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 January 14, 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 [*2]
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., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, New York County (Donna G. Recant, J.), entered January 29, 2004, which granted defendant summary judgment dismissing the complaint.

PER CURIAM:

Order (Donna G. Recant), entered January 29, 2004, affirmed, without costs.

In this action to recover no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the health care services were not provided by the plaintiff or its employees, but by an independent contractor. Civil Court granted defendant’s motion. We affirm.

Insurance Department regulation 11 NYCRR 65-3.11 (a) (formerly 11 NYCRR 65.15[j][1]) provides, in relevant part, for the payment of no-fault benefits “directly to the applicant . . . or upon assignment by the applicant . . . [to] the providers of health care services . . . .” Where such services are not performed by the billing provider or its employees, but by a treating provider who is an independent contractor, the billing provider is not entitled to direct payment of assigned no-fault benefits under 11 NYCRR 65-3.11(a) (see New York Insurance General Counsel Opinion No. 05-03-21 [2005] and Opinion No. 01-02-13 [2001]; see also A.B. Medical Services PLLC v Liberty Mutual Ins. Co., 9 Misc 3d 36 [2005]).

The unrefuted evidence establishes that the health care services for which plaintiff seeks no-fault benefits were performed by a treating physician who was an independent contractor, not plaintiff’s employee. Accordingly, plaintiff is not properly considered a “provider” authorized to bill under the no-fault law.

This constitutes the decision and order of the court.
Decision Date: March 30, 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 (Ann E. O’Shea, J.), entered December 29, 2004. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In opposition to the motion, defendant argued that plaintiff’s assignor failed to attend examinations under oath (EUOs) and that the accident was in furtherance of an insurance fraud scheme. However, defendant failed to prove that the applicable insurance policy contained an endorsement authorizing EUOs as a form of verification (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]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 57 [App Term, 2d & 11th Jud Dists 2004]). Thus, the EUO requests did not toll the 30-day claim determination period (11 NYCRR 65-3.8 [c]) rendering the denial untimely (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [*2][App Term, 2d & 11th Jud Dists]).

Although the defense based on a claim that the accident was staged in furtherance of a scheme to defraud survives the preclusive effect of an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), none of the investigative reports and statements offered in support of the fraud claim were in admissible form. Moreover, the attorney’s factual allegations in support of the defense constituted mere inadmissible hearsay and the affirmation of defendant’s claims representative, standing alone, did not establish a triable issue of fraud. Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for [*3]
summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

In the first instance, it is important to note that the majority finds that the defendant properly demanded that the assignor appear for an examination under oath (EUO) on several occasions in accordance with the regulations, and that on each occasion the plaintiff’s assignor failed to appear.

The majority does not contest that the revised regulations issued by the Department of Insurance provide that the plaintiff’s assignor must submit to EUOs as often as the insurer “may reasonably” require (11 NYCRR 65-1.1[d]). Indeed, it is also
uncontested that the claims at issue herein were submitted subsequent to the effective date of the revised regulations. One would surmise that the majority would therefore conclude that this action must be dismissed.

However, that is not the case. Despite all these facts and circumstances, the majority finds that the defendant failed to raise a triable issue of fact solely because it did not produce a copy of the actual contract of insurance to establish that the “right” to demand an EUO was contained in the contract. This holding appears inappropriate, at least when one considers the long line of decisions involving EUOs prior to the issuance of this revised regulation (pre-April 5, 2002) (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]). In that line of cases, it was held that even though the policy of insurance required submission to an EUO, demands for same had no significance inasmuch as there was no specific provision in the regulations providing for such an examination, a finding that I do not agree with.

Now that the Insurance Department revised its regulations to meet said holdings, this Court denies their effect by now requiring the defendant to produce a copy of the insurance policy when it was never required to do so in the past.

It is for this reason that I dissent and would affirm the lower court’s denial of the plaintiff’s motion for summary judgment.
Decision Date: March 27, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered October 29, 2004. The order denied plaintiffs’ motion for summary judgment.

