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 28, 2005. The order, insofar as appealed from, denied the branches of plaintiff’s motion which sought summary judgment upon plaintiff’s claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from the denial of the branches of its motion for summary judgment which sought to
recover upon its claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003. Plaintiff asserts that defendant’s denial of claim forms (NF-10) were defective because rather than fully and explicitly setting forth the basis for the denials, the NF-10s stated that plaintiff’s claims were denied based upon a peer review report, a copy of which accompanied the NF-10s. Where, as here, the insurer establishes that it provided a factually sufficient peer review report to plaintiff within the 30-day claim determination period, an NF-10 which states that the claim was denied based upon the peer review report provided to plaintiff is sufficient to preserve a defense of lack of medical necessity (see Psychological Practice, P.C. v Kemper Auto & Home Ins. Co., 12 Misc 3d 137[A], 2006 NY [*2]Slip Op 51289[U] [App Term, 2d & 11th Jud Dists]; Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]; see also 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 view of the fact that defendant’s opposition to plaintiff’s summary judgment motion included an affidavit from the peer reviewer which incorporated the unsworn peer review report, plaintiff was not entitled to summary judgment upon its claims in the
amounts set forth in the aforesaid claim forms (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 Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 08, 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 (Arlene Bluth, J.), entered April 8, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for partial summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of said benefits was overdue. Thereafter, it moved for partial summary judgment and defendant cross-
moved for summary judgment dismissing the complaint. By order entered April 8, 2005, the court below denied both motions without prejudice to renewal upon proper papers. The instant appeal by plaintiff ensued.

In order to establish its prima facie entitlement to summary judgment (see generally 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]), plaintiff was required, inter alia, to annex to its motion papers the claim forms being sued upon (see Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. [*2]Auto Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]). A review of the record on appeal indicates that plaintiff did not annex any exhibits to its moving papers. We note that the document entitled “EXHIBITS SERVED WITH THE PLAINTIFF’S SUMMARY JUDGMENT MOTION,” was rejected by the court below and was not considered by the court in reaching its determination. Plaintiff’s contention regarding defendant’s exhibits
lacks merit. Accordingly, the court below properly denied plaintiff’s motion for partial summary judgment without prejudice to renewal upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to [*2]the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.

The remaining contentions lack merit.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the
lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would [*2]not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.

The remaining contentions lack merit.

Pesce P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 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 29, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim forms to defendant. However, said deficiency was cured by the denial of claim form relating to all of the claims which adequately established that plaintiff sent, and that defendant received, the claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment 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]).

The denial of claim form was dated May 27, 2003 and indicated that the claims were [*2]received by defendant between December 2, 2002 and April 2, 2003. Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate that the defense was based upon a “founded belief 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]). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court of Nassau County, First District (Margaret C. Reilly, J.), dated October 17, 2005. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A motion to vacate is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]). Despite the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment rendered against it. [*2]

Plaintiff adequately established that it effectuated service upon the Superintendent of Insurance pursuant to Insurance Law § 1212. Defendant’s mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by plaintiff’s affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]).

