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 October 26, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment upon its claims seeking the sums of $240.20 and $1,201.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claims for $240.20 and $1,201 and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Insofar as is relevant to this appeal, defendant
opposed the motion, asserting that it timely denied plaintiff’s claims seeking the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

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 implicit determination of the court below with respect thereto.

While defendant asserted that it timely denied plaintiff’s claims for the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two scheduled IMEs, defendant failed to establish by proof in admissible form that the IME requests were timely mailed to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v [*2]Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.
Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on its claims for $240.20 and $1,201 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 31, 2008

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 July 12, 2007. The order, insofar as appealed from, granted plaintiff’s motion to vacate an order granting, on plaintiff ‘s default, a motion by defendant for summary judgment, and, upon such vacatur, denied defendant’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought to vacate the order granting defendant’s motion for summary judgment and, upon such vacatur, to deny defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court below granted defendant’s motion for summary judgment on default. Thereafter, plaintiff moved, inter alia, to vacate the order entered upon its default and, upon such vacatur, to deny defendant’s motion for summary judgment. Plaintiff’s counsel alleged in the moving papers that the default was due to law office failure. By order entered July 7, 2007, the Civil Court, insofar as relevant to this appeal, granted plaintiff’s motion to vacate the order entered upon its default and, upon such vacatur, denied defendant’s motion for summary judgment.

To be relieved of its default, plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). The conclusory, undetailed and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). Plaintiff’s counsel offered no explanation in the motion papers as to why he failed to submit written opposition to the motion or appear on the adjourned date of the motion. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought to vacate the order entered upon its default and, upon [*2]such vacatur, to deny defendant’s motion for summary judgment is denied.

In view of the foregoing, we pass upon no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order and decision (one paper) of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated May 16, 2007. The order and decision denied plaintiffs’ oral motion at trial for a finding that a prior order, which provided that plaintiffs’ motion for summary judgment made a prima facie showing, dispensed with plaintiffs’ need to establish a prima facie case at trial, and dismissed the complaint upon plaintiffs’ failure to present evidence following the denial of their motion.

Appeal dismissed.

When the instant action to recover assigned first-party no-fault benefits was called for trial, plaintiffs orally moved for a determination that a prior order, which stated that plaintiffs’ motion for summary judgment made a prima facie showing (although
plaintiffs’ motion was ultimately denied on the ground that an issue of fact had been raised), dispensed with plaintiffs’ need to establish a prima facie case at trial. The court denied plaintiffs’ motion and then dismissed plaintiffs’ complaint because plaintiffs presented no evidence. No judgment was entered. This appeal by plaintiffs from the court’s order and decision ensued.

To the extent the court denied plaintiffs’ oral motion, no appeal as of right lies from an order which does not decide a motion made on notice, and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent the court dismissed plaintiffs’ complaint, no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]). [*2]

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008

[*1]

Supreme Court, Appellate Term, Second Department, December 31, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

{**22 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the two claim forms that are the subject of this action, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to defendant’s motion was based upon oral decisions set forth in trial transcripts, in three unrelated actions against another insurance company, in which the court found that plaintiff’s treating providers were employees. The court granted defendant’s motion, finding that plaintiff submitted claim forms that stated that the billed-for services were rendered by an independent contractor and implicitly holding that plaintiff was bound by the claim forms it submitted. Plaintiff appeals, arguing that an insurer may not be awarded summary judgment based upon the defense that the billed-for services were rendered by an independent contractor. Plaintiff argues further that the oral decisions by other judges of the same court contained in the trial transcripts are evidence that the treating providers were employees, thereby rebutting the information contained in plaintiff’s own claim forms and raising a triable issue of fact.

Contrary to plaintiff’s contention, the fact that health care services sued for by a professional corporation were rendered by an independent contractor is a proper basis upon [*2]which to award a no-fault defendant summary judgment dismissing the complaint made against it (see Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137[A], 2008 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists 2008]). While plaintiff claims that Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]) stands for the proposition that a plaintiff may recover even if services were rendered by an independent contractor, such an interpretation lacks merit.

A provider demonstrates its entitlement to collect assigned first-party no-fault benefits by proving the submission of its 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]). Payment is overdue “if not paid within thirty days after the claimant supplies proof of{**22 Misc 3d at 72} the fact and amount of loss sustained” (Insurance Law § 5106 [a]). A claim form seeking reimbursement for services rendered by an independent contractor does not supply proof of a loss, because

“where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a ‘provider’ of the medical services rendered within the meaning of [11 NYCRR 65-3.11 (a)] and is therefore not entitled to recover ‘direct payment’ of assigned no-fault benefits from the defendant insurer” (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]).

