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 November 15, 2007, deemed from a judgment of the same court entered December 14, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2007 order denying defendant’s motion for summary judgment and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,600.

Judgment reversed without costs, order entered November 15, 2007 vacated, plaintiff’s cross motion for summary judgment denied, defendant’s motion for summary judgment granted and complaint dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that it timely denied plaintiff’s claims based on plaintiff’s owner’s failure to appear for scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered November 15, 2007, the Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment, finding that defendant did not comply with the EUO scheduling regulations, since the initial EUO was not scheduled within 30 days of defendant’s receipt of plaintiff’s claims. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff failed to make out a prima facie case entitling it to summary judgment is without merit. A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see [*2]Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (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]). In the instant case, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that she 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. Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms and the affidavit of defendant’s no-fault litigation examiner, in which receipt of the claims in question was conceded (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, plaintiff made a prima facie showing of its entitlement to summary judgment.

In support of its motion for summary judgment and in opposition to plaintiff’s cross motion for summary judgment, defendant asserted that it timely denied plaintiff’s claims based on plaintiff’s owner’s failure to appear for scheduled examinations under oath (EUOs). Plaintiff asserts that the EUO scheduling letters were ineffective since they were not sent to plaintiff but rather to an attorney. However, since defendant’s counsel received a letter from said attorney a short time before the initial EUO scheduling letter was mailed advising counsel that the attorney represented plaintiff with respect to EUO requests which were already pending, such a contention lacks merit (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 591 [2002]).

A review of the record indicates that defendant established that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing verification by EUO (cf. Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Inasmuch as the accident in which plaintiff’s assignor was allegedly injured occurred after the April 5, 2003 effective date of the emergency first amendment to revised Department of Insurance Regulation 68, contrary to plaintiff’s contention, defendant was not required to schedule the EUO within 30 days of receiving plaintiff’s claims but only within a reasonable time thereafter (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [App Term, 2d & 11th Jud Dists 2008]). Since the date selected for the EUO was reasonable and plaintiff did not appear for the scheduled EUO, defendant’s motion for summary judgment should have been granted since the action was premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; see also Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ime.htm).

In light of the foregoing, the judgment is reversed, the order entered November 15, 2007 [*3]vacated, plaintiff’s cross motion for summary judgment denied, defendant’s motion for summary judgment granted and complaint dismissed.

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 20, 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 H. Spergel, J.), entered January 9, 2008. The order, insofar as appealed from, 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 dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). In support of its cross motion, defendant submitted, inter alia, an affidavit of an employee of Independent Physical Exam Referrals, Inc. (IPER), the company which scheduled the IMEs. The District Court granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues only that defendant’s cross motion for summary judgment should have been denied because the affidavit executed by IPER’s employee was insufficient to establish that defendant’s request and follow-up request for an IME were mailed to plaintiff’s assignor.

Contrary to plaintiff’s contentions, the affidavit submitted by defendant was sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed to plaintiff’s assignor (see Chi Acupuncture, P.C. v Kemper Auto & Home Insurance Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is affirmed.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur. [*2]
Decision Date: February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,217.50.

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, inter alia, that there was an issue of fact as to the medical necessity of the supplies furnished by plaintiff. By order dated August 22, 2007, the court granted plaintiff’s motion for summary judgment. Judgment was subsequently entered pursuant to the order. The instant appeal by defendant ensued.

On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer was insufficient to establish that he 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. Accordingly, 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., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d [*2]44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 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 (Loren Baily-Schiffman, J.), entered October 29, 2007. The order, insofar as appealed from, denied plaintiff’s motion to, inter alia, compel the deposition of defendant.

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

In this action to recover assigned first-party no-fault benefits, plaintiff moved to, inter alia, compel the deposition of defendant. Defendant failed to oppose plaintiff’s motion or to seek a protective order. Accordingly, the motion should have been granted to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110, 112 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 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 (Kenneth P. Sherman, J.), entered September 4, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint denied.

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 of lack
of medical necessity. In opposition, plaintiff asserted, inter alia, that defendant did not establish that the subject denial of claim form was timely mailed. The court granted defendant’s motion. This appeal by plaintiff ensued.

The affidavit submitted by defendant’s litigation examiner failed to establish that defendant timely mailed its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed, since it merely stated that the denial of claim form was mailed and did not sufficiently set forth the steps which comprise defendant’s mailing practices and procedures (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). [*2]Accordingly, the order granting defendant’s motion for summary judgment is reversed and defendant’s motion is denied.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: February 11, 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 December 5, 2007. The order denied defendant’s motion for summary judgment.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint granted.

