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 (Bernard J. Graham, J.), entered June 28, 2005. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,941.01.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment in the sum of $3,012.49, the portion of the claims for which defendant refused payment. The court awarded plaintiff partial summary judgment in the principal sum of $2,941.01.

Plaintiff established its prima facie entitlement to summary judgment as to the disputed amounts in that it proved it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of a portion of the claims 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 does not dispute that the denial of the initial claim was untimely on its face, and contrary to defendant’s assertions below and on appeal, an untimely denial precludes the defenses set forth therein, all of which were based on the application of the fee schedules to the specific services provided (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002] [defense based on claimant’s alleged use of an incorrect billing code [*2]precluded by an untimely denial]; Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists] [defense based on “nonconformity with the Worker’s Compensation fee schedules” precluded]; S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists] [defense, “in effect, of excessive charges” precluded]). Defendant may not avoid the preclusion sanction by casting billing code issues as matters of “coverage,” whether as exceeding the compensation allowed for a given treatment or the maximum allowable compensation per diem, or that the schedules do not compensate for treatments not approved as medically “useful” for the purposes alleged. Issues of medically unnecessary or excessive treatment “[do] not ordinarily implicate a coverage matter” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and fee schedule disputes are subject to the preclusion sanction. Thus, the court properly awarded plaintiff summary judgment on the first set of claims in the amount of $1,397.06.

With regard to the remaining two sets of claims, which alleged underpayments in the amounts of $1,062.67 and $481.28, the denial forms, which were timely, set forth in detail the specific grounds for the denials of part or all of the itemized claims, and state the bases thereof with the requisite specificity to satisfy the requirements of an effective denial. However, as to the claims marked with codes EX022 and EX028 on the second set of claims, and X322 on the third set of claims, denying specific claims with the explanation that the necessity of the medical services provided was not substantiated by the documents submitted or were supported by no documentation at all, said denials are ineffective inasmuch as properly submitted proofs of claim establish the medical necessity thereof prima facie (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and if an insurer requires further documentation in relation thereto, the remedy is the verification protocols. Thus, said denials are factually insufficient, conclusory and vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]) in that they failed to set forth with the requisite particularity the factual basis and medical rationale for the denial (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and the defense is unavailing notwithstanding the timely denials.

In view of the foregoing, defendant’s denials were effective to the extent of $146.03 of the $1,062.67 balance due on the second set of claims, and $199.56 of the balance due on the third set of claims. Accordingly, plaintiff’s motion should have been granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42.

We have considered defendant’s remaining contentions and find them without merit.

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:

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: July 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 (Bernice Daun Siegal, J.), entered March 7, 2005. The order granted defendant’s motion, inter alia, to compel discovery and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as granted defendant’s motion, inter alia, to compel discovery dismissed.

Order, insofar as reviewed, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary [*2]
judgment in the sum of $3,935.24, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining $687 claim; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After defendant moved, inter alia, to compel plaintiff to comply with defendant’s discovery demands, plaintiff cross-moved for summary judgment upon its claims for $687, $458, $1,786.18, $2,181.30, and $583.16. The denial of claim forms annexed to the parties’ motion papers indicated that defendant made partial payment to plaintiff in response to the claims which originally sought the sums of $1,786.18, $2,181.30, and $583.16. By order entered March 7, 2005, the court below denied plaintiff’s cross motion for summary judgment and granted defendant’s motion to compel discovery on default since plaintiff failed to submit written opposition to defendant’s motion to compel discovery. Accordingly, the appeal by plaintiff, the defaulting party, from so much of the order as granted defendant’s motion on default must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). [*3]

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of any of the appended claim forms to defendant, the deficiency in plaintiff’s moving papers concerning proof of its submission of the claims was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and that defendant received, said claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

Plaintiff’s cross motion for summary judgment upon its claim for $687 was properly denied because the submissions by the parties established that this claim was denied on the ground that the maximum allowable benefits therefor under the policy were already paid. As such there is an issue of fact as to whether the coverage limits applicable to the medical services rendered by plaintiff were previously exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479 [1996]).

