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 (Donald S. Kurtz, J.), entered May 24, 2005. The order, insofar as appealed from, granted defendant’s motion for severance and denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits as the assignee of 11 alleged eligible injured persons. The claims arose out of 11 separate accidents. Defendant failed to timely answer, and a default judgment was subsequently entered. Defendant moved to vacate the default judgment and sever the causes of action. Plaintiff subsequently cross-moved for summary judgment. Thereafter, by order dated May 24, 2005, the court granted that part of defendant’s motion seeking severance of the causes of action, denied, as moot, that part seeking vacatur of the default judgment “in that plaintiff has consented to vacate the default judgment,” and denied plaintiff’s cross motion for summary judgment “as it was filed in violation of a stay imposed by order to show cause dated August 24, 2004.” The instant appeal by plaintiff ensued.

A review of the record indicates that defendant’s answer clearly places at issue, inter alia, whether there was fraud as to the accidents and the necessity and reasonableness of the medical services rendered. We find that these defenses are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical. Accordingly, the court below providently exercised its discretion in granting defendant’s motion to sever plaintiff’s causes of action (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; S.I.A. Med. Supply [*2]Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]). In view of the foregoing, plaintiff’s cross motion for summary judgment was properly denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: May 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered 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 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]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, defendant provided evidence demonstrating the timely mailing of its denial of claim, based upon plaintiff’s assignor’s failure to appear for a pre-claim independent medical examination (IME) (see 11 NYCRR 65-3.8 [c]), as well as its letters to plaintiff’s assignor requesting the IME. Moreover, the record establishes that plaintiff’s assignor failed to appear for the scheduled IME. In view of the foregoing, in our opinion, plaintiff’s motion for summary judgment was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App [*2]Term, 2d & 11th Jud Dists]).

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
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o MARTA YEPES,
Appellant,

-against-

ALLSTATE INSURANCE COMPANY,
Respondent.

Golia, J.P., 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: May 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 (Anna Culley, J.), entered October 20, 2004. The order, insofar as appealed from, granted plaintiff’s motion to the extent of awarding plaintiff partial summary judgment in the sum of $1,997.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to plaintiff’s assignor, plaintiff’s motion for summary judgment was granted as to its claims for $874 and $1,123, and denied as to two other claims. The instant appeal by defendant ensued.

The plaintiff established its prima facie entitlement to summary judgment on both claims since it provided proof that it submitted these 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 presumption that an addressee received an item by mail 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 (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s corporate officer alleged that it is plaintiff’s usual procedure to send billing by certified mail and he attached to the moving papers signed post office ledgers listing defendant as addressee, date stamped April 23, 2003 for the $874 claim and June 4, 2003 for the $1,123 claim. Thus, plaintiff made a prima facie showing of its entitlement to summary judgment thereby shifting the burden to defendant to come forward with a triable issue of fact (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). [*2]

Defendant’s denial of claim form, in regard to the claim in the amount of $1,123, indicates that defendant’s denial was not timely made during the 30-day statutory period within which it was required to pay or deny said claim (11 NYCRR 65-3.8 [c]). The record contains no NF-10 denial of claim form for the $874 claim. Moreover, defendant’s requests for examinations under oath (EUOs) did not toll the 30-day claim determination period since its papers in opposition to plaintiff’s motion for summary judgment failed to demonstrate that the policy in effect contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In view of the foregoing, defendant failed to show that its time to deny the claims was tolled (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, defendant is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, plaintiff is entitled to summary judgment on the $1,123 claim as well as the claim in the amount of $874.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: May 17, 2006

[*1]

Supreme Court, Appellate Term, Second Department, May 17, 2006

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Jaffe & Nohavicka, New York City, and Thomas Torto and Kathleen C. Waterman, New York City, for respondent.