Order modified by granting plaintiff A.B. Medical Services PLLC partial summary judgment in the sum of $11,903.39, and plaintiff D.A.V. Chiropractic P.C. summary judgment in the sum of $134.80; as so modified, affirmed without costs. [*2]

Appeal as taken by plaintiff Lvov Acupuncture P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established their entitlement to summary judgment as to all their claims 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 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]). We note that an absent index number on one of numerous documents submitted in support of an otherwise properly indexed motion was an inappropriate ground to deny the relief sought. While all papers submitted to a court must bear the action’s index number (see CPLR 2101 [c]; Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.5), such a defect is not jurisdictional, and is waived if the opposing party fails to object by returning the paper to the party serving it within two days of receipt “with a statement of particular objections” (CPLR 2101 [f]; Neveloff v Faxton Children’s Hosp. & Rehabilitation Ctr., 227 AD2d 457, 457 [1996]; Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In any event, absent prejudice to a “substantial right of a party,” such defects should be disregarded (CPLR 2101 [f]; e.g. Gau v Kramer, 289 AD2d 804, 805 [2001]).

We also do not agree that the allegedly defective proof of assignments merited the motion’s outright denial. Defendant failed timely to seek verification of the assignments or even specifically to allege a deficiency in the assignments in its claim denial forms, and thereby “waive[d] . . . any defenses with respect [to them]” (Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50790[U] [App Term, 2d & 11th Jud Dists]; see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [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]).

The court below also incorrectly determined that all claim denials were timely; in fact, they were untimely as to numerous claims, specifically, A.B. Medical Services PLLC’s claims with respect to assignor Micheline for $205.46, $182.37, $564.48, $218.35, $71.06, $230.10, and $604.24; with respect to assignor Garraud for $182.37, $586.66, $218.35, $120.00, $230.10, $604.24, $1,972.08, $1,999.12, $71.06, and $71.40; and with respect to assignor Guerrier for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08. As to plaintiff D.A.V. Chiropractic P.C.’s claim for $134.80 for treatment rendered to Guerrier, defendant proved no claim denial
whatsoever. Absent a tolling of the statutory claim determination period or proof that defendant established a triable defense which survives the preclusive effect of an untimely denial, summary judgment should have been granted as to these claims.

As to all of A.B. Medical Services PLLC’s claims regarding assignor Micheline, aside from the claim for $250.88, defendant denied the claims, in part, because plaintiff’s assignor failed to attend a requested examination under oath. However, defendant produced no documentary proof that it mailed assignor a written examination request, nor did its affiant assert personal knowledge of actual mailing or of facts creating a presumption of same, nor was there [*3]any admission of receipt by plaintiff, its assignor, or assignor’s representative (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). Additionally, defendant also offered no proof that the instant insurance policy contained an endorsement authorizing such a form of verification (id.). Thus, defendant failed to toll the claim determination periods by a proper verification request.

Insofar as defendant denied certain of the claims on the ground that plaintiff A.B. Medical Services PLLC is not formed and operated “in accordance with Article 15 of the [Business Corporation Law],” a defense sounding in fraud (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005] [“State Farm’s complaint centers on fraud in the [*4]
corporate form rather than on the quality of care provided”]) which survives the preclusion sanction (id. at 320), defendant failed to assert a factual basis in its opposition papers sufficient to support a “founded belief” that A.B. Medical Services PLLC is ineligible to obtain no-fault benefits by reason of a fraudulent corporate filing (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Given A.B. Medical Services PLLC’s unrebutted proof that it has a duly registered corporate presence in New York, defendant’s bare, conclusory assertion in opposition to the motion, that said plaintiff is not formed or operated in accordance with the Business Corporation Law, failed to establish a triable issue of material fact.

The remaining, conclusorily asserted defenses, that the billing is “inaccurate or misleading” and not in accordance with the fee schedules, that plaintiff failed to prove the employment status of the particular provider, and that the treatment “was not related to the accident,” all fail to survive the preclusive effect of an untimely denial, and in any event, as to the claims timely denied, they are without merit (id.; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581, 582 [2005]; New York Hosp. Med. Ctr. of Queens v Country-wide Ins. Co., 295 AD2d 583, 586 [2002]; Rockaway Blvd. Med. P.C. [*5]
v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]; Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864[U] [App Term, 9th & 10th Jud Dists]; 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]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