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 the services allegedly rendered to plaintiff’s assignor lacked medical necessity. Although the Civil Court found that defendant had timely denied the claims, the court denied defendant’s motion, apparently on the ground that the independent chiropractic examination report, upon which defendant had based its denials, was not in admissible form, notwithstanding the accompanying affidavit executed by the chiropractor. This appeal by defendant ensued.

Defendant demonstrated that it had timely mailed the denial of claim forms 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 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s independent chiropractic examination report, together with the affidavit of the chiropractor, provided a factual basis and medical rationale for the chiropractor’s [*2]opinion that the services rendered were not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; 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]). As plaintiff failed to present any evidence to refute that showing, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; A. KhodadadiRadiology, 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]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 09, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Shlomo S. Hagler, J.), entered March 14, 2007, which denied its motion to “revise” the award of attorney’s fees issued to plaintiff in this first party no-fault benefits action.

Per Curiam.
Order (Shlomo S. Hagler, J.), entered March 14, 2007 affirmed, with $10 costs, for the reasons stated by Shlomo S. Hagler, J., at Civil Court. (See 15 Misc 3d 766 2007). (See also LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290, 1292 [2007], lv granted 10 NY3d 717 [2008].)

THIS CONSTITUTES THE ORDER OF THE COURT.
Decision Date: January 29, 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 (Lee A. Mayerson, J.), entered July 24, 2006, deemed from a judgment of the same court entered September 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 31, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,970.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant contends that plaintiff failed to establish a prima facie case because plaintiff did not allege that defendant’s denial of claim forms were untimely. This contention
lacks merit since a plaintiff provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Payments are overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]). In the instant case, inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the court’s determination with respect thereto.

To the extent that defendant sought to demonstrate the existence of an issue of fact as to the medical necessity of the services rendered, the affidavit of defendant’s claims representative neither established actual mailing of the denials nor gave rise to a presumption that they were mailed because it did not set forth the standard office practice or procedure designed to ensure that items are properly addressed and mailed which was utilized in the office from which the subject denial of claim forms were allegedly mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, defendant is precluded from raising its proffered defense of lack of medical [*2]necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Consequently, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: January 26, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 27, 2006. The judgment, entered pursuant to an order granting defendant’s motion to dismiss the complaint and denying, as academic, plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126, dismissed the complaint and awarded defendant attorney’s fees and costs totaling $6,904.

Judgment reversed without costs, so much of the order as granted the branches of defendant’s motion which sought to dismiss the causes of action seeking to recover the sum of $593.94 for services allegedly provided by Dr. Patricia D’Imperio on April 5,
1999 and April 19, 1999, and the sum of $188.39 for services allegedly provided by Franklin Immediate Medical Care, P.C. on January 12, 1999, and so much of the order as awarded costs and attorney’s fees to defendant, vacated, the branches of defendant’s motion seeking dismissal of the aforesaid causes of action denied, and matter remanded to the court below for determination de novo of plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126.

Plaintiff commenced this action to recover the sum of $25,000, representing first-party no-fault benefits for medical expenses she allegedly incurred after she was injured in an automobile accident on November 9, 1998. The Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and awarded defendant attorney’s fees, finding that plaintiff had assigned her rights to collect no-fault benefits, and that, in any event, [*2]she did not plead or prove that she had paid her providers for the bills upon which she was suing, and did not demonstrate that payment was overdue. The court denied, as academic, plaintiff’s cross motion seeking to strike defendant’s answer pursuant to CPLR 3126. Judgment was entered, and plaintiff now appeals.

Defendant argued in its motion to dismiss (1) that plaintiff failed to state in her complaint that “a complete and proper proof of claim was submitted to the insurance company and the Insurance Company failed to pay or deny the claim within thirty (30) days,” (2) that defendant has no record of having received any notices of claims being made by plaintiff or documentation from plaintiff evidencing her out-of-pocket expenses
or direct payments to providers, and (3) that plaintiff lacks standing to sue because she has assigned all of her rights under the policy of insurance. We note that plaintiff is not required to prove that she issued payment for treatment (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