{**12 Misc 3d at 53} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiffs’ motion for summary judgment granted as to plaintiff SZ Medical P.C.’s claims for $182.37 and $532.42, plaintiff JH Chiropractic P.C.’s claims for $168.50 and $256.94, and New Wave Oriental Acupuncture P.C.’s claim for $660.56 and its two claims for $700, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical treatment provided to their assignor, plaintiffs SZ Medical P.C., JH Chiropractic P.C., and New Wave Oriental Acupuncture P.C. established their prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and 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]). The burden then shifted to defendant to establish triable issues of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

We note at the outset that in its claim denial form, defendant considered SZ Medical P.C.’s claim for $473.20 as a claim for $532.42, the correct total of the charges for the various treatments set forth in the claim form, and we so modify the amount sought (A.B. Med. Servs. PLLC v Allstate Ins. Co., 8 Misc 3d 137[A], 2005 NY Slip Op 51270[U] [App Term, 2d &{**12 Misc 3d at 54} 11th Jud Dists 2005]). As [*2]to JH Chiropractic P.C.’s claim for $256.94, defendant proved no denial, nor did it assert any ground to excuse its failure to pay or deny the claim within the statutory time (Insurance Law § 5106 [a]), and JH Chiropractic P.C. is therefore entitled to summary judgment thereon. Although defendant proved timely denials of plaintiffs’ remaining claims, insofar as they were based on the defense of lack of medical necessity of the services rendered, they were factually insufficient, conclusory and vague, and thus without 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]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]). Defendant denied SZ Medical P.C.’s claim for $532.42 following a “medical review” which determined that the provider had failed to prove the treatment’s medical necessity. The denial form also stated that, on the basis of an independent medical examination (IME), the eligible injured person required no further treatment. Defendant denied JH Chiropractic P.C.’s claim for $168.50 and both of New Wave Oriental Acupuncture P.C.’s claims for $700 as lacking medical necessity, also on the basis of a “medical review” (or “medical audit”). No IME report was attached to the claim denial forms nor did said forms include sufficient factual assertions derived from the report or a medical rationale based thereon to establish the defense of lack of medical necessity in the absence of the report (e.g. Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 7 Misc 3d 135[A], 2005 NY Slip Op 50743[U] [App Term, 2d & 11th Jud Dists 2005]).

Although plaintiffs, in their moving papers, attached a copy of an unsworn nurse’s peer review report to copies of certain of defendant’s claim denial forms, said report did not assert sufficient facts and a medical rationale based thereon to establish a lack of medical necessity (Chi-Ti Acupuncture, P.C. v Hartford Acc. & Indem. Co., 10 Misc 3d 146[A], 2006 NY Slip Op 50148[U] [App Term, 2d & 11th Jud Dists 2006]). We note, in any event, that a nurse’s unsworn peer review report is inadmissible and therefore of no probative value (Dombrowski v Moore, 299 AD2d 949, 951 [2002]), and defendant offered no excuse for its failure to submit the report in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]). Moreover, a nurse is a mere lay informant for purposes of medical diagnosis and treatment, and is not competent to render medical opinions (Dombrowski v Moore, 299 AD2d at 951){**12 Misc 3d at 55} absent an accounting of his or her training, observations or experience sufficient to establish such competence (Medwide Med. Supply Inc. v Country-Wide Ins. Co., 8 Misc 3d 131[A], 2005 NY Slip Op 51078[U] [App Term, 2d & 11th Jud Dists 2005]; Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists 2004]; see People v Morehouse, 5 AD3d 925, 928 [2004]; People v Munroe, 307 AD2d 588, 591 [2003]).