As for all claims regarding assignor Garraud, whether timely or untimely denied, the defenses and merits thereof are as previously stated. Additionally, the peer review report submitted in opposition to the motion, cited as a basis for the denial of plaintiff A.B. Medical Services PLLC’s claims for $1,972.08 and $1,999.12, failed to invoke the penalties of perjury (Lubrano v Papandreou, 262 AD2d 457, 457 [1999]; Tattegrain v New York City Trans. Auth., 2002 NY Slip Op 40296[U] [App Term, 2d & 11th Jud Dists]) and there is no reference to CPLR 2106 upon which it may be inferred that the affiant invoked the language of the statute (Jones v Schmitt, 7 Misc 3d 47, 48 [App Term, 2d & 11th Jud Dists 2005]), nor did defendant “offer[ ] an[ ] acceptable excuse as to why [it] failed to obtain a sworn, admissible report” (Lubrano v Papandreou, 262 [*6]
AD2d at 458; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, defendant’s untimely denial of these claims precludes the defense asserted in the report. As to defendant’s alleged demands to conduct independent medical examinations (IMEs) of assignor Garraud, defendant offered no proof of mailing of any such demands nor did its affiant state sufficient facts upon which a presumption of mailing may be inferred (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra). Thus, summary judgment should have been granted as to all claims for treatment rendered assignor Garraud.

As to the claims for treatment rendered Guerrier, aside from the above-noted claims which were untimely denied or for which no denial was proved, Guerrier admitted, via a letter from his counsel to defendant, that he failed to attend two properly scheduled independent medical examinations and two follow-up examinations. Unsatisfied IME requests made prior to a claim’s filing remove the presumption of medical necessity which attaches to the claim forms, and absent additional proof of medical necessity, a provider’s motion for summary judgment based solely on the proof of claims must be denied (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). Upon assignor’s conceded failure to attend those examinations, there remains a triable issue of claimant’s assertion they were improperly sought, and whether plaintiff can offer a valid excuse for the nonattendance, and if not, whether the treatment for said claims was medically necessary (e.g. A.B. Med. Services PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]). Therefore, as to the claims for $1,972.08, $1,999.12, $699.68, $71.06 (submitted 2/24/03), $260.64, $71.06 (submitted 3/31/02), $71.40, $71.06 (submitted 4/28/04), and $62.72, for treatment rendered Guerrier, summary judgment was properly denied.

To summarize, partial summary judgment should have been granted to plaintiff A.B. Medical Services PLLC in the sum of $11,903.39, representing claims for treatment rendered assignor Micheline and Garraud, and, with respect to the claims of Guerrier, the claims for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08, which were untimely denied. Summary judgment should also have been granted as to plaintiff D.A.V. Chiropractic P.C.’s claim for $134.80. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder as to all claims for which summary judgment is
granted, and for all further proceedings on plaintiff A.B. Medical Services PLLC’s remaining claims for treatment rendered assignor Guerrier.

Since none of plaintiff Lvov Acupuncture P.C.’s claims for treatment rendered its assignors was asserted in the motion below, it was not aggrieved by the court’s determination of the order from which it appeals, and said appeal is dismissed (see CPLR 5511; Praeger v Praeger, 162 AD2d 671 [1990]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
A.B. MEDICAL SERVICES PLLC
D.A.V. CHIROPRACTIC P.C.
LVOV ACUPUNCTURE P.C.
a/a/o RAYMOND MICHELINE, YVELYNE GARRAUD
and FLAVIE GUERRIER,
Appellants,

-against-

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY,
Respondent.

Golia, J., concurs in part and dissents in part in the following memorandum.

I concur in the dismissal of the appeal taken by plaintiff Lvov Acupuncture P.C. and dissent as to the granting of partial summary judgment in favor of the remaining plaintiffs.

Contrary to the holding of the majority, I find that the claims were never “completed” and therefore the 30-day time period in which to pay or deny the claims has never commenced. The plaintiffs, in an attempt to establish a prima facie entitlement to judgment, acknowledged that the defendant sent timely requests for verification. Although plaintiffs asserted that they sent responses to those requests for verifications, plaintiffs failed to provide any proof of mailing the responses.

Accordingly, I find that the claims process has never been completed and therefore the time in which the defendant has to pay or deny has not started to run against the defendant.
Decision Date: March 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 (Peter Paul Sweeney, J.), entered August 1, 2005. The order granted defendant’s motion to compel responses to its bill of particulars and discovery demands, and denied plaintiff’s cross motion for summary judgment.

