[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2006

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata & Gullo, LLP, Staten Island (Michael Gullo, Junmin Zou and Michelle Titone of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**14 Misc 3d at 45} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for a determination de novo of defendant’s cross motion.

In this action by a health care 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 a “corporate officer” of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s “corporate officer” stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant opposed plaintiff’s motion and cross-moved to compel depositions of plaintiff, plaintiff’s assignor, and the assignor’s treating physicians. In opposition to plaintiff’s motion, defendant argued that the affidavit by plaintiff’s “corporate officer” was insufficient to establish personal knowledge of the facts set forth therein because the “corporate officer” did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). Among other [*2]things, defendant submitted an affidavit executed by one of its special investigators, and a report prepared by said investigator, which set forth why the special investigator believed that the injuries allegedly sustained by plaintiff’s assignor were not causally related to a covered accident. The court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Upon this appeal, defendant argues, inter alia, that plaintiff did not demonstrate a prima facie case because it failed to lay a proper foundation for the admission of its documents and that plaintiff’s motion should be denied because there was an issue of fact as to whether the alleged injuries were the product of a staged accident. Defendant further asserts that its cross motion should have{**14 Misc 3d at 46} been granted because there is an issue of fact concerning the causation of the alleged injuries.

It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant’s opposing papers contained a timely objection asserting that plaintiff’s motion papers did not make a prima facie showing in admissible form due to plaintiff’s failure to demonstrate that the “corporate officer” possessed personal knowledge concerning plaintiff’s office practices with regard to the subject claim forms, this issue was not waived (cf. Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393 [2005]; Teig v First Unum Ins. Co., 282 AD2d 669 [2001]; Sam v Town of Rotterdam, 248 AD2d 850 [1998]).

The affidavit submitted by plaintiff’s “corporate officer” failed to demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte v Bellin, 137 AD2d 406, 408 [1988] [“In order to lay the foundation for the doctor’s business record, (the party seeking admission of the record) was required to call a witness with personal knowledge of the doctor’s business practices and procedures”]; Dayanim v Unis, 171 AD2d 579 [1991]; 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] [affirmation by an attorney who lacked personal knowledge was insufficient to lay a foundation for a determination that his clients’ documents were admissible as business records]).

A review of the record in Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (12 Misc 3d 147[A], 2006 NY Slip Op 51557[U] [App Term, 9th & 10th Jud Dists 2006]) reveals that the affidavit which plaintiff submitted in said case was similar to the affidavit in the instant case, in that both affidavits were executed by unspecified “corporate officers.” The Appellate Term for the Ninth and Tenth Judicial Districts stated, “the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms, mailing receipts, denials (indicating that defendant received the claims) and other documents to{**14 Misc 3d at 47} be considered by the court.” (Id. at *1.) However, the argument raised by the defendant in the court below in said case was that plaintiff failed to make a prima facie showing because plaintiff’s affiant did not demonstrate that he possessed personal knowledge of the facts set forth in such records. The Appellate Term for the Ninth and Tenth Judicial Districts rejected this argument. An affiant need only demonstrate that he or she possesses personal knowledge of the office practices such that the affiant can lay a sufficient foundation to establish that such documents are business records (see CPLR 4518; see generally William Conover, Inc. v Waldorf, 251 AD2d 727 [1998]; Matter of [*3]Brooke Louise H., 158 AD2d 425 [1990]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). Given the limited argument raised by defendant in said case, the Appellate Term for the Ninth and Tenth Judicial Districts was not called upon to rule upon the issue presented in this case, to wit, whether the affidavit by the “corporate officer” sufficiently set forth a foundation for the admissibility of the purported business records annexed to said affidavit. We hold that the instant affidavit is insufficient to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte, 137 AD2d at 408).

In light of the foregoing, plaintiff failed to tender sufficient proof in evidentiary form to establish its prima facie case (see Insurance Law § 5106 [a]; 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] [2006], supra; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). To the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do (see Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [2006], supra). As a result, plaintiff’s motion for summary judgment should have been denied.

We note that, even if plaintiff had established a prima facie case, in the instant matter, plaintiff’s motion for summary judgment should, in any event, have been denied because defendant’s{**14 Misc 3d at 48} opposition to plaintiff’s motion for summary judgment demonstrated the existence of a triable issue of fact as to whether “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]).

Inasmuch as defendant’s cross motion to compel depositions was, in effect, denied as academic in light of the Civil Court’s conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the Civil Court for a determination de novo of defendant’s cross motion.

