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 (Anna Culley, J.), entered June 6, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to its assignor in the sum of $3,836.20. 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 (Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists]). In the case at bar, plaintiff’s claim form states that the treating professionals were independent contractors. Under the circumstances, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: January 2, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 27, 2005. The order denied plaintiff’s motion for summary judgment and, in effect, granted defendant’s cross motion to the extent of severing and dismissing three of plaintiff’s five claims (in the sums of $425.44, $101.10 and $404.40).

Cross appeal by defendant dismissed as abandoned.

Order, insofar as reviewed, modified by granting plaintiff’s motion for summary judgment as to its claims for $269.60 and $33.70 and matter remanded to the court
below for a calculation of statutory interest and an assessment of attorney’s fees thereon; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided plaintiff’s assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s admissions of receipt cured the deficiencies, if any, in plaintiff’s proof of mailing (Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists [2006]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). The burden shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The record supports the determination of the court below that, with respect to the claims [*2]in the sums of $425.44, $101.10, and $404.40, defendant validly (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]) sought verification of the assignor’s social security number, a request we find appropriate in that such information must be provided on the statutory NF-2 application for no-fault benefits form, “and made the requisite follow-up requests” (Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co., 12 Misc 3d 145[A], 2006 NY Slip Op 51439[U] [App Term, 2d & 11th Jud Dists]). Plaintiff’s failure to produce the verification requested merited defendant’s refusal to pay the claims, and for that matter, to take any action on the claims, rendering plaintiff’s lawsuit thereon premature (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided . . . [and when a claimant] fails to respond to a verification request . . . any claim for payment . . . is premature”]; see also A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term, 2d & 11th Jud Dists 2005]), thereby warranting the claims’ severance from the remainder of the action and their dismissal (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

However, we find that plaintiff should have been granted summary judgment as to the remaining claims for $269.60 and $33.70. Although defendant issued timely denials on the ground of lack of medical necessity based on a report of an independent medical examination (IME), the denial forms contained no facts satisfying the statutory requirement that the insurer state the reason for the denial “fully and explicitly” on the claim denial form (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 96 [App Term, 9th & 10th Jud Dists 2004]), and to the degree necessary to “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (New York University Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006] [quotation marks and citation omitted]). A timely denial does not avoid the preclusion sanction “where said denial is factually insufficient, conclusory or vague” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). While an insurer is not required to attach a peer review report to its denial of claim form (see 11 NYCRR 65-3.8 [b] [4]), where the peer review is not attached the form itself must set forth, with the requisite particularity, the factual basis and medical rationale for the denial (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]), or at the very least, the insurer must supply claimant with a peer review report within the same period within which the denial is due. The same rules apply to denials based on an IME report (Contempo Med. Care, P.C. v Travelers Indem. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51338[U] [App Term, 2d & 11th Jud Dists]). Defendant failed to submit to plaintiff the IME report within the statutory claim determination period. Since the said period was not otherwise tolled as to the two aforementioned claims (SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists), defendant is precluded from asserting the defense (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra). Absent any defense to the two claims that survived the preclusion sanction, plaintiff is awarded summary judgment thereon and the matter is remanded to the court below for a calculation of the [*3]statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.

Weston Patterson, J., concurs in part and dissents in part and votes to deny the motion for summary judgment as to all but plaintiff’s first three claims in the following memorandum:

While I agree with the majority that defendant properly refused to pay plaintiff’s first three claims, I disagree with the majority’s decision to grant plaintiff summary judgment on its remaining claims. In my view, defendant’s timely denials of those claims provided adequate notice of the reasons for the denials.

Defendant’s denial forms state, in pertinent part:
“The Service(s) Submitted Were Rendered Beyond Denial, Based On An Independent Medical Examination.”
In a sworn supporting affidavit, Morton Nussbaum states:
“1. That on November 17, 2003 I saw Andrea Campbell for a chiropractic independent examination. The following was found:” (emphasis added).
Following these forms is a copy of a detailed independent medical examination (IME) report prepared by Dr. Nussbaum indicating no chiropractic disability.

Unlike the cases cited to by the majority (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]), here, it is clear from the denial of claim forms that Dr. Nussbaum’ s IME report was attached to the denials. The denial forms specifically refer to additional findings, which were contained in a copiously detailed report following the denials. Under these circumstances, it cannot be said that defendant’s denial of claim forms were factually insufficient to apprise plaintiff of the reasons for the denials.
Decision Date: January 2, 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 (Arlene Bluth, J.), entered December 2, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the submission of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the proof annexed thereto were insufficient to establish that plaintiff mailed the claim to defendant since “there is no evidence that th[e] claim was mailed to [defendant] under that certified mail receipt number” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, [*2]548 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud
Dists 2004]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment.

The affidavit of defendant’s claim representative and the printout annexed thereto established that defendant never received the subject claim from plaintiff. Since plaintiff failed to rebut defendant’s contention that it never received the claim by establishing the mailing of same, the lower court’s order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment should be affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 28, 2006

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 (Dolores L. Waltrous, J.), entered August 16, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Here, the affidavit of plaintiff’s corporate officer and the proof of
mailing annexed thereto were insufficient to establish that plaintiff mailed its claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claim in question by attaching to its moving
papers a delay letter from defendant is unavailing since said letter did not specifically refer to the claim at issue in that it did not set forth the amount of the claim (see Impulse Chiropractic, P.C. v Travelers Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists]). Therefore, since plaintiff failed to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.

