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 (Arthur F. Engoron, J.), entered June 28, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit from an officer of plaintiff and various documents annexed thereto. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to demonstrate personal knowledge of the facts set forth therein and that, as a result,
plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant’s denials were timely and were sufficient to raise a question of fact as to medical necessity. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 21, 2007

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 (Bernice Daun Siegal, J.), entered April 6, 2005, deemed an appeal from a judgment entered June 29, 2006 (CPLR 5520 [c]). The judgment, entered pursuant to the April 6, 2005 order granting plaintiff’s motion for reargument and, upon reargument, granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,424.81.

Judgment reversed without costs, so much of the order as, upon granting plaintiff’s motion for reargument, granted 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 denied plaintiff’s motion for summary judgment. Thereafter, the court granted plaintiff’s motion for reargument and, upon reargument, granted plaintiff’s motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate 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 corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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]; [*2]Dan
Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

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

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: November 21, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered April 17, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 21, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered March 6, 2006, deemed an appeal from the judgment entered on May 3, 2006 (see CPLR 5501 [c]) . The judgment, entered pursuant to the March 6, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,696.41.

Judgment reversed without costs, so much of the order entered March 6, 2006 as granted 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’s motion for summary judgment was granted and a judgment was entered pursuant thereto. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment. Accordingly, the judgment in favor of plaintiff is reversed, the order, insofar as it granted plaintiff’s motion for summary judgment, is vacated and plaintiff’s motion for summary judgment is denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur. [*2]
Decision Date: November 21, 2007

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, Richmond County (Peter Paul Sweeney, J.), entered April 20, 2006, deemed an appeal from a judgment entered May 5, 2006 (CPLR 5520 [c]). The judgment, entered pursuant to the April 20, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,600.

Judgment affirmed without costs.

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 on the ground that prior to the commencement of the subject action, a related no-fault
matter arising out of the same accident was submitted to arbitration. Defendant contended that the election to arbitrate precluded this action (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]). The court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. A judgment was subsequently entered.

Upon a review of the record, we find that defendant failed to establish that the instant action was barred. Defendant did not offer evidence to support its contention that there was a prior election by plaintiff to arbitrate a claim for no-fault benefits pertaining to plaintiff’s assignor for injuries allegedly sustained in the accident which gave rise to the claims at issue herein. [*2]

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s
establishment of its prima facie case, this court need not pass on the propriety of the implicit determination of the court below with respect thereto. The burden, therefore,
shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment, defendant asserted that the amount sought by plaintiff exceeded the amount set forth in the applicable fee schedule and that it timely denied plaintiff’s claims on the ground of lack of medical necessity (11 NYCRR 65-3.8 [c]). However, defendant failed to establish that the denials were timely mailed since the affidavit of defendant’s representative did not state that he personally mailed the denials or set forth defendant’s standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Moreover, contrary to the dissent, we find no concession by plaintiff in its submissions as to the timeliness of the denials.

Since defendant failed to establish that the claims were denied within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) including its proffered defenses of lack of medical necessity and that the
fees charged were excessive (see Benson Med., P.C. v Progressive Northeastern Ins.
Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51427[U] [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to reverse the judgment, vacate so much of the order as granted plaintiff’s motion for summary judgment and deny plaintiff’s motion for summary judgment.

I disagree with the majority opinion and vote to reverse the judgment and vacate the part of the order which grants plaintiff’s motion for summary judgment on the ground that defendant has rebutted the prima facie showing of plaintiff. Lack of medical necessity is a defense to an action for recovery of no-fault benefits, and may be asserted by the insurer provided that there has been a timely denial of the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). It is undisputed that defendant issued timely denials as evidenced by the denial of claim forms which were submitted as part of plaintiff’s moving papers (see generally [*3]A.B. Med. Servs. PLLC v. Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]). Indeed, plaintiff concedes timeliness by its submissions and does not raise the issue either below or on appeal. Thus, the question presented here is not the sufficiency of the affidavit of mailing.