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

[*1]

Supreme Court, Appellate Term, Second Department, November 28, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

{**14 Misc 3d at 35} OPINION OF THE COURT

Memorandum.

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

In this action to recover first-party no-fault benefits for health care services provided its 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 2003]). Plaintiff submitted, inter alia, defendant’s timely claim denial forms, which conceded receipt of the four claims and asserted only the lack of medical necessity for the services provided as the ground for the denials, citing in the first three denials a peer review report, and in the final denial, additionally, the report of an independent medical examination (IME). [*2]

It is well settled that “a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 10 [App Term, 2d & 11th Jud Dists 2006], quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). While defendant was not required to attach to its denial forms either the peer review report upon which the denials were purportedly based or the IME report cited in the final denial (see 11 NYCRR 65-3.8 [b] [4]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term,{**14 Misc 3d at 36} 2d & 11th Jud Dists 2005]), the lack of medical necessity defense is properly interposed when the claim denial form, and any other documentation submitted within the 30-day claim determination period, “set[s] forth with sufficient particularity the factual basis and medical rationale for [the] denial” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]). The denials herein were couched entirely in conclusory language and contained no facts to satisfy the NF-10 claim denial form’s requirement that the insurer state the reason for a denial “fully and explicitly” (see also 11 NYCRR 65-3.2 [e] [“Claim practice principles to be followed by all insurers . . . . (e) Clearly inform the applicant of the insurer’s position regarding any disputed matter”]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [“A proper denial of claim must include the information called for in the prescribed denial of claim form”]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004] [“A proper denial . . . must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ “], quoting General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]).

In our view, a claimant’s entitlement to a copy of a peer review report upon demand (11 NYCRR 65-3.8 [b] [4] [“If the specific reason for a denial of a no-fault claim . . . is a . . . peer review report requested by the insurer, the insurer shall release a copy . . . to the applicant . . . upon . . . written request”]) creates no exception to the requirement that the statutorily-mandated NF-10 form (which provides that the insurer must “attach extra sheets if needed”) state the ground for the denial with the “high degree of specificity” required by regulation and case law. We do not read the reference to a peer review report as the “specific reason” for a denial to mean that the bare recitation of reliance on such a report satisfies the requirement that a denial based on the lack of medical necessity, which this court has held on numerous occasions to require the assertion of facts and a medical rationale based thereon, is satisfied by the mere invocation of a peer review report as the basis of a denial. Rather, the regulation merely guarantees a claimant’s right to obtain a copy of the report upon written demand when its content is specifically alleged to justify a claim’s denial.

Finally, the sufficiency of either report to establish a triable issue of medical necessity need not be addressed as “even assuming said reports’ admissibility and that they set forth a sufficient{**14 Misc 3d at 37} factual basis and medical rationale for denial of the claims, they cannot remedy the factual insufficiency of defendant’s denials” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d at 32). Therefore, because defendant failed properly to interpose the medical necessity defense at the “claim stage” and failed to establish any defense that survived the preclusion sanction, defendant’s cross motion for summary judgment should have been denied and plaintiff’s motion for summary judgment granted. [*3]

Accordingly, 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 promulgated thereunder.

Golia, J.P. (concurring with the result only): I am constrained to agree with the disposition reached by the ultimate majority. However, I 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.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) in which I assert that a denial of claim predicated upon a peer review report is sufficient to comply with the regulations.

The plaintiff herein claims that it sent a written request to the defendant for a copy of the peer review report which, plaintiff insists, it never received, and that the defendant “ignored the request.” However, plaintiff failed to establish any proof regarding the mailing of such request, and absent such proof, this court should not consider the alleged failure of the defendant to provide a copy of the report. The Appellate Term has consistently rejected an insurer’s proof of its claim denial form upon a finding that defendant failed to proffer acceptable proof of mailing (e.g. 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 2006]). I submit, the Appellate Term should likewise reject plaintiff’s papers upon plaintiff’s failure to proffer appropriate proof of mailing.

Notwithstanding, the defendant’s alleged failure to provide a copy of the peer review report is a nonissue. In point of fact, the regulations do not require the defendant to provide a copy of the report. They only require the defendant to pay or deny a{**14 Misc 3d at 38} claim within 30 days of receipt. Had the defendant sent such a denial after 30 days, or had it sent the denial within 30 days but failed to proffer sufficient proof of mailing, the majority, I submit, would have applied their former holdings and granted summary judgment to the plaintiff. In this case the majority concedes a timely denial and proper proof of mailing.