Defendant’s denial of JH Chiropractic P.C.’s claim for $168.50 as untimely is without merit. Defendant acknowledged receipt of the claim on the 45th day from the date the first treatment listed therein was rendered thereby necessarily conceding that it was timely submitted, i.e., mailed (see 11 NYCRR 65-1.1 [claims must be submitted within “45 days after the date (the) services (were) rendered”]; NY State Ins Dept Informal Op No. 03-06-30 [June 30, 2003] [“the 45 day period for mailing of a written proof of claim . . . begins the day after the services are rendered”]). With respect to SZ Medical P.C.’s claim for $182.37, and New Wave Oriental Acupuncture P.C.’s claim for $660.56, plaintiffs do not dispute that they failed to submit their claims in the requisite time. However, 11 NYCRR 65-1.1 provides that: “The . . . time limitations for the submission of proof of claim shall apply unless the eligible injured person [or that person’s representative] submits written proof providing [*3]clear and reasonable justification for the failure to comply with such time limitation.” Further, 11 NYCRR 65-3.3 (e) provides:

“When an insurer denies a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.” (Emphasis added.)

Defendant points to no portion of its claim denial forms which contain the required advisement, nor does it allege that it communicated said advice in any other manner. Accordingly, defendant waived reliance on the 45-day rule as a basis to deny the claims and plaintiffs should be awarded summary judgment on these claims as well.

Finally, defendant’s challenge to the absence of an authentication of assignor’s signatures on the assignment of benefits forms is also without merit. We have held that the failure to authenticate{**12 Misc 3d at 56} an assignor’s signature cannot be considered an assignment defect “in the absence of any statutory or regulatory requirement for the same” (Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U], *2 [App Term, 2d & 11th Jud Dists 2005]). Even if such absence rendered the assignment defective, defendant’s failure to seek verification of the assignment, within 10 days of the claims’ receipt and to allege such deficiency in its claim denial forms, constituted a waiver of any defense with respect thereto (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists 2005]).

In view of the foregoing, plaintiffs’ 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 attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Golia, J.P. (concurring with the result only): I am constrained to agree with the 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.

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

Consolidated appeal from orders of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered on July 19, 2004 and December 23, 2004. The order entered July 19, 2004 denied defendant’s motion for renewal of plaintiffs’ motion to enter a default judgment and defendant’s cross motion for summary judgment seeking, in effect, to open the default and to compel plaintiffs to accept defendant’s answer. The order entered December 23, 2004, insofar as appealed from, upon [*2]

granting defendant’s motion for reargument, adhered to its prior determination in the order entered July 19, 2004.

Appeal from order entered July 19, 2004 dismissed as superseded.

Order entered December 23, 2004 modified by providing that, upon reargument, so much of defendant’s prior motion as sought renewal and, upon renewal, vacatur of the portion of the order entered February 6, 2004 which had granted plaintiffs’ underlying motion to enter a default judgment and denied defendants’ cross motion is granted, plaintiffs’ underlying motion to enter a default judgment denied, and defendant’s cross motion granted to the extent of permitting defendant to file and serve its answer within 30 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits in the sum of $23,022.23, plaintiffs initially moved for an order directing entry of a default judgment upon defendant’s failure to appear and answer. In order to establish entitlement to a default judgment, plaintiffs were required to proffer proof that they submitted the claims to defendant, 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]). Plaintiffs failed to establish the submission of the claim forms to defendant. In his affidavit, plaintiffs’ “practice and billing manager” alleged that he “issued all of the billings,” that he “personally billed out the claim,” and that “[a]ll billing of plaintiff was sent to defendant.” The foregoing allegations in the affidavit are insufficient to demonstrate personal knowledge of the mailing of the claim forms, and do not contain an adequately detailed description of standard office mailing procedure so as to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Accordingly, having failed to establish the facts constituting the claim (CPLR 3215 [f]), namely, the submission of the claims to defendant, upon reargument, the motion by defendant for renewal should have been granted and plaintiffs’ underlying motion for leave to enter a default judgment denied.