In opposition to defendant’s motion, plaintiff submitted, inter alia, NF-10 denial of claim forms, allegedly issued by defendant, denying claims for services rendered to plaintiff, submitted by Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., All County Open MRI & Diagnostic Radiology, and Dr. Patricia D’Imperio. To the extent that plaintiff seeks payment of the claims identified in her bill of particulars other than those submitted by these four providers, we find at the outset that plaintiff failed to defeat defendant’s CPLR 3211 (a) (7) motion (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530, 530 [2007] [where evidence is submitted on a CPLR 3211 [a] [7] motion to dismiss, the court may consider whether the plaintiff has a cause of action, rather than whether it has stated one]) by a showing that said claims were in fact submitted to defendant and that defendant failed to pay them within 30 days (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Where a provider commences suit to recover first-party no-fault benefits, the submission of an NF-10 denial of claim form, while not sufficient on its own to make out a no-fault provider’s prima facie case on its motion for summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), does establish prima facie that the insurer received the claims referenced therein as having been submitted by the provider (see e.g. Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), and that the insurer did not pay the claim. Accordingly, the submission of denial of claim forms must be deemed sufficient to defeat a CPLR 3211 (a) (7) motion to dismiss a provider’s action in which the defendant argues that the provider failed to allege that a claim was submitted and not paid within 30 days. The question before this court is whether, as in the instant case brought by the eligible injured person (EIP), the demonstration that an insurer received a claim from a provider for services rendered to such EIP, and that the claim was not paid, is sufficient to show that the plaintiff EIP has a cause of action for payment of that claim so that the insurer’s CPLR 3211 (a) (7) motion to dismiss should be denied.

The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance [*3]
Department Regulations [11 NYCRR] § 65-3.11 [a]). In the absence of an assignment, a claim submitted by a health care provider must be deemed to have been submitted on behalf of the individual who has the right to be paid under the no-fault regulations. An insurer seeking dismissal pursuant to CPLR 3211 (a) (7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment.

Defendant proffered documents that, it claims, demonstrate that plaintiff assigned her claims under the no-fault regulations to Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology. Defendants did not submit any documentation purporting to demonstrate that plaintiff assigned her claims for any services rendered by Dr. Patricia D’Imperio. As plaintiff demonstrated that claims totaling $593.94 were submitted by Dr. D’Imperio for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

On the other hand, defendant submitted documents that clearly assign plaintiff’s claims for services rendered by Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology to those providers, respectively. As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211 (a) (7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.

Defendant argues that the claim submitted by Franklin Immediate Medical Care, P.C., should be dismissed because plaintiff assigned that claim as well. We disagree. The document signed by plaintiff states:
“I hereby authorize payment directly to the above named medical provider of the automobile no-fault benefits otherwise payable to me but not to exceed the balance due of the medical provider’s permissible charges under Article 18 of the Insurance Law for services rendered. I understand that I am financially responsible to the medical doctor for charges not covered by this authorization and permitted under Article 18.”
Such an authorization is specifically addressed by the current no-fault regulations, which state that the “[e]xecution of an authorization to pay benefits shall not constitute or operate as a transfer of all rights from the eligible injured person to the provider” (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [1], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]). An assignment, pursuant to the current regulation, must state that it assigns “all rights, privileges and remedies” to the assignee (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [2], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]; Insurance [*4]Department Regulations Appendix 13 [NYS Form NF-3, NF-4, NF-5, NF-AOB]). Under the clear and unambiguous language of the current regulations, the above-quoted document is not an assignment. However, this language was added on December 31, 2001, and therefore was not in effect during the relevant time periods involved herein. Nevertheless, assignment language must show “the intention of the owner of a right to transfer it” (Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 612 [2004]), and we find that the document executed by plaintiff does not show her intention to transfer her rights under the No-Fault Law to Franklin Immediate Medical Care, P.C. As plaintiff demonstrated that a claim in the amount of $188.39 was submitted by Franklin Immediate Medical Care, P.C. for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

In view of the foregoing, the court below improperly awarded defendant attorney’s fees, as plaintiff has demonstrated that she has a cause of action and this litigation cannot be deemed frivolous (see Rules of the Chief Administrator [22 NYCRR] § 130-1.1).

Inasmuch as the lower court denied plaintiff’s cross motion to strike the answer pursuant to CPLR 3126 as academic in light of its dismissal of the complaint, the matter is remanded to the court below for a determination de novo of said cross motion.

Pesce, P.J., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment in the following memorandum:

In the first instance, it should be understood that plaintiff is an individual who was involved as a pedestrian in an automobile accident which occurred on or about November 9, 1998. As a result of that accident, Ms. Lopes sought a variety of medical treatments, and consequently she executed documents which, at the very least, authorized each of the providers of those health care treatments to obtain payment directly from the responsible no-fault insurance carrier.

Those health care providers who had rendered treatment to Ms. Lopes without receiving payment from her then submitted claims to the no-fault insurance carrier. Each of those claims was denied. The reason for the denial was the insurance carrier’s assertion that the eligible injured person, Ms. Lopes, failed to submit to independent medical examinations on four separate occasions. Some of those health care providers nevertheless commenced legal proceedings seeking payment.