I would, however, prefer to find that the defendant complied with all the rules and regulations and met the clear language of 11 NYCRR 65-3.8 (b) (4) which provides,

“If the specific reason for a denial of a no-fault claim, or any element thereof, is a medical examination or peer review report requested by the insurer, the insurer shall release a copy of that report to the applicant for benefits, the applicant’s attorney, or the applicant’s treating physician, upon the written request of any of these parties” (emphasis added).

In order to substantiate their position, my colleagues claim that the language in the form promulgated by the Insurance Department provides that additional pages “must” be attached. The mere fact that the form allows for additional pages is not equivalent to a mandate requiring additional pages as needed, nor does it establish that the reason for a denial must be long winded and verbose.

In the present case, the plaintiff filed a claim for payment and the defendant thereupon submitted the claim file for an independent peer review. Upon receiving the peer review report, defendant sent out a timely denial predicated upon the peer review report containing the specific grounds of the denial.

This procedure is entirely within the terms and conditions of the regulations. If the plaintiff wished to learn the particulars of the report, it need only send a written request appropriately mailed, and defendant would be required to provide a copy of that report. Although plaintiff claims to have done so in this case, it failed to provide any proof of mailing. Consequently, the request should not be considered.

To hold as the majority does, in my opinion, would usurp the regulations which require the Department of Insurance to promulgate its own rules and regulations. It would require the defendant to produce the peer review report within 30 days of the claim despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff. This is a burden the regulations do not impose upon an insurer.{**14 Misc 3d at 39}

It is very clear to me that the regulations provide for a logical and reasonable procedure for the disposition of a claim, and that my colleagues’ analysis is strained. The majority acknowledges that the regulations do not require a defendant to annex a copy of the doctor’s independent medical examination (IME) report to the NF-10 denial of claim form which is predicated upon that report; however, they assert that the NF-10 form must include reasons for the denial with a “high degree of specificity.”

In order to comply with the mandates as set forth by the majority, a defendant insurance company must direct their claim examiners (many of whom are not medical doctors) to do the following: they must first read and understand the IME report which was written by a medical doctor, digest all the medically salient points, and then draft a denial of claim which lists all those salient medical points with a “high degree of specificity.” The other alternative is to simply send an NF-10 form with the notation “see attached IME report” as the reason for the denial and, of course, attach a copy of the report.

The problem with this analysis is that the first alternative is burdensome, inefficient and downright unnecessary, whereas the second alternative is clearly and specifically not required by the regulation.

A more reasonable analysis is to simply follow the requirements set forth by the regulation. The defendant insurance carrier receives a copy of an IME report which asserts that the medical treatments, or the medical examination, or the medical supplies provided, were not medically necessary for the medical reasons enumerated in the IME report. The carrier then sends an NF-10 denial of claim form which asserts that the claim is being denied for the specific reason that the IME doctor issued a report recommending denial. In the event the provider wishes to learn the precise medical reasons that led to that result, it need only send a written request, and a copy of the IME report will be sent to it free of charge.

Simple, reasonable and effective, and most importantly, the aforesaid procedure is in [*5]accordance with the regulations.

I would prefer to deny plaintiff’s motion for summary judgment.

Rios and Belen, JJ., concur; Golia, J.P., concurs in a separate memorandum.

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 19, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff’s prima facie case to recover first-party no-fault benefits (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, due to plaintiff’s failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied
plaintiff’s motion for summary judgment (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]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129[A], 2006 NY Slip Op 50293[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130[A], 2005 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]).

As for defendant’s cross motion, it, too, should have been denied. Other than defense counsel’s conclusory affirmation stating that plaintiff “cannot show” timely mailing, defendant offers no admissible proof to establish that it never received plaintiff’s claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie [*2]showing entitling it to judgment as a matter of law.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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 J. Waltrous, J.), entered August 16, 2005. The order, inter alia, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126.

Order affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 24, 2004, plaintiff was directed, among other things, to appear for a deposition no later than November 12, 2004. The stipulation further provided, in relevant part, that:
“[i]f [plaintiff] fails to appear for said EBT [plaintiff] shall be precluded from offering evidence [at] trial.