Although defendant’s motion to vacate the default judgment was made pursuant to CPLR 5015 (a) (1), in the instant case, we may treat defendant’s motion as having been made under CPLR 317 as well. A defendant seeking relief under CPLR 317 need not demonstrate a reasonable excuse for its default, as it must under CPLR 5015 (a) (1), but need only show that it did not personally receive notice of the summons in time to defend and that it has a meritorious defense. Defendant herein met its burden of showing that it did not receive actual notice of the commencement of the action in time to defend (see e.g. Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nonetheless, defendant failed to proffer a meritorious defense. Defendant admitted receipt of a Hospital Facility Form, and stated that after receipt of that form, it twice requested an Application for Motor Vehicle No-Fault Benefits, which was never submitted to it. Accordingly, it denied the claim, based upon the eligible injured party’s failure to file “a completed and signed application for no-fault benefits.” Defendant’s argument that it was entitled to delay payment of benefits pending its receipt of the Application for Motor Vehicle No-Fault Benefits has already been rejected by the Appellate Division, Second Department, in Nyack Hosp. v Encompass Ins. Co. (23 AD3d 535 [2005]) wherein the court pointed out that 11 NYCRR 65.15 (d) (6) (now 11 NYCRR 65-3.5 [g]) states that “[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) . . . submitted by a provider of health services with respect to the claim of such provider.” We note that a defendant may not avoid preclusion where its denial “involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, in view of the foregoing, we find that the court below improvidently exercised its discretion in vacating the default judgment, and that defendant’s motion should have been denied.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 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 (Arlene Bluth, J.), entered July 22, 2005. The order denied plaintiff’s cross motion which sought summary judgment and granted defendant’s motion to the extent of compelling plaintiff to respond to specified discovery demands served by defendant.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its cross motion for summary judgment and which also
required plaintiff to respond to defendant’s discovery demands. As stated by the Appellate Division, Second Department, in New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547, 548 [2006]):
“The plaintiff, as the proponent of the summary judgment motion, had the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that [*2]the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). The plaintiffs failed to submit a proper affidavit of service to establish as a matter of law that the subject hospital bill was mailed and received by the defendant. Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee’ (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998] [internal quotation marks omitted]). The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]).”

In the instant case, the affidavit submitted by plaintiff’s billing manager stated that she mailed the claim, but it did not set forth when the claim was mailed or describe plaintiff’s office practice and procedure for mailing no-fault claims to insurers to establish the date of mailing (see New York & Presbyt. Hosp., 29 AD3d at 548;
Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 11 Misc 3d 144[A], 2006 NY Slip Op 50810[U] [App Term, 2d & 11th Jud Dists]). Contrary to plaintiff’s contentions, the certified mail receipt, return receipt card was insufficient to establish when the subject claim was mailed to defendant given the affidavit’s deficiencies because there was no evidence that this claim was mailed to defendant under the article number set forth on the certified mail, return receipt card (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548). Since plaintiff’s submissions were insufficient to establish that payment was overdue, and defendant’s papers did not cure such deficiency, “upon all the papers and proof submitted” (CPLR 3212 [b]), a prima facie entitlement to summary judgment in favor of plaintiff was not demonstrated. Accordingly, plaintiff’s cross motion was properly denied without regard to the sufficiency of defendant’s opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]).

While we do not consider plaintiff’s contention that defendant was not entitled to any discovery because this argument is raised for the first time on appeal (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]), we note that it is contrary to a voluntary concession contained in plaintiff’s submissions to the Civil
Court wherein plaintiff agreed to provide discovery if plaintiff’s cross motion for summary judgment was denied.

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

Golia, J., concurs in a separate memorandum. [*3]

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: October 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 (Manuel J. Mendez, J.), entered January 3, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff 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, plaintiff’s moving papers were insufficient to establish the mailing to defendant of the appended claim forms in the sums of $738 and $861.50. However, said deficiency was cured with regard to the $738 claim by defendant’s acknowledgment of receipt of said claim in its denial of claim form which was annexed to plaintiff’s papers. This adequately established that plaintiff sent, and that defendant received, said claim (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, [*2]plaintiff established its prima facie entitlement to summary judgment as to the $738 claim and the burden shifted to defendant to demonstrate the existence of a triable issue of fact with respect thereto (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The denial of claim form relating to plaintiff’s $738 claim was dated “8/10/01” and indicated that said claim was received by defendant on “1/12/01 and 3/19/01.” Since defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate a “founded belief 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]). Since plaintiff failed to establish a prima facie case as to its $861.50 claim and, in any event, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to 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: October 27, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 25, 2006, affirmed, with $10 costs.

Plaintiff health care provider established a prima facie entitlement to summary judgment by submitting “evidentiary proof that the prescribed statutory billing forms had been mailed and received, 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]). Plaintiff sufficiently described a standard office procedure designed to ensured that the claims forms were properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). In opposition, defendant failed to raise any triable issues of fact.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered May 17, 2006, which denied its motion to vacate the notice of trial and statement of readiness.

PER CURIAM:

Order (Fernando Tapia, J.), entered May 17, 2006, affirmed, with $10 costs.

In this action seeking recovery of no-fault benefits totaling $1,118.58, the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006