APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 4, 2007, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 4,
2007, affirmed, with $10 costs.

Although plaintiff’s claim for no-fault benefits was concededly submitted to defendant beyond the 45-day statutory period (see 11 NYCRR 65-1.1), the record shows that plaintiff’s claim submission included correspondence attempting to explain its delay in filing. Under the regulations, an insurer must not only provide a claimant the opportunity to submit a reasonable justification for any late notice (see 11 NYCRR 65-3.3[a]), but must also establish procedures to “ensure due consideration of denial of claims based upon late filings” and must give “appropriate consideration for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer” (Matter of Medical Socy. of the State of New York v Serio, 100 NY2d 854, 863 [2003]). Inasmuch as the record does not indicate whether defendant gave any consideration to plaintiff’s explanation for its tardy submission as required by the regulations, we sustain the denial of defendant’s motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 20, 2009

[*1]

Supreme Court, Appellate Term, Second Department, April 20, 2009

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant.

{**23 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, reversed without costs, defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint granted, and complaint dismissed.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered, plaintiff moved for summary judgment. Defendant cross-moved for leave to amend its answer to assert the affirmative defense of collateral estoppel, and, upon such amendment, for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and defendant’s cross motion. Defendant appeals from so much of the order as denied its cross motion.

Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the cause of action or defense to be{**23 Misc 3d at 44} asserted in the amendment may have merit (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). The court must examine the merits of the cause of action or defense to be asserted in the proposed amendment since leave to amend should not be granted where the cause of action or defense to be asserted is totally without merit or is palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). [*2]

Defendant sought leave to amend its answer in order to interpose the affirmative defense of collateral estoppel because there was a prior arbitration proceeding between the parties in which plaintiff had sought to recover assigned first-party no-fault benefits for services rendered to a different assignor. In said proceeding, the arbitrator determined that plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]). Inasmuch as plaintiff failed to demonstrate that prejudice or surprise would result from allowing the proposed amendment (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill, 42 AD3d at 433), defendant should have been granted leave to amend its answer (see Ingrami, 45 AD3d at 808 [a defendant who has failed to assert a defense set forth in CPLR 3211 (a) (5) both in a motion to dismiss and an answer (see CPLR 3211 [e]) may nonetheless be granted leave to amend the answer to assert such defense under appropriate circumstances]).

“The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue (see Kaufman v Lilly & Co. [65 NY2d 449,] at 455)” (Luscher v Arrua, 21 AD3d 1005, 1007 [2005]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]).

“The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate” (D’Arata, 76 NY2d at 664; see also Kaufman, 65 NY2d at 456).

Collateral estoppel effect can, under appropriate circumstances, be given to arbitration awards (see Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]). Where a plaintiff has freely elected to proceed to arbitration with the assistance of counsel despite the availability{**23 Misc 3d at 45} of an alternate judicial forum and has had the opportunity to employ procedures substantially similar to those utilized in a court of law, it may be found that the plaintiff has had a full and fair opportunity to litigate the issue determined in the arbitration proceeding (Clemens v Apple, 65 NY2d 746 [1985]).

In the instant matter, defendant established that the issue of whether plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322) was identical to the issue previously decided by the arbitrator. In opposition to defendant’s cross motion, plaintiff failed to address the branch of the cross motion which sought summary judgment dismissing the complaint on the ground of collateral estoppel. Therefore, plaintiff failed to establish that it did not receive a full and fair opportunity to litigate in the arbitration proceeding. Thus, the branch of defendant’s cross motion seeking summary judgment should have been granted (see Uptodate Med. Serv., P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 128[A], 2009 NY Slip Op 50046[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for leave to amend its answer, and, upon such amendment, for summary judgment dismissing the complaint is granted, and the complaint is dismissed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.

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 (Ellen M. Spodek, J.), entered June 8, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without 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, asserting that, based on a peer review report, it timely denied plaintiff’s claim on the ground that the supplies provided were not medically necessary. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, holding, inter alia, that defendant established its defense of lack of medical necessity based on a peer review report and plaintiff proffered no evidence in opposition thereto showing that the supplies provided were in fact medically necessary. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

Contrary to plaintiff’s contention, the denial of claim form submitted by defendant, which included a defense of lack of medical necessity as per a peer review report, was not fatally defective. Although defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006] [internal quotations and citation omitted]), and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.; see also All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 130[A], 2008 NY Slip Op [*2]51417[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s defense of lack of medical necessity was not precluded.

Defendant’s cross motion papers, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, the Civil Court properly granted defendant’s cross motion for summary judgment (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v N.Y. 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 contentions were improperly raised for the first time on appeal and, in any event, lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

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 a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated November 2, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that plaintiff proved its prima facie case, and that defendant’s requests for verification and denial of claim forms were all mailed on the days which they were dated. The sole issue at trial was the medical necessity of the supplies which were provided to the assignor. Defendant’s expert medical witness, who had performed a peer review on defendant’s behalf, testified that the durable goods which were provided to plaintiff’s assignor were not medically necessary. In a decision dated November 2, 2005, the Civil Court found in favor of defendant and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). The testimony of defendant’s peer review doctor, which the trial court credited, established that there was a lack of medical necessity for the supplies issued to plaintiff’s assignor. Inasmuch as plaintiff failed to offer any rebuttal evidence to show that the supplies were medically necessary, we find that the trial court’s determination was based on a fair interpretation of the evidence. Accordingly, the judgment dismissing the complaint is affirmed. [*2]

Weston Patterson, J.P., Golia and Rios, 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 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