To the extent the denial of claim forms annexed to the parties’ motion papers established that defendant failed to pay the sum of $3,935.24 upon the remaining claims, plaintiff was entitled to summary judgment for said amount since 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 lack of medical necessity, the defendant is precluded from asserting said defense (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 Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). In the instant case, defendant’s denial of claim forms with respect to said claims, and the accompanying explanation of benefit forms, merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denials of claims were otherwise devoid of any factual basis for the denials, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claims.

Therefore, plaintiff’s cross motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $3,935.24. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on said amount pursuant to Insurance Law § 5106 and the regulations promulgated thereunder and for all further proceedings on the remaining $687 claim.

Pesce, P.J., and Rios, J., concur. [*4]

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.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 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 (George J. Silver, J.), entered July 12, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

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

On the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Alden Banniettis, counsel for the plaintiff, pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by appearing before this court, at 141 Livingston Street, 15th Floor, in the County of Kings, on September 5, 2006, at 2:00 P.M., for a hearing at which Mr. Banniettis is directed to personally appear. The Acting Chief Clerk of the court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and the order entered hereon by regular mail.

In this action to recover first-party no-fault benefits for medical services rendered to 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 request for an examination under oath (EUO) did not toll the 30-day period within which defendant was required to pay or deny the claims (11 NYCRR 65-3.8 [c]) since the insurance regulations in effect prior to April 5, 2002 did not provide for EUOs as a form of verification (Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Inasmuch as [*2]defendant failed to pay or deny the claims within the 30-day prescribed period, 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 the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). In opposition to plaintiff’s motion for summary judgment and in support of defendant’s cross motion for summary judgment, defendant’s attorney submitted the EUO transcripts of plaintiff’s assignor, a passenger in the vehicle involved in the collision, as well as that of the driver of this vehicle. These transcripts reveal that the driver of the vehicle “withdrew” his claim with prejudice when confronted at his EUO with suspicious facts concerning the five or six accidents that he and members of his family had within the past year. At the EUO of the assignor herein, which commenced immediately after the driver’s EUO, plaintiff’s assignor likewise “withdrew” her claim after consulting with the driver.

While we note that, pursuant to Insurance Regulation § 65-3.11 (d), an assignor may “not unilaterally revoke the assignment after the services” have been rendered, nevertheless, the foregoing facts were sufficient to demonstrate that defendant’s refusal to pay the claim 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]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50861[U] [App Term, 2d & 11th Jud Dists]). This presented an issue of fact as to whether there was a lack of coverage. Consequently, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment should have been denied.

As noted above, in support of its cross motion for summary judgment, the defendant submitted evidence of the “withdrawals” by both the host driver and the assignor of their claims in this case. Despite being advised of this development, and being provided with the background information which led to the “withdrawals,” plaintiff’s counsel submitted a reply affirmation wherein he continued to seek summary judgment in favor of his client. After having been unsuccessful in his efforts to obtain summary judgment in favor of his client, and despite being faced with facts which clearly support a founded belief of fraud, plaintiff’s counsel took an appeal from that portion of the order which denied the plaintiff’s motion and on appeal continued to contend that his client was entitled to summary judgment.

In Matter of Wecker v D’Ambrosio (6 AD3d 452, 453 [2004]), the Appellate Division, Second Department, stated the following:

“Conduct during a litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false (see 22 NYCRR 130-1.1). At the least, it must have a good faith basis (see Kamruddin v Desmond, 293 AD2d 714 [2002]; see also 22 NYCRR 130.1.1a [b]; Matter of Laing v Laing, 261 AD2d 622 [1999]; Levy v Carol Mgt. Corp., 260 AD2d 27 [1999]).”