Order modified by denying defendant’s motion insofar as it sought to compel plaintiff to respond to its demand for a bill of particulars, with leave to defendant to serve an amended demand in accordance with the decision herein 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, defendant moved for an order compelling plaintiff to respond to its bill of particulars, its demand for records, and its request for an examination before trial or, in the alternative, striking plaintiff’s pleadings. Plaintiff cross-moved for summary judgment, which motion defendant opposed. Thereafter, the court below granted defendant’s motion, directing plaintiff to respond to the bill of particulars and to “produce a witness with knowledge of facts in the complaint.” The court denied plaintiff’s cross motion, finding that plaintiff “failed to prove its prima facie case no proof of mailing assignment of benefits.”

A review of the record indicates that plaintiff established its prima facie entitlement to [*2]summary judgment by proof of submission of its claim, setting forth the fact and 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]). Plaintiff established submission of the claim by annexing defendant’s denial of claim form to its moving papers, which states that defendant received the claim (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Contrary to the determination of the court below, plaintiff was not required to establish the proof of mailing of its assignment of benefits form as part of its prima facie case inasmuch as plaintiff established that it submitted a proper NF-3 claim form containing a verification of treatment by attending physician which states that an assignment of benefits form was attached (see 11 NYCRR 65-3.11 [b] [2]), and said form was annexed to plaintiff’s moving papers. Since defendant did not allege any deficiency in the assignment of claim form in its denial, it waived 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]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). Defendant’s remaining contentions regarding plaintiff’s prima facie entitlement to summary judgment lack merit. The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant received plaintiff’s claim on March 8, 2004, which it timely denied on March 29, 2004, on the basis of a peer review finding a lack of medical necessity. Upon a review of the denial and affirmed peer review report annexed to defendant’s opposition papers, we find that they “fully and explicitly” set forth the reasons for the denial (see e.g. Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiff’s remaining contentions regarding the denial lack merit. Consequently, defendant raised a triable issue of fact and the court below properly denied plaintiff’s cross motion for summary judgment.

Furthermore, plaintiff failed to establish that defendant’s discovery demands were irrelevant, privileged or confidential (see CPLR 3101, 3103). Defendant has demonstrated its entitlement to discovery since it timely denied the claim based on the lack of medical necessity and it is not precluded from asserting said defense.

With respect to defendant’s demand for a bill of particulars, we note that the purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial; its purpose is not to furnish evidentiary material (see e.g. Napolitano v Polichetti, 23 AD3d 534 [2005]). The demand for a bill of particulars herein improperly contains numerous requests for evidentiary information. It is not the function of the court to prune or correct a palpably improper demand. Under the circumstances, defendant should be afforded the opportunity to serve an amended demand (see Fiorella v Fiorella, 132 AD2d 643 [1987]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 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 (Eileen Nadelson, J.), entered March 15, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion is granted dismissing the complaint.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted 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 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]). Accordingly, the burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, in opposition to plaintiff’s motion and in support of its cross motion for summary judgment, contended that it was not obligated to pay or deny a claim until requested verification had been provided (see 11 NYCRR 65-3.8 [b] [3]), and that plaintiff and its assignor [*2]had failed to respond to its timely requests for verification in the form of an examination under oath. Inasmuch as plaintiff and its assignor did not respond to its verification requests, the period within which it was required to respond to plaintiff’s claims did not begin to run, and any claim for payment was premature (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

While defendant did not cross-appeal from so much of the order as denied its cross motion, we note that an appellate court may search the record and grant summary judgment in favor of a party even in the absence of an appeal by that party with respect to a cause of action or issue that is the subject of the motion before the court (CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Urias v Orange County Agric. Socy., 7 AD3d 515 [2004]; Novoselov v Rizzo, 6 Misc 3d 132[A], 2005 NY Slip Op 50104[U] [App Term, 2d & 11th Jud Dists]).

In searching the record, and in view of our determination herein that plaintiff did not respond to defendant’s requests for verification, it is our opinion that defendant’s cross motion for summary judgment should be granted and the complaint dismissed (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; Elite Chiropractic Servs., P.C. v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op 51735[U] [App Term, 1st Dept]).

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

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
OCEAN DIAGNOSTIC IMAGING, P.C.
a/a/o Dennis Sandiford,

Appellant,

-against-
NATIONWIDE MUTUAL INSURANCE COMPANY,

Respondent.