In the case at bar, the claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant. Plaintiff did not submit bills that entitled it to payment, and correction of the defect involved herein should not be permitted once litigation has been commenced (see generally Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007] [litigation that was commenced prior to payment becoming overdue was premature and the cause of action was dismissed]). The independent contractor defense is nonprecludable (see Rockaway Blvd. Med. P.C., 9 Misc 3d at 54). An insurer should be able to rely on the assertions in the claim form, and, in keeping with the aim of “provid[ing] substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), should be able to handle a claim for services rendered by an independent contractor accordingly without engaging in further consideration of the claim. An insurer is not obliged to issue a denial in order to assert the nonprecludable, independent contractor defense. Consequently, if a provider were to be permitted to demonstrate during litigation that the claim form was incorrect and services were, in fact, rendered by an employee, not only would the insurer, which exercised its option not to expend further efforts to defend a facially meritless claim, have lost its opportunity to conduct meaningful claims verification, but also its decision not to issue a denial would result in its preclusion from introducing most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Moreover, upon a court’s finding that services were rendered by{**22 Misc 3d at 73} an employee, and not an independent contractor as stated on the claim form prepared by the provider, an award of interest beginning to accrue 30 days after the submission of the claim form, as mandated by the no-fault regulations (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; § 65-3.9 [a]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007]), would be inequitable. Furthermore, an insurer might have [*3]timely paid a claim, had the claim form prepared by the provider not stated that the services were rendered by an independent contractor, thereby avoiding the need to retain counsel to defend an action that might have been avoided. If the provider is allowed to amend the claim form, on the other hand, plaintiff would be entitled to recover its attorney’s fees from defendant for unnecessary litigation (see Insurance Department Regulations [11 NYCRR] § 65-3.10 [a]).

In view of the foregoing, the Civil Court properly granted defendant’s motion to dismiss the complaint (but see Atlantis Med., DC v Liberty Mut. Ins. Co., 19 Misc 3d 131[A], 2008 NY Slip Op 50584[U] [App Term, 1st Dept 2008]).

We note that, under appropriate circumstances, a provider who has submitted a claim form that improperly designates the treating provider as an independent contractor could, upon realizing its mistake, submit a new claim form with the proper designation along with “written proof providing clear and reasonable justification for the failure” to submit the claim within 45 days of the rendering of services (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [Proof of Claim]). We do not pass upon whether the circumstances presented in this case would constitute “reasonable justification” for plaintiff’s failure to timely submit a proper claim.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), dated June 29, 2007, deemed from a judgment of said court entered November 8, 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 served a notice to admit upon defendant and defendant served a response. At trial, plaintiff, without calling any witnesses, contended that it made a prima facie showing because its notice to admit sought admission of all facts relevant to its prima facie case and defendant’s objections lacked merit. Plaintiff’s notice to admit, to which the claim form at issue was annexed, and defendant’s response were admitted into evidence, and the court heard oral arguments. Defendant did not call any witnesses, but argued that plaintiff failed to make a prima facie showing. The court held, inter alia, that plaintiff’s notice to admit failed to establish a prima facie case. Judgment was entered dismissing the complaint, and this appeal by plaintiff ensued.

“A matter deemed admitted pursuant to a notice to admit . . . is still subject to all pertinent objections to admissibility which may be interposed at the trial’ (CPLR 3123 [b]), and it is not necessarily of such probative value as to relieve a party of the necessity of establishing its right to ultimate relief upon the trial” (Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). In Bajaj, this court held that where a party seeks to satisfy its burden of proof at trial by reference to a document, testimony is required to establish the admissibility of the document. In the instant case, as in Bajaj, plaintiff, by not calling a witness, failed to lay a foundation to demonstrate that its claim form, a necessary part of a provider’s prima facie case [*2](A.M. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists 2005]), was admissible as a business record (see Art of Healing Medicine, P.C. v Traveler’s Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008]; Bajaj, 18 Misc 3d 25; 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.

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

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 04, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 25, 2007. The order denied plaintiff’s motion for leave to enter a judgment after settlement, pursuant to CPLR 5003-a, and for leave to include in the judgment a provision for additional interest, attorney’s fees and costs.

Order affirmed without costs.

