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 (Jack Battaglia, J.), entered November 16, 2004. The order granted plaintiffs’ motion for summary judgment.

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

In general, a health care provider establishes 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]). Affidavits of the persons who rendered medical services to plaintiffs’ assignors were submitted in support of plaintiffs’ motion for summary judgment. Although the affiants stated that it was the practice of their offices to mail claim forms within five business days of the date on the claim form, this was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679 [2001]). Nor did the affidavits state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with (see Contemp. Med. 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]). Inasmuch as plaintiffs
herein failed to establish by competent proof that the claim forms were
submitted to defendant, they did not make the requisite showing to establish a prima facie entitlement to summary judgment, and the burden never shifted to defendant (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, summary judgment should have been denied.

Pesce, P.J., and Belen, 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 BELEN, JJ.
VIKTOR GRIBENKO, M.D., P.C. and R.I.M MEDICAL
a/a/o OLEG DADASHEV, GENNADIY IZRAILOV,
SCOTT KLEIN, IVAN LAGODYUK, FAUD MEKHTIEV
and DAVID YUSUPOV,
Respondents,

-against-

Golia, J., concurs in the following memorandum:

I concur with the majority in reversing the order of the lower court, but need to amplify the distinction that I find between being a proponent of a motion for summary judgment and opposing a motion for summary judgment.

In the case at bar, plaintiffs moved for summary judgment directing payment for no-fault claims, based upon their contention that they had established a prima facie case that claims were properly sent and that defendant failed to pay or deny the claims within
30 days. The lower court granted summary judgment, and the majority of this court reverses, upon a finding that plaintiffs’ submissions failed to establish that the claim forms were, in fact, actually mailed to defendant.

While I am in agreement with this holding, I feel compelled to clarify the distinction between my support of this holding and my dissent from this court when it grants summary judgment to a plaintiff which establishes actual mailing where the defendant asserts that it mailed a denial but fails to properly establish that the denial form was mailed.

I have held in a number of cases, including my dissent in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]), that:

“Although the defendant’s affidavits do not contain detailed mailing procedures [*4]necessary to establish proof that a certain item was mailed . . . , I do find that the sworn statements by defendant’s medical examination scheduler’ are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]).” (emphasis added)

The important distinction is that an “incomplete” proof of mailing can be sufficient to warrant denying a motion for summary judgment but is not sufficient to warrant granting a motion for summary judgment.

As stated by the Appellate Division in the early case of Braun v Carey (280 App Div 1019 [1952]), and cited with approval by the Court of Appeals in Sillman v Twentieth Century-Fox Film Corp. (3 NY2d 395 [1957]), the drastic remedy of “summary judgment on affidavits should not be granted where there is any doubt as to the existence of triable issues of fact” (Braun v Carey, 280 App Div at 1019-1020).

Accordingly, I concur with the majority in reversing the order of the lower court.
Decision Date: December 30, 2005

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 (David A. Gross, J.), dated September 8, 2004. The order denied plaintiff’s motion for summary judgment.

Order unanimously 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 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 [*2]NY2d 195, 201 [1997]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a
triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: December 30, 2005

[*1]

Supreme Court, Appellate Term, Second Department, December 15, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Ronald I. Lemberger, Hempstead (Wesley R. Mead of counsel), for respondent.

{**11 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Order unanimously 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 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 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists 2003]). The record discloses that the defendant submitted a properly completed denial of claim form dated September 25, 2003 covering all the claims involved in the lawsuit. Contrary to the determination of the court below, said September 25, 2003 denial of claim form, which was attached to plaintiff’s moving papers, and is identical to the denial of claim form dated September 25, 2003, included by defendant as part of its papers in opposition to [*2]plaintiff’s motion, adequately established that plaintiff sent, and that defendant received, the claims (see 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 2005]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists 2004]; cf. SZ Med. P.C. v State-Wide Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [App Term, 2d & 11th Jud Dists 2005]).

Defendant’s reliance on SZ Med. P.C. v State-Wide Ins. Co. (6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [2005], supra) is misplaced. In SZ Med. P.C., plaintiffs’ billing manager stated that she submitted the 15 annexed claim forms without specifying when they were sent, and relied on defendant’s letter which acknowledged receipt of claims but did not specify which of the claims were received. On those facts, this court held:

“In the absence of any evidence as to when plaintiffs{**11 Misc 3d at 31} submitted their claim forms to defendant, and in the absence of any specification in defendant’s letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon were overdue” (2005 NY Slip Op 50103[U], at *2).

In the instant case, unlike in SZ Med. P.C., defendant submitted the exact same denial of claim form dated September 25, 2003 relied upon by plaintiff, without stating any objection thereto, or denying receipt of said bills, thereby effectively conceding receipt of the same.

Defendant’s September 25, 2003 denial of claim form indicates that defendant’s denial of plaintiff’s claims was 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]). We note that the record also contains denial of claim forms dated January 27, 2003 and January 28, 2003. However, they are fatally defective and of no import since these forms omitted numerous items of requested information, and were thus incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Furthermore, defendant’s documentary submissions are insufficient to establish proper mailing either of said denial of claim forms or the independent medical examination notices upon which the denials were based (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Contemp. Med. 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 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]), including its defense of excessive or unnecessary treatment (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]). Defendant has failed to submit proof in admissible form in support of its defense of fraud and/or misrepresentation (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 7 Misc 3d 136[A], 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]). In any event, the unsworn investigative reports indicate that defendant’s claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, forms of “provider fraud” which are defenses subject to the 30-day preclusion remedy (Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App{**11 Misc 3d at 32} Term, 2d & 11th Jud Dists 2005]; see Central Gen. Hosp., 90 NY2d at 199; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 [*3]Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Accordingly, summary judgment is granted in favor of plaintiff and the matter 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., Weston Patterson and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the District Court of Nassau County, First District (Norman Janowitz, J.), entered December 23, 2004. The order denied plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order insofar as appealed from by plaintiff unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $2,983 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees. [*2]

Cross appeal by defendant unanimously dismissed.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted completed proofs of claims, setting forth the fact and the amount of the loss sustained, and that payments of no-fault benefits were overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI In Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The timely denials containing the unaffirmed but factually specific peer review report constituted a sufficient assertion of a defense of lack of medical necessity. However, in opposition to a motion for summary judgment defendant was required to submit proof in admissible form to rebut plaintiff’s prima facie showing. Since the report [*3]
was not in admissible form, plaintiff’s motion should have been granted (A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]).