Moreover, the court erred in adhering to that portion of its earlier order which denied renewal of the underlying cross motion. While generally delay by an insurer will not be acceptable as a reasonable excuse for a default (see A.B. Med. Servs. PLLC v Travelers Prop. Cas. Co., 6 Misc 3d 53 [App Term, 2d & 11th Jud Dists 2004]), that rule is not absolute. “[W]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits . . . [There is] no basis to categorically exclude consideration of a delay by an insurance company in making such a determination” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]). In the instant case, there was a sufficient showing to establish a reasonable excuse for the defendant’s default in answering, particularly in light of the initial delay by the office of the Superintendent of Insurance, upon which service was made, in forwarding process to defendant. Moreover, defendant’s submissions in support of its cross motion adequately demonstrated that it had a [*3]meritorious defense.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: April 28, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sarah L. Krauss, J.), entered December 7, 2004. The order denied plaintiffs’ motion for partial summary judgment seeking to recover the sum of $6,544.71.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs health care providers failed to establish a prima facie entitlement to partial summary judgment by proof that they submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (cf. 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 affidavit of David Safir, wherein he states that he is “the medical billing manager of the plaintiff provider companies,” does not specify for which of the three plaintiffs he is the billing manager, and this court should not assume that he was acting on behalf of all three providers (see R.M. Med. P.C. v Lumbermans Mut. Cas. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50859[U] [App Term, 2d & 11th Jud Dists]). Indeed, Safir’s vague use of the word “companies” can also be construed to mean any two of the three provider companies. In these circumstances, the affidavit is insufficient to establish plaintiffs’ prima facie entitlement to partial [*2]summary judgment.

Accordingly, we affirm the order of the court below, which denied plaintiffs’ motion for partial summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: April 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 (Dolores L. Waltrous, J.), entered on March 3, 2005. The order granted plaintiff’s motion for summary judgment.

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

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary [*2]
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]). Any deficiencies in plaintiff’s moving papers concerning proof of its submission of the claims were cured by defendant’s denial of claim forms attached to plaintiff’s moving papers, which adequately established that plaintiff sent, and that defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists]; Ultra DiagnosticsImaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th 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]).

Defendant’s denials of plaintiff’s claims were not timely made within the 30-day statutory period within which it was required to pay or deny the claims (11 NYCRR 65-3.8 [c]). While an insurer’s timely verification requests and compliance with the follow-up verification requirements may extend the 30-day period (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]), defendant’s contention that its request that plaintiff’s assignor execute and return the transcript of his examination under oath (EUO) tolled the 30-day period is without merit since the insurance regulations in effect at the time the claims were submitted did not even require the claimant to appear for an EUO (see Ocean Diagnostic Imaging P.C. v State
Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). In any event, even assuming that a request that a claimant execute and return an EUO transcript would constitute a valid basis for tolling the 30-day claim determination period, defendant herein failed to proffer proper proof of having mailed said request (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). 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]).

Defendant also opposed the motion on the ground of fraud. To the extent that defendant’s claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, these are defenses subject to the 30-day preclusion remedy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra; Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2005]; Melbourne Med., P. C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of
the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendant’s submissions were 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 at 199).

Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 14, 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 (Erica L. Prager, J.), entered December 14, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover $8,388.13 in first-party no-fault benefits for health care services provided plaintiff’s assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm. Defendant denied receiving the instant claims and plaintiff’s only proof that it submitted its claims was the provider’s statement that “[e]ach of the claims for payment were [sic] timely submitted in the ordinary course of business to [defendant].” Such an assertion failed to prove a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Although plaintiff proved a claim denial form used by defendant which denied “all” of plaintiff’s claims, the form admitted receipt of no specific claim and cannot be construed to concede that defendant received the specific claims herein at issue.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: April 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, Kings County (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Appeal insofar as taken by plaintiff Square Synagogue Transportation Inc. dismissed.

Order, insofar as appealed from, reversed without costs, motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

This action to recover $7,762.98 in assigned first-party no-fault benefits arises from a July 19, 2002 motor vehicle accident which has resulted in two related appeals involving different assignors, which have already been decided by this court: A. B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U] [App Term, 2d & 11th Jud Dists]).