Accordingly, counsel is directed to appear before this court for a hearing to address whether the prosecution of so much of the appeal as sought summary judgment in favor of plaintiff constituted “conduct [which] was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel …” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1[c]; see also Matter of Wecker v D’Ambrosio, 6 AD3d 452, supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: July 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an amended order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 8, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

On the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Marylou A. Paolucci, counsel for the plaintiff, pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by appearing before this court, at 141 Livingston Street, 15th Floor, in the County of Kings, on September 5, 2006, at 2:00 P.M., for a hearing at which Ms. Paolucci is directed to personally appear. The Acting Chief Clerk of the court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and the order entered hereon by regular mail.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the claim forms, 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 failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]). As a result, defendant was precluded from raising [*2]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 the 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]).

The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial 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]; see also Amaze Med. Supply Inc. v AIU Ins.
Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51629[U] [App Term, 9th & 10th Jud Dists]). It set forth, inter alia, that the insured vehicle, a 1990 Toyota Camry, was involved in five accidents within seven months under two different insurance policies written by defendant. In the subject accident, the driver of the vehicle was Pedro Fernandez, the husband of the insured, Victoria Fernandez. In a subsequent accident involving the same 1990 Toyota, the driver was again Pedro Fernandez and the adverse driver was Gilberto Rivas. Thereafter, ownership of the 1990 Toyota was transferred to Gilberto Rivas and he too was involved in an automobile accident while operating this vehicle. The Fernandezes and Mr. Rivas claim not to know each other. In view of the foregoing, as well as additional facts set forth in said affidavit, an issue of fact exists as to whether there was a lack of coverage. Consequently, plaintiff’s motion for summary judgment was properly denied.

We are aware that plaintiff’s counsel, Marylou A. Paolucci, was substituted as counsel for plaintiff after plaintiff’s appellate briefs were served by outgoing counsel. Nevertheless, as noted above, despite being faced with facts which clearly support a founded belief of fraud on the part of plaintiff’s assignor, Ms. Paolucci continued in the prosecution of the appeal from so much of the order as denied plaintiff’s motion for summary judgment.

In Matter of Wecker v D’Ambrosio (6 AD3d 452, 453 [2004]), the Appellate Division, Second Department, stated the following:

“Conduct during a litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false (see 22 NYCRR 130-1.1). At the least, it must have a good faith basis (see Kamruddin v Desmond, 293 AD2d 714 [2002]; see also 22 NYCRR 130.1.1a [b]; Matter of Laing v Laing, 261 AD2d 622 [1999]; Levy v Carol Mgt. Corp., 260 AD2d 27 [1999]).”

Accordingly, counsel is directed to appear before this court for a hearing to address whether the prosecution of so much of the appeal as sought summary judgment in favor of plaintiff constituted “conduct [which] was continued when its lack of [*3]
legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel …” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1[c]; see also Matter of Wecker, 6 AD3d 452, supra).

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

Rios, J., taking no part.
Decision Date: July 14, 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 October 11, 2005, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Julia I. Rodriguez, J.) dated October 31, 2005, affirmed, with $10 costs.

Plaintiff, a health care provider seeking to recover no-fault benefits for services rendered to its assignor, established a prima facie entitlement to summary judgment by proof that it submitted its claim form setting forth the fact and the amount of the loss and that payment of benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are inapplicable until the issuance of new or renewal policies containing the revised endorsement (see SZ Med. Servs. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A][2005]). Nor may defendant base its right to an EUO on the provisions of the policy requiring the claimant’s “cooperation” because the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]).

This constitutes the decision and order of the court.
Decision Date: July 14, 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 June 1, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment, which motion defendant opposed. The court below denied said motion by order entered June 1, 2005 and this appeal ensued.

At the outset we find that the letters defendant asserts are verification requests for plaintiff’s $494.37, $359.35 and $815.36 claims are insufficient to act as such and, therefore, did not toll the statutory time period in which defendant had to pay or deny these claims (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Consequently, defendant’s denials as to these claims were untimely and it is precluded from raising the defenses proffered herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It is noted that defendant paid $565.70 on plaintiff’s $815.36 claim.