Ms. Lopes also commenced her own direct action, the instant action, against the no-fault insurance carrier, demanding the payment of $25,000 for no-fault benefits and $20,000 for legal fees. In support of her claims, she submitted a bill of particulars purporting to establish bills for treatment that amount to slightly more than $4,500. There is no explanation as to how she or her attorney arrived at a $25,000 demand based upon approximately $4,500 of unpaid bills.

I note at the outset that in opposition to defendant’s motion to dismiss pursuant to CPLR 3211 (a) (7), plaintiff’s counsel asserted that various “documents” were attached to his affirmation when, in fact, they either were not attached at all, or, if attached, consisted of [*5]photocopies that are completely blacked out and therefore unreadable. Additionally, several purported bills that were attached to the bill of particulars did not include the service date in the photocopy submitted, or were simply handwritten pieces of paper and were not presented on a medical provider’s letterhead.

It is for these reasons and all of the facts within that I find it perfectly understandable why the motion court exercised its discretion in awarding counsel fees in favor of defendant in the sum of $6,904. Indeed, even a cursory reading of the majority opinion shows that, at best, plaintiff’s cause of action seeking $25,000 in compensatory damages and $20,000 in legal fees should be dismissed for failing to state a cause of action except for claims for $593.94 and $188.39, which amounts to a total of $782.33 out of $25,000. Indeed, those items are only allowed after a detailed analysis of the differences between an “authorization” and an “assignment,” a distinction plaintiff was clearly unaware of inasmuch as she demanded payment as to both. The majority’s finding that a claim filed by the provider for payment to it (the provider) may be deemed as a claim filed by the pro se plaintiff is unrealistic.

Here, the cause of action, as stated by Ms. Lopes in her complaint, contains the following facts she alleges establishes her claim:
“6. …The policy of insurance issued by defendant LIBERTY INSURANCE COMPANY, provided for payment of so-called no-fault benefits…’
7. The plaintiff was a pedestrian.
8. That plaintiff was involved in a no-fault’ accident on November 9, 1998 when the vehicle…insured by said defendant…was involved in a motor vehicle accident.
9. That solely as a result of that no-fault’ car accident, plaintiff sustained personal injuries.
10. That as a result…plaintiff sought hospital expenses, medical bills, loss of earnings…
11. That the defendant LIBERTY INSURANCE COMPANY has refused to pay and/or reimburse plaintiff for plaintiff’s hospital expenses, medical bills …”

I have included this reproduction of plaintiff’s complaint to emphasize the fact that there is no mention of any notice of claim being filed with the insurance carrier seeking payment. It certainly was not due to an understandable ignorance of the law or some oversight as occurs in complaints drafted by pro se litigants. Specifically, this complaint was drawn by an attorney. However, such fact is not of much significance. I submit the reason that there was no mention that a claim was filed by Ms. Lopes is simple: Ms. Lopes did not file any claims. [*6]

This failure, in and of itself, should prove to be fatal to the maintenance of this complaint.

Notwithstanding the foregoing, however, and for reasons to which I cannot subscribe, the majority herein finds that plaintiff not only does not have to assert this most elemental aspect of a no-fault cause of action, but also that plaintiff need not actually file the claim at all. While I have noted my disagreement therewith, both this Appellate Term and the Appellate Division, Second Department, have held that a plaintiff in a no-fault action need not provide any proof as to the validity of a claim (Uptodate Med. Servs., P.C. v Lumbermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists and dissenting op of Golia, J., 2008]; see e.g. Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The minimum requirement set by these courts is that a plaintiff need only make two assertions:

1) That a claim was filed, and

2) That payment is overdue.
By the holding in this case, the majority now provides that a plaintiff need only make one assertion, to wit, that payment is overdue. The majority reasons that it then can search the record and determine if any claim was filed. Indeed, the claim does not even have to come from the plaintiff, who is presumably seeking payment for the claim. It is now sufficient if the plaintiff’s medical provider has filed a claim, even though the claim was filed by the medical provider on its own behalf and not on behalf of the plaintiff.

For me, it is remarkable to find that an individual can commence an action for the nonpayment of a claim that the individual never submitted. Indeed, the individual may not even know whether any claim was ever submitted and certainly does not know when it was submitted or what information was included in the claim form. Further, I do not understand how the majority reaches the conclusion that the NF-10 denial of claim form by the insurance company relates to a certain claim of which plaintiff is unable to assert any knowledge.