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 disagree 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: March 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 (Ellen M. Spodek, J.), entered January 3, 2005. The order, insofar as appealed from as limited by plaintiffs’ brief, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiffs’ 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 their assignor, plaintiff health care providers established a prima facie entitlement to summary judgment by proof that they 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]). Consequently, the burden shifted to defendant to raise a triable issue of fact. [*2]

Defendant argued that it properly denied the claims based on the failure of plaintiffs’ assignor to appear for 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 for scheduled EUOs, the “insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the 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 Term, 9th & 10th Jud Dists]; see also 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]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs. Therefore, the failure of plaintiffs’ assignor to appear for EUOs cannot constitute grounds for denial of no-fault benefits (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 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]). An insurer’s defense that the collision was in furtherance of an insurance fraud scheme is not subject to the 30-day preclusion rule (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), and is non-waivable. In support of its defense of fraud, defendant submitted the affirmation of its attorney who alleged that the matter was referred to the Special Investigative Unit because plaintiffs’ assignor was purportedly not in the insured vehicle at the time of the accident and was seen by the adverse driver arriving at the scene following the accident. However, the
defendant’s attorney lacked personal knowledge of the investigation and the circumstances giving rise to the investigation (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Moreover, the unsworn letter by the adverse driver, attached to the attorney’s affirmation, did not constitute competent proof in admissible form (Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra), and defendant failed to proffer an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). The affidavit of defendant’s claims representative merely set forth conclusory allegations of fraud. Thus, defendant’s submissions are insufficient to raise triable issues of fact pertaining to its defense of fraud. [*3]

Accordingly, 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.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

I agree that the defendant failed to submit sufficient proof to establish that the demands for an examination under oath (EUO) of the assignor were properly mailed. However, I strongly disagree with the majority in requiring the defendant to produce a copy of the underlying contract to establish the existence of the endorsement requiring the “assignor” to submit to an EUO.

The regulations do not require such production and neither the plaintiff nor the assignor raised the issue by denying the existence of such endorsement. I do not believe this Court should create an additional burden for the defendant that is not required by the statute or the regulation and I would therefore adhere to my earlier dissent in A.B. Med. Servs. PLLC v Allstate Ins. Co. (No. 2004-830 K C [App Term 2d & 11th Jud Dists, July 7, 2005]).

My dissent in this case is, however, much more direct.

It is abundantly clear to me that defendant has presented 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]). The belief is founded upon a detailed statement taken of the driver of the “offending” vehicle who stated that although he was involved in the accident and remained at the scene for 2 hours, he “did not observe any passengers inside the vehicle.”

Inasmuch as the underlying eligibility for this claim is predicated upon the assignor being a passenger in the insured vehicle, the statement by the other driver, if true, would establish that the alleged injuries do not arise out of this incident.

The only real issue concerning the sufficiency of this statement is the fact that it is unsworn and which my colleagues hold inadmissable as evidence. However, there is a long line of cases that stand for the proposition that even though a statement may be inadmissable and subject to objection, it may be used for the purpose of defeating a summary judgment motion (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Narvaez v NYRAC, 290 AD2d 400 [2003]).

This is especially true when the witness in question is presumably available to testify (Levbarg v City of New York, 282 AD2d 239 [2001]).
Decision Date: March 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 (Donald S. Kurtz, J.), entered January 18, 2005. The order granted plaintiffs’ motion for summary judgment.

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

In an action to recover first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, 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]). In the instant case, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [were submitted] in a timely manner” and that bills for the services rendered to the [*2]respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (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]). While an insurer defendant’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that the plaintiff sent, and that the defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 25545 [App Term, 2d & 11th Jud Dists]; Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]), in the instant case, there are discrepancies between the claim forms attached to the plaintiffs’ moving papers and the defendant’s denial of claim forms, which are not explained on the record. Accordingly, said denial of claim forms are inadequate to establish mailing of the claim forms. Since plaintiffs did not provide proof of proper mailing of the claim forms, the order of the court below should be reversed and plaintiffs’ motion for summary judgment denied.

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

Golia, J., concurs in a separate memorandum.

MAGNEZIT MEDICAL CARE, P.C.
a/a/o BEATA OCHMAN, EDWIN ROBLES,
GREGOR SHVARTSMAN and
THE LAW OFFICE OF MOSHE D. FULD, P.C.,

Respondents,

-against-

NEW YORK CENTRAL MUTUAL FIRE INS. CO.,
Appellant.

