SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered July 11, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny its claims within 30 days of their receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). In its opposition papers, defendant stated that it sent plaintiff timely requests for verification which tolled the 30-day period within which it was obligated to pay or deny the claims. After receiving the requested verification, defendant paid a portion of plaintiff’s bills and timely denied the remaining balance based on the ground that the fees charged by plaintiff for the services rendered were in excess of the Workers’ Compensation fee schedule. The lower court granted plaintiff’s motion for summary judgment on the ground that defendant failed to establish that it timely mailed the requests for further verification and, thus, the 30-day statutory time period within which it was required to pay or deny each claim was not tolled.

We disagree with the lower court’s finding that defendant failed to establish the timely mailing of its verification requests. In an affidavit annexed to defendant’s opposition papers, defendant’s claims examiner stated that “[i]t is [defendant’s] business practice to mail all verification requests to the address the applicant lists on the bill on the same day the verification request is generated. In compliance with that policy on the day [that] each verification request was generated: 2/25/02, 4/01/02 and 3/19/02, the verification request was mailed to [plaintiff].” In addition, unlike the affidavit of defendant’s claims examiner in the case of Contemp. Med. [*2]Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]), defendant’s claims examiner further stated that he had “personal knowledge of [defendant’s] office practices and policies and [is] responsible for ensuring that they are enforced.” Defendant’s opposition papers thereby sufficiently established the timely mailing of the verification requests since the affidavit of defendant’s claims examiner was from one with personal knowledge of the standard office practice used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In view of the tolling of the 30-day period within which defendant was required to pay or deny the claims, defendant’s denials of claims were not untimely. Accordingly, plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 23, 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 February 25, 2005, deemed an appeal from a judgment of the same court, entered May 13, 2005. The judgment, entered upon the order of February 25, 2005 granting plaintiffs’ motion for summary judgment, awarded plaintiffs the principal sum of $3,947.06.

Judgment reversed without costs, order entered February 25, 2005 vacated, plaintiffs’ motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action to recover first-party no-fault benefits for health care services rendered to their assignor, plaintiffs providers established a prima facie entitlement to summary judgment by proof that they 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]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A given basis for denial of all the claims was that an investigation had revealed that the injuries alleged were not related to the subject motor vehicle accident. In opposition to plaintiffs’ motion, defendant submitted, inter alia, an accident analysis report (referred to as a “low impact study”) accompanied by an affidavit of the technical consultant/accident [*2]reconstructionist who prepared the report. Contrary to the finding of the court below, a low impact study may constitute a proper basis for a denial (see 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]; 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]; 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]), provided it is in admissible form (cf. Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed 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 (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment should not have been granted, and the matter is accordingly remanded for further proceedings.

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 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: June 22, 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 16, 2005. The order granted defendant’s motion to vacate the default judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, a default judgment was entered and defendant moved to vacate same. Upon a review of the record, we find no basis upon which to disturb the lower court’s finding that defendant established both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). Accordingly, the lower court’s order granting defendant’s motion to vacate the default judgment should be affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 22, 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 February 8, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $1,644.74.

Order reversed without costs, plaintiff’s motion for summary judgment denied and, upon searching the record, defendant is awarded summary judgment and complaint dismissed.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of 11 NYCRR 65-3.11 [a] and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (see Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists.]).

In the case at bar, the plaintiff’s claim form states that the treating professional was an independent contractor. Under the circumstances, plaintiff’s motion for summary judgment should be denied and, upon searching the record, summary judgment should be awarded to defendant dismissing the action (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132, supra; see generally Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996]; Murray v Murray, AD3d , 2006 NY Slip Op 02861).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 22, 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 (Valerie Brathwaite Nelson, J.), entered December 27, 2004. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,133, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining portion of the claim; as so modified, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered December 27, 2004, the court below denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint.