Rather, plaintiff moves for summary judgment solely on the grounds that defendant unreasonably denied the claims. Inasmuch as it is undisputed that defendant’s denials of benefits were timely made within the prescribed statutory period, and the defense of lack of medical necessity having been sufficiently asserted through submissions in admissible form to rebut the prima facie showing (see Liberty Queens Med., P.C. v Liberty Mutual Insurance Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists]), plaintiff’s motion for summary judgment should not have been granted.

However, I am in agreement with the majority’s opinion that defendant’s cross motion for summary judgment was properly denied. Defendant failed to submit any admissible proof to establish that this action was barred.
Decision Date: November 21, 2007

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 (Arthur F. Engoron, J.), entered June 30, 2006. The order, insofar as appealed from, upon finding for all purposes pursuant to CPLR 3212 (g) that plaintiff established a prima facie case, denied plaintiff’s motion for summary judgment on the ground that triable issues of fact exist.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground that defendant’s defenses were precluded by a defective denial of claim form. Defendant did not oppose the motion. The court granted plaintiff’s unopposed motion to the extent of holding that plaintiff made a prima facie showing for all purposes pursuant to CPLR 3212 (g), but the court nevertheless found that defendant’s denial of claim form raised triable issues of fact. This appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal concerning plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the court’s determination with respect thereto. Consequently, having found that plaintiff made a prima facie showing, since defendant did not submit any opposition, plaintiff’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an
assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations [*2]promulgated thereunder.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

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 (Richard Velasquez, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In
opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case.

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

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered February 16, 2006, which, inter alia, granted plaintiff’s cross motion for summary judgment to the extent of awarding it the principal sum of $587.90.

Per Curiam.

Order (Anil C. Singh, J.), entered February 16, 2006, modified to deny plaintiff’s cross motion for summary judgment in its entirety, and as modified, affirmed, without costs.

Plaintiff seeks to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. Although plaintiff moved for summary judgment on both claims, its motion was granted only to the extent of awarding plaintiff the sum of $587.90 on its claim for services rendered on April 25, 2002. Inasmuch as plaintiff’s submissions were insufficient to establish that it mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations (see 11 NYCRR 65.12[e]), its motion for summary judgment should have been denied in its entirety.

In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted the affidavit of an employee of the entity that oversees the mailing of its billings. The affidavit, dated December 30, 2005, stated that the employee mailed the bill for services rendered on April 26, 2002 on June 3, 2002. Although the affidavit indicated that the affiant personally mailed the bill to defendant, it did not explain the office mailing practice of her employer nor did it state the basis for the affiant’s recollection, three years later, of mailing the bill. Since the affidavit was insufficient to give rise to the presumption of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]), and defendant has alleged that it received plaintiff’s claim outside the prescribed 180-day period, plaintiff’s cross motion for summary judgment on the $587.90 claim should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: October 31, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated September 23, 2005, and from a judgment of the same court entered March 31, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered upon the order of September 23, 2005, awarded plaintiff the principal sum of $21,500.

Appeal from order dismissed.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 [*2]NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff, and various documents annexed thereto. The affirmation executed by plaintiff stated in a conclusory manner that the documents attached to his motion papers were his business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff failed to lay a proper foundation for the documents annexed to his moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to his moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff was insufficient to establish that he possessed personal knowledge of his office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to his moving papers, plaintiff failed to make a prima facie showing of his entitlement to summary judgment since he stated that his affirmation was based upon his review of said records (see 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 reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In light of the foregoing, we do not address the parties’ remaining contentions. Pesce, P.J., Rios and Belen, 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, Kings County (Jack M. Battaglia, J.), entered May 25, 2006. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, 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. The court below granted plaintiff’s motion to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s employee, submitted in support of the 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 a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Turning to the merits of defendant’s cross motion for summary judgment, the court below [*2]correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not sufficiently establish that it mailed the verification requests and follow-up verification requests or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, defendant did not demonstrate that plaintiff’s causes of action were premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, to the extent defendant denied the claims based on fraud, the affidavits submitted by defendant were inadequate to establish as a matter of law “that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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