There is no merit to plaintiff’s contention that the defense of lack of medical necessity is precluded as to its $1,972.08 and $1,573.24 claims because defendant failed to provide it with a copy of the peer review report. We note that defendant failed to establish that it sent a copy of the peer review report within the 30-day claim denial period. Although the regulations set forth that plaintiff may request a copy of the peer review report (see 11 NYCRR 65-3.8 [b] [4], formerly 11 NYCRR 65.15 [g] [2] [iv]), they provide no sanctions for an insurer’s failure to do so. Nevertheless, the lack of medical necessity defense is precluded on another ground. To preserve the defense of lack of medical necessity, defendant’s denial of claim forms must assert, with the requisite specificity, the necessary facts and medical rationale to establish such defense (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]), thereby satisfying the NF-10 form’s requirement that the basis of any denial be “fully and explicitly” set forth (see A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]; Park Neurological Servs. P.C. v Geico Ins., 4 Misc 3d 95, 96 [App Term, 9th and 10th Jud Dists 2004]). Herein, the denials were factually insufficient and thus, while timely, did not avoid preclusion (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 53 [App Term, 2d & 11th Jud Dists 2005]). Moreover, the affirmed peer review report defendant submitted in opposition to plaintiff’s motion for summary judgment (the contents of which, contrary to plaintiff’s contention, established a triable issue as to the medical necessity of the services rendered) does not remedy the factual insufficiencies of the denials (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]).

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an [*3]
assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states: [*4]

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 12, 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 March 18, 2005. The order denied plaintiff’s 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 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud
Dists 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 timely denied the claims on the ground of lack of medical necessity based upon a peer review report. The peer reviewer set forth a “factual basis and medical rationale” (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 97 [App Term, 9th & 10th Jud Dists 2004]) for his conclusion that there was no medical necessity for the supplies furnished based on the documentation provided to him. This was sufficient to raise a triable issue of the supplies’ medical necessity. We note that contrary to plaintiff’s contention, under the facts presented the [*2]reviewer’s mere reference to unavailable reports and notes does not require the inference that the reviewer considered the information in his possession insufficient to permit a medical necessity determination and that recourse to the verification process was necessary to amplify the record. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., and Belen, 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: July 12, 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 (Bernice Daun Siegal, J.), entered May 26, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s cross 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 health care services rendered to its assignor, plaintiff established 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 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 denying plaintiff’s cross motion for summary judgment, the court below referred to the allegedly defective NF-3 form which contains an unreadable marking in the provider’s signature space, an allegedly defective assignment and an allegedly defective supporting affidavit by someone without personal knowledge of the facts. However, these deficiencies were waived because the defendant failed to timely seek verification of the assignment or the NF-3 form (A.B. [*2]Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s cross motion for summary judgment, the defendant conceded that it had received plaintiff’s claim form and indicated the date of receipt on its denial of claim form. This adequately established that plaintiff sent and defendant received said claim (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]). Defendant made the conclusory allegation, by one without personal knowledge of the facts, that it had sent several requests for independent medical examinations (IMEs) and that plaintiff’s assignor failed to appear. Since defendant failed to describe the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to create a triable issue of fact (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, plaintiff’s cross motion for summary judgment should have been granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., 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: July 7, 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 (Howard G. Lane, J.), entered August 17, 2004. The order, insofar as appealed from, granted plaintiff’s motion for partial summary judgment as to its ninth cause of action and denied defendant’s cross motion for partial summary judgment as to said cause of action.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for health services rendered to its assignor. Plaintiff moved for partial summary judgment as to its first, fifth, seventh and ninth causes of action, and defendant cross-moved for partial summary judgment as to plaintiff’s first and ninth causes of action. The order, insofar as appealed from, granted plaintiff’s motion for partial summary judgment as to its ninth cause of action ($1,360.48 claim of assignor Isabel Gonzalez) and denied defendant’s cross motion for partial summary judgment as to said cause of action.