***
ALL DATES CONTAINED HEREIN RELATING TO COMPLETION OF ITEMS IN THIS ORDER MUST BE ADHERED TO. COUNSEL MAY NOT ENTER INTO ANY [*2]ADJOURNMENTS WITHOUT FURTHER ORDER OF THIS COURT, [e]xcept for [plaintiff’s] summary judgment motion” (emphasis in original).

Plaintiff failed to appear at the deposition and, instead, moved for summary judgment just prior to the date plaintiff was required to appear. Defendant cross-moved to strike plaintiff’s pleadings and dismiss the complaint or, alternatively, to preclude plaintiff from introducing evidence at trial based on plaintiff’s failure to appear at the deposition. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss, noting that plaintiff failed to appear at the deposition as directed. Plaintiff now appeals claiming, among other things, that the filing of its motion for summary judgment stayed all discovery and, thus, there was no requirement to appear on the scheduled date.

While CPLR 3214 (b) automatically stays discovery during the pendency of a summary judgment motion, it should not be invoked in this case where the court plainly directed otherwise. Pursuant to the so-ordered stipulation, plaintiff was to appear at a deposition on or before November 12, 2004 or face preclusion, and no extension of this date would be permitted without prior court approval. The stipulation unequivocally required prior court approval for any adjournments of dates set forth in the stipulation, “[e]xcept for [plaintiff’s] summary judgment motion.” Thus, while plaintiff was permitted to adjourn its time to file its summary judgment motion without prior court approval, this permission did not extend to any other deadlines set forth in the so-ordered stipulation. By requiring prior court approval, the court made clear that strict compliance with discovery was required, regardless of whether a summary judgment motion was served.

Plaintiff’s service of the summary judgment motion just before it was required to appear was nothing more than a ploy to avoid the court’s directives. Such flagrant disregard of a court order should not be condoned.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 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 an action to recover assigned first-party no-fault benefits, a plaintiff establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see 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]). In the instant case, by annexing to its moving papers defendant’s claim denial form, the contents of which corresponded to the appended claim forms, plaintiff established that it sent and that defendant received the claims in question (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op [*2]50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s prima facie entitlement to summary judgment as to the aforementioned claims was established, and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, defendant’s denial of claim form indicated that defendant did not deny the claims within 30 days of their receipt. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof of having done so. The affidavit of defendant’s special investigator stated that the policy in effect at the time of the accident required an eligible injured person to submit to an examination under oath (EUO) if reasonably requested, and referred to documents to show that EUOs were in fact requested of plaintiff’s assignor. There were, however, no evidentiary submissions to establish that said requests were mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Thus, defendant’s time to deny the claim was not tolled, the denial was untimely and defendant was precluded from raising most defenses as a result of its untimely denial (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While defendant is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., “a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]). Accordingly, 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 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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 (Eileen Nadelson, J.), entered September 9, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on January 10, 2006. The judgment, entered pursuant to the September 9, 2005 order granting plaintiff partial summary judgment, awarded plaintiff the sum of $2,580.09, including interest, costs and attorney’s fees.

Judgment 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 [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]). In the instant case, with respect to the appended claim forms for the amounts of $614.33, $300, $400 and $400, plaintiff established that it sent and that defendant received same by annexing to its moving papers defendant’s denial of claim forms corresponding thereto (see 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 [*2]Dists]). Accordingly, plaintiff established its prima facie entitlement to summary judgment as to the aforementioned claims and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s assertion that it timely denied the claims based on the assignor’s failure to appear for scheduled independent medical examinations (IMEs) and nonconformity with the Workers’ Compensation fee schedule is lacking in merit. While
a post-claim IME verification request may toll the 30-day statutory period within which an insurer has to pay or deny a claim (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]), the affidavit of defendant’s no-fault specialist was insufficient to establish the mailing of the IME request letters since she neither alleged that she had personal knowledge that said request letters were mailed nor set forth a sufficiently detailed description of defendant’s standard office mailing practice or procedure so as to give rise to the presumption of mailing (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]). As a result, defendant failed to establish that the 30-day statutory time period within which it had to pay or deny plaintiff’s claims was tolled. Since defendant failed to establish that it timely denied plaintiff’s claims, it is precluded from asserting its defenses of lack of medical necessity and that the fees charged by plaintiff were excessive (see Presbyterian Hosp. in Cityof N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Therefore, the lower court properly granted plaintiff’s motion to the extent of awarding it partial summary judgment as to its claims in the sums of $614.33, $300, $400 and $400.

