Karl, Inc. v Wood, 161 AD2d 704 [1990]), which contain information far broader than that sought by defendant, defendant failed to make a sufficient showing of special circumstances to warrant their production (see Dore v Allstate Indem. Co., 264 AD2d 804 [1999]), especially given the fact that the information sought could have been obtained through other, more focused, means.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 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 (Alice Fisher Rubin, J.), entered July 9, 2007. The order granted defendant’s 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, defendant moved for summary judgment, asserting, inter alia, that the services rendered were not medically necessary. In opposition, plaintiff argued, inter alia, that defendant failed to make a prima facie showing that the services at issue were not medically necessary. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint, holding that defendant established a lack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, defendant demonstrated that it timely mailed the denial of claim form at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s affirmed peer review report and the affidavit of its peer review acupuncturist established prima facie that there was no medical necessity for the services provided by plaintiff. We note that as some of the medical reports relied upon by defendant’s acupuncturist in his peer review report were prepared by plaintiff, plaintiff could not challenge the reliability of its own medical records and reports (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home [*2]Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Furthermore, since it has been held that an “expert witness’s testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability” (Wagman v Bradshaw, 292 AD2d 84, 85-86 [2002]), the fact that defendant’s peer reviewer relied upon medical reports from other medical providers in forming his opinion as to the medical necessity of the service performed does not render the peer review report insufficient to establish a lack of medical necessity. Inasmuch as plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 17, 2009