Plaintiff established its prima facie entitlement to partial summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment [*2]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]). Despite defendant’s untimely denial of plaintiff’s claim for the sum of $1,360.48, defendant was not precluded from asserting the defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488 [2001]). In support of its cross motion for summary judgment, defendant contended that the assignor, Isabel Gonzalez, was not an “eligible
injured person” (11 NYCRR 65-1.1 [d]) since she did not “regularly reside[]” (11 NYCRR 65-1.1[g]) with the insured, Sarito Gonzalez, and, as such, was not a relative of Mr. Gonzalez entitled to coverage under his insurance policy. We note that the Mandatory Personal Injury Protection Endorsement, as set forth in 11 NYCRR 65-1.1 (g), defines a relative as “a spouse, child or other person related to the named insured by blood, marriage or adoption (including a ward or foster child), who regularly resides in the insured’s household, including any such person who regularly resides in the household, but is temporarily living elsewhere.”

Defendant’s assertion, both in the affirmation of counsel and in the affidavit of its litigation examiner, that Isabel Gonzalez did not reside with the insured, was conclusory in nature and unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) and therefore, was insufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d 195, 199 [1997]). Accordingly, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage, and similarly failed to establish its entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In view of the foregoing, the lower court properly granted [*3]
plaintiff’s motion for partial summary judgment as to its ninth cause of action and denied defendant’s cross motion for partial summary judgment as to said cause of action.
Rios and Belen, JJ., concur.

Golia, J.P., concurs in part and dissents in part in a separate memorandum.

PSYCH. & MASSAGE THERAPY ASSOC., PLLC
Assignee of GREGORY PRZYBOROUWSKI, HECTOR MORALES
SONIA GUARDADO, DICSIANA REYES and ISABEL GONZALEZ,

Respondent,

-against-

PROGRESSIVE CASUALTY INS. CO.,

Appellant.

Golia, J.P., concurs in part and dissents in part and votes to modify the order, insofar as appealed from, by providing that plaintiff’s motion for partial summary judgment as to its ninth cause of action is denied in the following memorandum:

I agree with the majority that “…defendant was not precluded from asserting the defense of lack of coverage…” even though such defense was not raised in a “timely” denial.

I, however, do not agree with the majority in their holding that the issue raised by the defendant “was insufficient to demonstrate a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” because the affidavits by the defendant were conclusory and unsupported by competent evidence. In point of fact, the plaintiff’s own submitted documents list the residence of its assignor Isabel Gonzalez to be at 342 Wyona Street in Brooklyn, New York which is not the residence of the insured.

This fact alone raises a “founded belief” that the plaintiff’s assignor was not an eligible insured entitled to receive no-fault benefits, certainly sufficient to warrant a denial of plaintiff’s motion for summary judgment.
Decision Date: July 6, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered November 2, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson; as so modified, affirmed without costs.

In this action by a subrogee to recover excess no-fault benefits paid on behalf of its insured, plaintiff, in moving for summary judgment, submitted an affidavit by its insured wherein she stated that her vehicle was legally stopped when defendant Ronnie Lee Nelson, the driver of the corporate defendant’s truck, backed the truck into her vehicle. Plaintiff thus met its initial burden on the motion with respect to the issue of defendant Nelson’s negligence in the operation of the truck, thereby shifting the burden to defendants as to said issue (see Vehicle and Traffic Law § 1121 [a]; see also Garcia v Verizon N.Y., Inc., 10 AD3d 339, 340 [2004]; Pressner v Serrano, 260 AD2d 458, 459 [1999]). Defendants’ opposition papers, which did not include an affidavit from defendant Nelson, failed to raise any triable issue of fact with respect to the issue [*2]of Nelson’s negligence. Accordingly, we deem it an established fact for all purposes in this action that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson (CPLR 3212 [g]). However, plaintiff is not entitled to summary judgment generally on the issue of liability with respect to its claim to recover excess no-fault benefits because there are triable issues of fact with respect to a[*3]release executed by plaintiff’s insured in favor of defendants (see generally Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383 [1984]; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086 [2005]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 3, 2006