Nevertheless, by implication, the majority’s ruling in effect will serve as a predicate for defendant insurer to be exposed to two lawsuits for the same claim, a claim that was denied here due to plaintiff’s refusal to submit to no less than four medical examinations by defendant’s doctor.In this case it is clear and not refuted that:

1. Ms. Lopes assigned (or authorized) her rights to receive payment to the medical providers;
2. She did not pay for any treatments;
3. She did not file any claims seeking payment for covered expenses;
4. She did not appear at any of the four independent medical examinations she was required to submit to as a condition precedent;
5. She or her attorney failed to annex certain exhibits that were stated to be annexed;
6. She or her attorney annexed obviously unreadable “blacked out” photocopies of other purported exhibits; and
7. Generally, she and her attorney filed a baseless action, as stated by the Court below.
All of the above occurred without plaintiff even knowing whether any claim was filed.

The majority, in support of its holding, asserts that pursuant to the regulations concerning “assignments” of benefits that were in effect at that time, there is a distinction to be made between a complete “assignment” of rights and a mere “authorization” to pay benefits directly to a provider.

As the majority has applied that proposition to this case, I disagree.

Instead, I am in accord with the reasoning of the Civil Court, Queens County case of Gingold v State Farm Ins. Co. (168 Misc 2d 62 [1996]), which relied on the 1981 Appellate Term, First Department case of Vasquez v Aetna Cas. & Sur Co. (NYLJ, Jan. 27, 1981, at 5, col 1). The Civil Court quoted the Appellate Term in Vasquez as stating, “We construe the hospital insurance form . . . authorizing payment directly to the hospital … as an assignment of first party benefits . . .” (Gingold, 169 Misc 2d at 64). The Gingold court went on to state that the assignee of a claim is the real party in interest and he alone can bring suit; the assignor loses control . . . when he makes the assignment” (id.).

In considering the import of the instant decision as it applies to the vast majority of auto accidents involving no-fault benefits, the typical eligible injured person seeks and obtains medical services shortly after the accident without any out-of-pocket expenses. The reason that the eligible injured person does not pay out-of-pocket expenses is that the medical provider, in general terms, accepts an “assignment” from its patient in lieu of payment. In other words, it is willing to provide medical services in expectation of subsequently receiving payment from the insurance carrier within 30 days of submission of the bill.

If the action by this plaintiff were to become commonplace, it would, I submit, ultimately lead to a medical provider’s refusing to provide medical treatment without first receiving immediate payment from the eligible injured person. If the provider did not require immediate payment, it may then subsequently discover that its patient, which it treated without immediate payment, has demanded and received payment from the insurance carrier for the services which the provider rendered. This is doubly troublesome in that, if medical providers refuse to provide treatment in exchange for an “assignment,” then the eligible injured person must not only pay up front, he/she must also seek reimbursement from the insurance carrier and comply with all the complex rules and regulations of the No-Fault Law.

It is also small comfort to the insurance company to know that after making payment to either the provider pursuant to the authorization or to the eligible injured person pursuant to the majority decision herein, that when it is sued by the one or the other upon nonpayment, it would have a valid defense of payment. Despite this valid defense, the lawsuit would nevertheless necessitate the opening of a litigation file by the insurance carrier with the associated expense of an employee’s time and loss of productivity; the insurance carrier would have to hire an attorney [*7]to answer the complaint and subsequently move for summary judgment with the associated expenses of attorney’s fees and court costs; it must also restrict and separately maintain certain of its liquid assets as a reserve against the file and even if the reserve is set at zero, it would nevertheless have to justify that to the Insurance Department at an audit — an unnecessary and protracted circumstance.

Further, I submit this could only lead to additional litigation, not only additional costs and fees associated with such litigation, but also increased insurance carrier rates vis-a-vis the public and, certainly, needless use of additional court resources, all of which negate the intended and speedy purpose of the No-Fault Law.

It is for all these reasons that I agree with and support the Civil Court’s granting of defendant’s motion to dismiss and its awarding defendant attorney’s fees and costs in the amount of $6,904 as against this plaintiff.

I vote to affirm.

Decision Date: January 26, 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 (Diccia T. Pineda-Kirwan, J.), dated November 16, 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.

At trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518. The court reserved decision. Plaintiff rested without calling any further witnesses. Defendant moved to dismiss the complaint due to plaintiff’s failure to make a prima facie case. The court reserved decision on that motion as well. After reviewing the parties’ submissions, the court dismissed the complaint, finding that plaintiff failed to make a prima facie case.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: January 09, 2009