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a 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 is insufficient to establish the mailing of the appended claim [*2]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, the claim forms at issue (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]). Thus, plaintiff established a prima facie case entitling it to summary judgment. However, we find that since the prescription for plaintiff’s assignor did not mention a “TENS accessory kit,” for which plaintiff seeks $110 in its claim for the sum of $1,172, plaintiff failed to establish its prima facie entitlement to summary judgment therefor (see Adam’s Med. Supplies v Windsor Group Ins. Co., 3 Misc 3d 126[A], 2004 NY Slip Op 50310[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to establish a triable issue of fact with respect to the $1,071 claim and the $1,062 balance of its $1,172 claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant asserted that the aforementioned claims were timely denied based on a peer review which after it requested certain verification from plaintiff concluded that the supplies allegedly provided were not medically necessary. However, since defendant acknowledged in both denial of claim forms that it received final verification from plaintiff on July 18, 2003 and both denial of claim forms were dated August 26, 2003, defendant failed to timely deny plaintiff’s claim within the statutorily prescribed 30-day period (11 NYCRR 65-3.8 [c]). Accordingly, defendant’s untimely denials of the claims precluded defenses to the action, with exceptions not herein relevant, and warranted the granting of summary judgment in plaintiff’s favor (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

In view of the foregoing, defendant’s cross motion for summary judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,133, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder and for all further proceedings on the remaining portion of the claim.

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. [*3]
Decision Date: June 15, 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 Nassau County, Third District (Sharon Commissiong, J.), entered June 17, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.

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.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff provider moved for summary judgment. The court below found that plaintiff demonstrated its entitlement to judgment as a matter of law but denied the motion on the ground that defendant raised triable issues of fact. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that defendant failed to establish that it timely denied plaintiff’s claims based on the assignor’s failure to attend independent medical examinations, since it did not show that the statutory time period within which it had to pay or deny the claims was tolled by timely verification and follow-up requests. The affidavit by defendant’s claims representative did not demonstrate that defendant mailed verification requests. The affiant did not assert personal knowledge of actual mailing or of facts creating a presumption of same (see A.B. Med. Servs. PLLC v Prudential Prop & Cas Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [App Term, 2d & 11th Jud Dists]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 9th & 10th Jud Dists]). Since defendant’s denial was untimely, it is precluded from interposing the defenses raised in this case (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of [*2]attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: June 8, 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 Nassau County, First District (Scott Fairgrieve, J.), dated September 30, 2004. 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.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, defendant timely denied the claims on the ground of lack of medical necessity. A timely denial alone, however, does not avoid preclusion where said denial is factually insufficient, conclusory or vague, and an insurer seeking to deny benefits based on lack of medical necessity must set forth with sufficient particularity the factual basis and medical rationale underlying that determination (see A. B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, the conclusions of the peer review upon which the denial was based were not supported by a sufficient factual foundation and medical rationale to warrant rejection of the claims and, accordingly, were insufficient to support a defense of lack of medical necessity (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]; see also A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v [*2]Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]). Under the circumstances, defendant has failed to raise a triable issue of fact.

Accordingly, summary judgment is granted in favor of plaintiff 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.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: June 8, 2006

[*1]

Supreme Court, Appellate Term, Second Department, June 7, 2006

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Todd M. Hellman of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

{**12 Misc 3d at 91} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied and defendant’s cross motion to dismiss the complaint or, in the alternative, compel responses to its discovery demands granted to the extent of directing that plaintiff shall respond to those discovery demands which seek information regarding whether plaintiff was fraudulently incorporated, within 30 days of the date of the order entered hereon, or within such other reasonable period as the parties stipulate to in writing.

In this action to recover $1,400 in 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 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]). Contrary to defendant’s contention, plaintiff’s affidavit was sufficient to establish that it mailed the claims to defendant, and its remaining contentions have no merit. The burden then shifted to defendant to show a [*2]triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In February 2003 defendant conducted a preclaim independent medical examination of plaintiff’s assignor after which defendant’s examiner determined that the assignor needed no more acupuncture as of that date. Defendant subsequently denied each claim, by denials dated March, April and May 2003, based on a February report finding the lack of medical necessity. Defendant annexed an unsworn copy of said report to its opposition papers which is in inadmissible form and is, therefore, insufficient to warrant denial of plaintiff’s motion for summary judgment (see A.B. Med. Servs. PLLC v Electric Ins. Co., 7 Misc{**12 Misc 3d at 92} 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists 2005]). Moreover, defendant’s June 2003 general denial of claim form is fatally defective since numerous portions thereof are blank/incomplete (see e.g. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Nevertheless, the defense that plaintiff, a provider of health care services, is not eligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) is not subject to preclusion (see A.B. 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 2006]). Moreover, summary judgment should be denied where the opposition papers set forth that facts essential to justify opposition may exist but cannot then be stated (see CPLR 3212 [f]).

