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

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 October 6, 2006, deemed from a judgment of said court entered December 26, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed with $25 costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they were sufficient to establish plaintiff’s prima facie case. Defendant objected and cross-moved for a directed verdict dismissing the complaint. The court granted defendant’s cross motion, holding that plaintiff’s notice to admit was improper because it sought information going to the heart of the matter. A judgment was entered dismissing the complaint. This appeal by plaintiff ensued.

An admission that defendant received plaintiff’s claim form is not a concession of the facts set forth in said claim form (Bajaj v General Assur. Co., 18 Misc 3d 25, 28 [App Term, 2d & 11th Jud Dists 2007]; 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]). While defendant acknowledged that it received plaintiff’s claim form and that a true copy was annexed to plaintiff’s notice to admit, it remained plaintiff’s burden to lay a sufficient foundation to establish that the claim form is admissible pursuant to the business records exception to the hearsay rule to prove the truth of the matters asserted therein (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], affg 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff failed to proffer such [*2]proof, the court properly held that plaintiff failed to make a prima facie showing (see id.; Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is affirmed (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).

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

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 09, 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.), dated August 1, 2007, deemed from a judgment of said court entered September 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 1, 2007 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,745.18.

Judgment reversed without costs, order dated August 1, 2007 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered in September and October 2003, plaintiff moved for summary judgment. Defendant cross-moved for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel, and, upon such amendment, for summary judgment dismissing the complaint. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

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 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 a proposed amendment since leave to amend should not be granted where the proposed amendment is totally without merit or is palpably insufficient as a [*2]matter of law (see Ingrami, 45 AD3d at 808; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]).

Defendant sought leave to interpose the affirmative defenses of res judicata and 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 from August 2003 through January 14, 2004, in which proceeding the arbitrator had 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 prejudice or surprise as a result of the proposed amendment to defendant’s answer (see McCaskey, Davies & Assocs. 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.

Under the doctrine of collateral estoppel, a party is precluded from relitigating an issue which has been previously decided against it in a prior proceeding where it had a full and fair opportunity to litigate the issue (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). “The two elements that must be satisfied to invoke the doctrine of 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, 455 (1985)])” (Luscher v Arrua, 21 AD3d 1005, 1007 [2005]). “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 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.

Accordingly, the judgment is reversed, the order dated August 1, 2007 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for leave to amend its answer, and, upon such amendment, for summary judgment dismissing the complaint [*3]is granted.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 09, 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 (Robert D. Kalish, J.), dated January 8, 2007, deemed from a judgment of the same court entered November 9, 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, plaintiff offered a notice to admit and an affirmation made by defendant’s attorney in order to prove its prima facie case at trial. Plaintiff then rested without calling any witnesses. The court found that plaintiff, having failed to produce a witness, failed to make its prima facie case, and dismissed the complaint. For the reasons set forth in Bajaj v General Assur. (18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]), we affirm the judgment.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 09, 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 (Kathryn E. Freed, J.), entered June 22, 2006, deemed from a judgment of the same court entered August 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 22, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,757.32.

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, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, 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 a prima facie case. We agree. The affidavit submitted by plaintiff’s officer was insufficient to demonstrate 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 44 [App Term, 2d & 11th Jud Dists 2006]). [*2]Consequently, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: January 09, 2009

[*1]

Supreme Court, Appellate Term, Second Department, January 9, 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. Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for respondent.

{**23 Misc 3d at 6} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order dated June 28, 2007 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of{**23 Misc 3d at 7} medical necessity. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

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

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto (see CPLR 2001; Matter of Goffredo v City of New York, 33 AD3d 346 [2006]; Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645 [1999]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700 [1983]). Accordingly, the affidavits submitted by defendant were sufficient to establish that its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practice and procedure designed to ensure that items are properly addressed and mailed (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]).

The papers submitted by defendant in support of its cross motion, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which proof was unrebutted. As a result, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (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 either lack merit or are improperly raised for the first time on appeal.

Accordingly, the judgment is reversed, the order dated June 28, 2007 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Rios, 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, Queens County (Diane A. Lebedeff, J.), entered March 8, 2007, deemed from a judgment of the same court entered April 26, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 8, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,948.88.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, contending, inter alia, that issues of fact exist as to whether plaintiff timely submitted its claims to
defendant. The court granted plaintiff’s motion for summary judgment, finding that defendant waived its defense of untimeliness, since defendant failed to advise plaintiff that the claim would be reconsidered upon a showing of impossibility to timely submit the claims. This appeal by defendant ensued.

The affidavit of defendant’s claims representative submitted in opposition to plaintiff’s motion, and the denial of claim forms annexed thereto, demonstrate that defendant denied a number of plaintiff’s claims on the ground that they were not timely submitted (see generally Insurance Department Regulations [11 NYCRR] § 65.12). However, since none of the denial of claim forms correspond to the claim forms upon which plaintiff seeks summary judgment, defendant failed to establish that it timely denied the subject claims. As a result, defendant failed to raise a triable issue of fact with respect to the claims at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the judgment is affirmed, albeit on other grounds. [*2]

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 08, 2009