In the instant case, plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C., all providers of health care services, established their prima facie entitlement to summary judgment by proof that they submitted statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was [*2]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 create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s December 4, 2002 claim denial was untimely as to all claims with the exception of plaintiff A.B. Medical Services PLLC’s claims for $67.60 and $33.70, and plaintiff Lvov Acupuncture P.C.’s claim for $85. Since the instant claim denial form lacked almost all of the information required for a properly executed form, including the critical information as to the amounts and dates of the claims, and the dates the claims were received, it was tantamount to no denial at all (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [“(A) denial of a claim form issued by (an insurer). . . even if timely, (is) fatally defective (if) it omit(s) numerous items of requested information and thus (is) incomplete”]; see also 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004] [the insurer’s “denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form”]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996] [preclusion sanction properly imposed where the insurer “fail(ed) to establish that it issued to the (claimant) a properly completed Denial of Claim Form within the (prescribed) 30-day period”]).

Defendant also failed to establish its defense that the incident was staged as part of a scheme to defraud. The proof offered in the instant case was virtually identical to that offered in the cases of A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50, supra) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U], supra) and, as we noted in those cases, none of the proof offered was sufficient to establish said defense: the investigators’ reports and the statements of the operators of the vehicles involved in the accident were unsworn; defense counsel’s affirmation contained allegations which were not based upon personal knowledge; statements in the affidavit of defendant’s employee regarding “material misrepresentations” in the presentation of the claims were conclusory; and neither the affirmation nor the affidavit sufficed as a proper basis for the admission of the unsworn investigative reports.

Thus, notwithstanding the fact that defendant was not precluded from asserting the defense that the incident was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), its submissions were insufficient 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 [1999]). Accordingly, defendant failed to demonstrate 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]).

We note that plaintiff Square Synagogue Transportation Inc. properly concedes in the brief that it is not entitled to the relief sought in the motion below and withdraws its claims (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, supra).

Accordingly, the order, insofar as appealed from, is reversed, the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. is granted, and the matter is remanded to the court below for a calculation of [*3]statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 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 (Delores J. Thomas, J.), entered April 12, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on May 6, 2005. The judgment awarded plaintiff the sum of $1,091. The appeal brings up for review the order, entered April 12, 2005, which granted plaintiff’s motion for summary judgment.

Judgment affirmed without costs.

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 statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The defendant’s denial of claim form indicates that the claim was denied beyond 30 days of its receipt by defendant (11 NYCRR 65-3.8 [c]).

In opposition to plaintiff’s motion, defendant argued, inter alia, that it issued a proper and timely denial based on the assignor’s failure to attend examinations under oath (EUOs). The revised insurance regulations, effective on April 5, 2002, which are applicable herein, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). However, in order to assert the defense of failure to appear, “the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the [*2]claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App [*3]
Term, 9th & 10th Jud Dists]; see also Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; 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]). In the instant case, defendant’s submissions failed to establish that the insurance policy contained an endorsement authorizing EUOs. Accordingly, any post-claim EUO request by defendant cannot toll the 30-day period within which it was required to pay or deny the claim (see Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). In any event, defendant has failed to prove mailing of the EUO notices, since there was no allegation by one with personal knowledge that the EUO notices were mailed, no description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), and no sufficient allegation that it complied with the follow-up requirements with regard to any post-claim EUO notice (see 11 NYCRR 65-3.6 [b]). Further, the purported post-claim EUO notice dated July 15, 2002, for which there was no admissible proof of mailing, does not [*4]
constitute proper notice of EUOs, as it merely indicates a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Having failed to establish a timely denial of the claim, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of nonconformity with the Worker’s Compensation fee schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). The court below properly determined that defendant’s failure to seek verification of the assignment and to allege any deficiency in the assignment in a timely denial of claim form, in any event, constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna [*5]
Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly granted.

Defendant has failed to preserve its remaining contention for appellate review, and its submissions in support thereof involve matters dehors the record which are not reviewable for the first time on appeal.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006