Pesce, P.J. Weston Patterson and Belen, JJ., concur.
Decision Date: November 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 (Ellen Spodek, J.), entered March 31, 2005. The order denied the petition to vacate the master arbitrator’s award.

Order 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 the petitioner’s claims for no-fault benefits (see e.g. Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; 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]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: November 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 (Eileen Nadelson, J.), entered September 26, 2005. 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 to recover first-party no-fault benefits for medical supplies furnished to its assignor, the court below denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment on the ground that neither party had established its prima facie entitlement to judgment as a matter of law by competent
proof in admissible form. Defendant appeals from so much of the order as denied its cross motion for summary judgment and we affirm.

Defendant timely denied the claim citing a peer review report which, according to the denial form, “revealed that the service provided was not medically necessary.” The denial form did not indicate that the peer review report was attached to the denial. Nor did defendant’s affiant state in its cross motion papers that the report was ever mailed to plaintiff, much less that defendant did so within 30 days of the claim’s receipt. The denial form otherwise contained no facts to satisfy the statutory claim form’s requirement that the insurer: “State reason for denial, [*2]fully and explicitly (attach extra sheets if needed)”. Even 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 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 the peer review report to its denial of claim form (as implied by 11 NYCRR 65-3.8 [b] [4]), in such a case the denial 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 & 11thain Jud Dists 2005]), or at the very least, the insurer must supply claimant with the report within 30 days of the claim’s receipt, absent a tolling of the statutory claim determination period (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 2006]). As defendant proved compliance with neither rule, it 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 [a denial form’s factual insufficiency with respect to a lack of medical necessity defense is not cured by attaching a peer review report to papers opposing a motion for summary judgment]). In the absence of any other ground to support its cross motion, defendant failed to establish its prima facie entitlement to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 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, Queens County (Timothy J. Dufficy, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts 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 deficiencies, if any, with regard to plaintiff’s proof of mailing were “cured by defendant’s acknowledgment of receipt on its denial form” which was attached to plaintiff’s papers (Fair Price Med. Supply Corp. v ELRAC Inc. & Enterprise Rent-A-Car, 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 denial form, dated [*2]December 3, 2003, alleged that defendant issued a verification request on November 17, 2003, 66 days after the claims’ receipt (September 12, 2003). Even if proof of such verification request had been presented in admissible form, the request was untimely (11 NYCRR 65-3.5 [a], [b]; 11 NYCRR 65-3.8 [a], [1]). Under the circumstances, defendant’s denial was untimely (11 NYCRR 65-3.8 [a] [1], [c]), precluding most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The untimely denial, however, did not preclude defendant from interposing the defense that the assignor’s injuries were not causally related to the accident (e.g. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]), that is, that there was no causal nexus between the accident and the injuries for which the assignor was treated (Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; see Valentine v Grossman, 283 AD2d 571, 572 [2001]). An accident analysis report in the form of a “low impact study” can be a proper basis for a denial (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]), “provided it is in admissible form” (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U], supra). However, defendant’s report was not in admissible form (see Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). Recognizing the deficiency, defendant resubmitted the report in admissible form, but only for the first time in sur-reply when plaintiff had no opportunity to respond to its content (Dannasch v Bifulco, 184 AD2d
415, 416 [1992]). The court below declined to consider the affidavit, and matters disregarded below as improperly raised in reply may not be considered on appeal (e.g. Wager v Hainline, 29 AD3d 569 [2006]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 13, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez J.), dated January 31, 2006, which denied its motion to compel discovery.

PER CURIAM:

Order (Julia I. Rodriguez J.), dated January 31, 2006, reversed, with $10 costs, and defendant’s motion for discovery granted.

In this action to recover assigned first party no-fault benefits, defendant is entitled to discovery pertaining to its defenses of lack of medical necessity and fraudulent billing, including the deposition of Dr. Arkady Levitan. The record shows that defendant timely denied plaintiff’s claims. Plaintiff’s assignor appeared for an IME performed by defendant on April 25, 2003, which was timely scheduled within 30 days from the date of defendant’s receipt of the claim (see 11 NYCRR 65-3.5 [d]), and in a letter addressed to defendant dated May 9, 2003, plaintiff’s counsel acknowledged receipt of defendant’s denial, which was dated May 6, 2003, thereby establishing a timely denial of claim within 30 days after the IME was performed (see 11 NYCRR 65-3.8 [a][1]).

This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: November 9, 2006