In Mallela (4 NY3d 313 [2005], supra), the Court of Appeals found that insurers may withhold payment of first-party no-fault benefits provided by fraudulently licensed medical service corporations to which patients have assigned their claims. Consequently, we find that discovery requests seeking corporate information to determine whether the owners of a medical service corporation are improperly licensed are germane to the question of whether said corporation is eligible for reimbursement. Pursuant to 11 NYCRR 65-3.16 (a) (12),

“[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such services in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

The Education Law provides that only persons licensed or certified can practice acupuncture in the State of New York (see Education Law § 8212). The Business Corporation Law provides that each shareholder, director or officer of the corporation must be licensed to practice the profession for which the corporation was organized (see Business Corporation Law § 1503 [b]; § 1507).

We find that defendant’s papers establish that so much of defendant’s discovery requests as seek information regarding{**12 Misc 3d at 93} whether plaintiff was fraudulently incorporated are material and necessary (see CPLR 3101) and, thus, said papers set forth that facts essential to justify opposition may exist but cannot now be stated. Consequently, plaintiff’s motion for summary judgment is premature pending the completion of discovery (see CPLR 3212 [f]). It is noted that plaintiff did not oppose the cross motion in the court below. Accordingly, plaintiff’s motion for summary judgment is denied and defendant’s cross motion is granted to the extent of compelling plaintiff to respond to defendant’s discovery demands which seek information regarding the ownership, control and licensing of plaintiff corporation, within 30 days of the date of the order entered hereon. [*3]

Golia, J.P. (concurring with the result only): 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.

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 (Lila Gold, J.), entered August 4, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel depositions to the extent of directing plaintiff to produce an individual with personal knowledge of its billing and distribution procedures.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

All the claims were denied based on excessive billing as well as the results of an investigation which had revealed that the injuries alleged were not related to the motor vehicle accident. In opposition to plaintiff’s motion, defendant submitted, inter alia, an accident analysis report (referred to as a “low impact study”) accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, which may constitute a proper basis for a denial (see 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]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op [*2]50607[U] [App Term, 2d & 11th Jud Dists]; 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]). These submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed 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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied. In addition, defendant raised a triable issue of fact as to excessive billing. As a result, the court below properly directed plaintiff to produce for deposition an individual with personal knowledge of its billing and distribution procedures.

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 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: June 5, 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 M. Spodek, J.), entered March 25, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by granting plaintiff’s motion to the extent of granting partial summary judgment to plaintiff in the sum of $1,050 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider generally establishes its 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 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 defendant’s acknowledgment of receipt of both of plaintiff’s claims in the affidavit of its claims adjuster (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]).

Defendant established that it timely denied both claims. It asserted that the claim for $525 was denied based upon the peer review report of Dr. Corcoran. Said peer review report, which was annexed to the denial of claim form, set forth a factual basis and medical rationale for [*2]Dr. Corcoran’s opinion that the medical equipment was medically unnecessary and, as such, was sufficient to raise a triable issue of fact (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]).

In the court below, and on appeal, plaintiff asserted that defendant may not use an explanation of benefits form in lieu of the prescribed denial of claim form in denying the claim for $1,050. It is well settled that a claim can only be properly denied on the prescribed denial of claim form (see 11 NYCRR 65-3.8 [c] [1]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]). Since the record herein fails to establish that defendant submitted a copy of the required denial of claim form, defendant is precluded from raising any defense as to said claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, supra).

Accordingly, the order is modified by granting plaintiff partial summary judgment as to its $1,050 claim and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claim.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 2, 2006