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 disagree 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: March 27, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered January 12, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a completed proof of 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 show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant cross-moved for summary judgment. Its claims representative stated in an affidavit that the bill was received on May 1, 2002 and denied on June 4, 2002. Since the [*2]defendant did not deny the claim within the 30-day prescribed period, it is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense that the bill was not received within 180 days of service as required under the regulations in effect at the time (11 NYCRR 65.11 [m] [3]; cf. Ocean Diagnositc Imaging P.C. v GMAC Ins., 7 Misc 3d 138[A], 2005 NY Slip Op 50865 [App Term, 2d & 11th Jud Dists]). [*3]

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

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

Golia, J., concurs in a separate memorandum. [*4]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
RADIOLOGY TODAY P.C.
A/A/O JOSE PEREZ,

Appellant,

-against-
ALLSTATE INSURANCE COMPANY,

Respondent.

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 disagree 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.

It should be noted that between the submission by the plaintiff and the defendant there are no less than three (3) NF-10 denial forms attributable to the defendant, and not one of them is clearly referable to the NF-3 claim form submitted. [*5]

Although all three appear to address the same two MRI “treatment” of September 24, 2001 and October 11, 2001, they each indicate different dates of billing; different dates of receipt; and different names for the provider. What is even more disconcerting is that the affirmation of defendant’s counsel sets forth that these denials were issued more than 30 days from receipt of the claim. I note that in one instance, it was sent merely one day “late” and that the 30th day was a Sunday. Therefore, under the normal rules of statutory interpretation, it was, in fact, a timely response. Why the defendant failed to point that out is a mystery. I am also mystified as to why the defendant would be unable to easily meet the 30 day deadline given that the ground for denial is that the claim was not filed within the 180 day time period allotted to the claimant.

I am also at a loss to understand why defendants persist in their failure to clearly and unequivocally meet even the simplest of burdens placed upon them by regulations and the courts. These would include proof of mailing, timely and specific denials, timely requests for verifications, and objections to assignments, timely follow-up requests for independent medical examinations, etc.
Decision Date: March 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, Queens County (Howard G. Lane, J.), entered October 12, 2004. The order denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Order affirmed without costs.

In this action, plaintiff insurance carrier seeks to recoup first-party no-fault basic economic loss payments from defendants, allegedly non-covered persons, that it made to its insured following an accident involving a vehicle driven and owned by defendants. Although the suit was brought outside the three-year statute of limitations for personal injuries, plaintiff claimed entitlement to the two-year toll on the running of the statute of limitations provided by Insurance Law § 5104 (b).

The court below properly denied defendants’ motion to dismiss the action. Defendants moved to dismiss solely on the theory that the three-year statute of limitations had run, and raised the issue of plaintiff’s insureds’ prior lawsuit in Bronx County (in which plaintiff herein allegedly could have asserted a lien upon the proceeds pursuant to Insurance Law § 5104 [b]).

Although the statute does not specify against which types of compensation such a lien may be asserted, it is well established in case law that a lien representing basic economic loss benefits paid to an insured can be asserted only against an economic damages award to an insured in a personal injury action, and not against a pain and suffering award (see e.g. Aetna [*2]Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 42 [1983]; Safeco Insurance Co. of America v Jamaica Water Supply Co., 83 AD2d 427 [1981]). The alleged lack of any economic damages claim in the complaint in the Bronx action annexed to defendants’ reply papers was the rationale for the denial of the motion to dismiss.

The motion to dismiss the present action was properly denied because defendants presented insufficient evidence to establish that the present action was excluded from the ambit of Insurance Law § 5104 (b). Defendants presented a copy of a complaint and an index number, which is not evidence sufficient to establish, at this early stage, that plaintiff’s insureds could have or did recover, whether by jury award or settlement, amounts properly attributable to basic economic loss (see e.g. Aetna Cas. & Sur. Co. v S. Siskind & Sons, 209 AD2d 215 [1994]), or that plaintiff could have asserted a lien in the prior action and would therefore be barred from commencing the present action by the three-year personal injury statute of limitations. The foregoing determination is without prejudice to defendants again raising the claim that the
instant action was barred by the statute of limitations upon a sufficient showing,
through documentary evidence, that the plaintiff’s subrogors had instituted a prior
action against them which had the effect of taking the instant action outside of
the tolling provisions set forth in Insurance Law § 5104 (b).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: March 27, 2006