Pesce, P.J., Weston Patterson 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 (George J. Silver, J.), entered July 11, 2005. The order, insofar as appealed from as limited by defendant’s brief, granted plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw .

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Herein, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [was submitted] in a timely manner” and that bills for the services rendered to the respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [*2][2005]). While a defendant insurer’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that defendant received the claims (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]), there are discrepancies herein between the claim
forms and denial of claim forms which are not explained on the record. Likewise, defendant’s letters to plaintiff did not set forth with sufficient particularity the specific claims to which the letters referred. Accordingly, since the denial of claim forms and letters are inadequate to establish receipt of the claim forms, and plaintiffs did not otherwise provide proof of proper mailing of the claim forms, the order of the court below is reversed and plaintiffs’ motion for summary judgment is denied (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 27, 2006

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 (Alice Fisher Rubin, J.), entered August 8, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which, pursuant to CPLR 3126, sought an order dismissing the action due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, plaintiff’s counsel did not assert a basis of his personal knowledge of the facts and did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; People v Kennedy, 68 NY2d 569 [1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant issued a denial of claim form, said claim denial merely established that defendant received a claim form submitted by, or on behalf of, plaintiff, but it did not concede the admissibility of the purported claim form or the facts set forth therein (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]). In light of plaintiff’s counsel’s apparent lack of [*2]personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra).

Although plaintiff subsequently served an affidavit executed by its president, the affidavit, which was denominated a “Supplemental Affidavit,” was in reality a reply affidavit. Plaintiff could not establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in plaintiff’s moving papers (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D., P. C., 241 AD2d 439 [1997]; Calderone v Harrel, 237 AD2d 318 [1997]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Although defendant’s cross motion to, inter alia, compel discovery was unopposed, the discovery demands annexed to defendant’s cross motion pertained to a different action involving a different plaintiff and a different assignor. As a result, it is unclear what discovery demands defendant served in this action. Accordingly, defendant’s cross motion to, inter alia, compel discovery should be denied with leave to renew upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

Weston Patterson, J.P., 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 emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 15, 2006

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 (Peter Paul Sweeney, J.), entered September 14, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The denial of claim forms, annexed to plaintiff’s moving papers, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant established that it mailed denial forms within the prescribed 30-day period (11 NYCRR 65-3.8 [c]) through the affidavit of defendant’s representative detailing the standard office procedure for such mailing, which affidavit was sufficient to give rise to the presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Attached to each denial form was a detailed peer review report which purported to be “affirmed” by defendant’s doctor pursuant to CPLR 2106. They contained a stamped facsimile of the doctor’s signature. On appeal, plaintiff objects, as it did in the court below, to the admissibility [*2]of the reports on the ground that they did not comply with CPLR 2106. In our view, under the circumstances presented, the peer review reports were not in admissible form (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632
[1971]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 102 [1965]) and, thus, defendant has failed to raise a triable issue of fact as to medical necessity. We note in passing that there is nothing in the record to indicate that the doctor himself stamped his signature. In view of the foregoing, plaintiff is entitled to summary judgment 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 and the regulations promulgated thereunder.

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

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

Weston Patterson, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

In my view, the stamped facsimile of the doctor’s signature does not render his affirmed peer review reports inadmissible. General Construction Law § 46 states, “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing” (emphasis added) (see also Rulle v Ivari Intl., 192 Misc 2d 266 [App Term, 2d & 11th Jud Dists 2002]). Consequently, even if the doctor’s signature was stamped, it is sufficient to comply with CPLR 2106, which requires the statement to be “subscribed and affirmed.”

Accordingly, defendant’s submissions raise a triable issue of fact as to medical necessity, and I would vote to affirm.
Decision Date: December 15, 2006

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 (Lila Gold, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2005]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of any of the appended claim forms to defendant. However, said deficiency was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and defendant received, said claim forms (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]).

This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon a lack of medical necessity, the defendant is precluded from asserting said defense (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists]; SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s NF-10 denial of claim forms merely advised plaintiff that the claims were denied pursuant to peer review reports [*2]and that a copy of these reports would be furnished upon written request. Since there is no evidence that the peer review reports were sent to plaintiff within the 30-day claim determination period, and the denials were otherwise devoid of any factual basis to support them, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], supra) and plaintiff is entitled to summary judgment upon said claims.

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

Golia, J., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 13, 2006

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 (Lila Gold, J.), entered November 7, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York,
49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In this action to recover assigned, first-party no-fault benefits, plaintiff’s moving papers did not establish that plaintiff ever submitted the subject claim form to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent plaintiff’s counsel submitted a reply affirmation in which counsel attempted to introduce a purported verification request allegedly sent by defendant to plaintiff in an attempt to demonstrate, for the first time, a critical element of plaintiff’s prima facie case, such evidence was neither in admissible form nor properly before the court (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D.,
P.C., 241 AD2d 439 [1997]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). As a result,plaintiff’s motion for summary judgment was properly denied. [*2]

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