In November of 2003, plaintiff provider commenced this action to recover assigned first-party no-fault benefits in the sum of $1,879, plus statutory interest and attorney’s fees. The parties entered into a stipulation of settlement in November of 2006. In August of 2007, plaintiff moved, pursuant to CPLR 5003-a, for an order granting it leave to enter a judgment after settlement, and providing that the judgment include provisions for additional interest and costs. The court denied the unopposed motion, and this appeal by plaintiff ensued.

CPLR 5003-a, enacted to encourage the prompt payment of damages in settled actions, authorizes a settling plaintiff to enter judgment against a settling defendant who fails to pay all sums as required by the statute (see Cunha v Shapiro, 42 AD3d 95 [2007]). Insofar as is relevant to the instant case, CPLR 5003-a (a) provides that the settling defendant “shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (emphasis added). The term “tender,” as used in the statute, is defined as meaning “either to personally deliver or to mail, by registered or certified mail, return receipt requested” (CPLR 5003-a [g]). Should the settling defendant fail to make prompt payment of all sums due, the unpaid plaintiff “may enter judgment, without further notice, against such settling defendant who has not paid” (CPLR 5003-a [e]). [*2]

In order to avail itself of the enforcement mechanism of CPLR 5003-a, an unpaid settling plaintiff must adhere to the requirements of the statute by tendering a general release and a stipulation of discontinuance and by waiting 21 days following such tender (see Cunha v Shapiro, 42 AD3d 95 [2007]; see also Dobler Chevrolet v Board of Assessors, 2001 NY Slip Op 50013[U] [Sup Ct, Nassau County 2002]). In the instant case, plaintiff’s submissions in support of its motion were insufficient to prove its tender to defendant of the release and stipulation of discontinuance. Accordingly, the order denying plaintiff’s motion is affirmed, albeit on different grounds. We pass on no other issue.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 03, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered September 19, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment.

Order, insofar as appealed from, 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 based upon the assignor’s failure to appear for independent medical examinations (IMEs). In opposition, plaintiff argued only that defendant failed to establish that the IMEs were scheduled to occur at an address at which the doctor maintained an office. The court below granted defendant’s motion for summary judgment dismissing the complaint, and the instant appeal by plaintiff ensued.

Since plaintiff raised no issue in the court below, or on appeal, with respect to the timeliness of defendant’s NF-10 denial of claim forms, which denied plaintiff’s claims on the ground that plaintiff’s assignor failed to attend scheduled IMEs, we do not pass upon the propriety of the implicit determination of the court below with respect thereto. Contrary to plaintiff’s contention, the affidavit submitted by the chiropractor who was to perform an IME of plaintiff’s assignor established that the assignor failed to appear for an IME in her office, which was located at the address set forth in the IME scheduling letters (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff’s argument is unsupported by the record.

Plaintiff’s remaining contentions are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]) and, in any event, lack merit (see e.g. Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co., 15 Misc 3d 130[A], 2007 NY Slip Op 50639[U] [*2][App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 03, 2008

[*1]

Supreme Court, Appellate Term, Second Department, December 3, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Benjamin Sharav of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola (Mitchell S. Lustig of counsel), for respondent.

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

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plaintiff’s failure to prosecute the action. Plaintiff opposed the motion, contending that defendant’s 90-day demand was defective and therefore a nullity because it did not contain “a caption setting forth the name of the court, the venue . . . and the index number of the action” (CPLR 2101 [c]). The court below granted the motion to dismiss, and this appeal by plaintiff ensued.

Once a 90-day demand is received by a plaintiff, the plaintiff must either comply with the demand by filing a note of issue or a notice of trial within 90 days (CPLR 3216 [c]), or must move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; Rubin v Baglio, 234 AD2d 534 [1996]). Since plaintiff failed to do either of these, it was required, in opposition to the motion to dismiss, to establish a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; Taylor v Gari, 287 AD2d 557 [2001]).

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In addition to its failure to offer any reasonable excuse{**22 Misc 3d at 45} for the delay, plaintiff also failed to show that it had a meritorious cause of action. Accordingly, the judgment dismissing the complaint is affirmed.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

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. Insofar as is relevant to this appeal by defendant, the court properly denied defendant’s cross motion for summary judgment, as defendant’s proof failed to eliminate all triable issues of material fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant failed to establish prima facie that its claim denials were timely, thereby permitting it to interpose the precludable defenses of untimely notices of claim and proofs of claim. In any event, defendant failed to demonstrate as a matter of law that such defenses have merit. With respect to defendant’s second ground for summary judgment, its defense based on lack of coverage, while defendant’s documentation established that the vehicle occupied by plaintiff’s assignor in the underlying motor vehicle accident was not insured by defendant under the policy number claimed, defendant failed even to allege, much less prove prima facie, that it did not insure that vehicle on the date of the loss.

Accordingly, defendant failed to shift the burden and, thus, the order denying its cross motion for summary judgment is affirmed.

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

Golia, J., concurs in a separate memorandum: [*2]

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I disagree with its finding that “[d]efendant failed to establish prima facie that its claim denials were timely . . . .”

To the contrary, I find that the affidavit by defendant’s litigation examiner was sufficient to establish timely mailing by someone with personal knowledge of the office practices as well as having personal responsibility to assure that those practices were carried out.
Decision Date: December 02, 2008

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 10, 2007. The order denied plaintiffs’ motion for partial summary judgment.

Order modified by providing that plaintiffs’ motion for partial summary judgment is granted to the extent of awarding plaintiff A.B. Medical Services, PLLC summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36; plaintiff LVOV Acupuncture, P.C. summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98; and plaintiff RW Health Plus Chiropractic, P.C. summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below for the calculation of statutory interest and attorney’s fees thereon, and for further proceedings on all remaining claims.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for partial summary judgment on various claims, and defendant opposed the motion. The court below denied plaintiffs’ motion. This appeal by plaintiffs ensued. [*2]

Since defendant did not argue in the court below that plaintiffs’ medical biller and billing manager failed to establish that he possessed personal knowledge of plaintiffs’ practices and procedures so as to lay a foundation for the admission, as business records, of plaintiffs’ documents, we do not pass on the propriety of the determination of the court below with respect thereto (see Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]; 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]).

The record shows that defendant failed to pay or deny the claims by A.B. Medical Services, PLLC (A.B. Med.) seeking the sums of $230.10 and $71.40 within the 30-day prescribed period and that it also failed to establish that such period was extended by its issuance of a timely request for verification. Consequently, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), with exceptions not relevant to these claims. As a result, defendant failed to establish the existence of a triable issue of fact with respect to said claims, and A.B. Med. was entitled to summary judgment thereon.

An insurer’s 30-day period in which to either pay or deny a claim may be extended where the insurer submits, within 15 business days of its receipt of the NF-3 claim form, a request for additional verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Since the affidavit of defendant’s no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant’s time to pay or deny the claims was tolled (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]; cf. Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]). As a result, the claims by plaintiff A.B. Med. in the sums of $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, and the claims by plaintiff RW Health Plus Chiropractic, P.C. (RW Health) in the sums of $290.64, $269.60 and $134.80 are overdue (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), and A.B. Med. and RW Health are entitled to summary judgment upon said claims (see Westchester Med. Ctr., 45 AD3d 676).

Plaintiffs’ contention that defendant’s submissions from the acupuncturist who performed the peer reviews were insufficient to raise a triable issue of fact with respect to the claims submitted by LVOV Acupuncture, P.C. (LVOV) is correct. Since the acupuncturist’s peer review reports were unsworn, the reports were of no probative value (see Dowling v Mosey, 32 AD3d 1190 [2006]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Accordingly, defendant’s submissions failed to raise a triable issue of fact as to medical necessity with respect to LVOV’s claims in the sums of
$650.50, $248.28 and $435.98, and LVOV is entitled to summary judgment upon said claims.

However, contrary to plaintiffs’ contention, defendant, through the submission of the [*3]affidavit of its no-fault litigation supervisor and affirmed peer review reports established that the claims by A.B. Med. seeking the sums of $604.24 and $644.50, and by RW Health seeking the sums of $303.30 and $202.20 were properly and timely denied based upon a lack of 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 Dists 2007]; Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). As a result, A.B. Med. and RW Health are not entitled to summary judgment upon said claims.

Although plaintiffs argue that defendant’s denial of a claim by A.B. Med. seeking the sum of $182.37 was untimely, plaintiffs’ exhibits included a copy of said denial of claim form, which is timely on its face and which denied the claim based upon an affirmed peer review report which was also attached to plaintiff’s moving papers. Given the affidavit of defendant’s no-fault litigation supervisor setting forth defendant’s standard office practice and procedure for the generation and mailing of defendant’s denial of claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff is not entitled to summary judgment upon said claim.

In view of the foregoing, plaintiffs’ motion for summary judgment is granted to the extent of awarding A.B. Med. summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, LVOV summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98, and RW Health summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below 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, and for all further proceedings on the remaining claims.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: November 26, 2008