We note that, in accordance with the brief submitted by defendant, its cross appeal is dismissed.
Decision Date: December 12, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied a motion for partial summary judgment by plaintiff A.B. Medical Services PLLC in the sum of $4,410.22.

Order reversed without costs, motion by plaintiff A.B. Medical Services PLLC for partial summary judgment in the sum of $4,410.22 granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due thereon, and for all further proceedings on its remaining claims.

Appeal by plaintiffs Lvov Acupuncture P.C. and Somun Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff A.B. Medical Services PLLC (A.B. Medical) established a prima facie entitlement to partial summary judgment in the sum of $4,410.22 by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

It is uncontroverted on the record that defendant did not timely pay or deny A.B. [*2]Medical’s claim for $439.04, which said plaintiff has limited to $439.02, within the 30-day statutory period (11 NYCRR 65-3.8 [c]). Accordingly, defendant is precluded, with certain exceptions not relevant here, from raising most defenses with regard to said claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The record furthermore does not contain a denial of claim for plaintiff’s claim in the sum of $1,972.08, which plaintiff established was submitted to defendant on August 16, 2002. Even assuming that defendant’s denial of claim form dated August 30, 2002, may be deemed to constitute a timely denial of plaintiff’s claim for $1,972.08, on the stated ground that plaintiff’s assignor failed to appear for IMEs, the form is fatally defective since it omitted numerous items of requested information, and thus was incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Moreover, in opposition to plaintiff’s motion, defendant has failed to proffer competent proof in admissible form that it mailed the requests scheduling the IMEs and has otherwise failed to address this defense. Accordingly, defendant has failed to raise triable issues of fact warranting denial of plaintiff’s motion with respect to this claim.

While defendant apparently timely denied plaintiff’s claim for $1,999.12, a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory or vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564, supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra). The claim for $1,999.12 was in effect denied for failure to establish medical necessity. Although defendant was not required to attach to its denial of claim form the peer review upon which the denial was purportedly based (see 11 NYCRR 65-3.8 [b] [4]; see also A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]), the defendant’s denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity, and it is therefore precluded from asserting said defense (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra) . Accordingly, even though the peer review submitted by defendant in opposition to plaintiff’s motion constituted proof in admissible form and set forth a sufficient factual basis and medical rationale for denial of the claim, said report cannot remedy the factual insufficiency of defendant’s denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra).

We note that the lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; 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 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, the motion for partial summary judgment by plaintiff A.B. Medical Services PLLC is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) [*3]and the regulations promulgated thereunder, and for all further proceedings on its remaining claims.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them are dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Rios and Belen, JJ., concur.

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

Golia, J.P. dissents and votes to hold the matter in abeyance while remanding it to the court below for a hearing.

A review of the papers submitted on appeal as well as the trial court’s file reveals a disturbing fact that requires further investigation before I can issue a decision on the merits.

It appears, from the documents that were submitted to the trial court, that either the plaintiffs or the defendant have submitted, what appears to be an altered copy of the NF-10 “Denial of Claim” form. The NF-10 form was originally submitted by the defendant as a formal denial to the underlying claim for payment.

The first page of the NF-10 form submitted by both the defendant and the plaintiffs appears to be identical. However, the second page of each document is significantly different from each other.

The copy of the second page of the NF-10 form submitted by the plaintiffs lists the Applicant for Benefits as “AB Medical Office,” whereas the first page identifies the provider as “AB Medical Services.” The first and second pages of defendant’s document shows the provider as “AB Medical Services.” AB Medical Office is not mentioned anywhere in defendant’s NF-10 form.

Additionally, the explanation as to why the claim was denied on each form differs materially. The plaintiffs’ submission contains the following statement:

“BASED ON THE ABOVE MEDICAL DOCUMENTS THAT I HAVE REVIEWED, I DO NOT RECOMMEND REIMBURSEMENT FOR EMG, NERVE CONDUCTION STUDIES, F-WAVES AND H-REFLEXES BILLED ON JULY 2, 2002 BY A.B. MEDICAL SERVICES, PLLC IN THE AMOUNT OF $1999.12 AS MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

“BASED ON PEER REVIEW BY DR. JOSEPH GREGORACE DO – MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

In addition, the plaintiffs also submitted certain documents as exhibits as proof of mailing. Although those documents appear to be official U.S. Postal forms, they certainly do not contain information relating to postal documents. For example, the document contains a “check mark” on the box that indicates that the items were sent by “Registered” mail, yet the numbers entered under the column entitled “Article Number” have no relation to generated numbers by the Post Office. Further, there was no registered mail receipt attached. Indeed, those numbers appear to be the claim numbers which were assigned by the insurance carrier. I further note that one of the documents contains a list of thirteen items and a stamp indicating a charge of $3.90 [*4]whereas a similar document also contains a list of thirteen items with a stamp indicating a charge of $4.50 without explanation of the difference in charges.

In light of the above discrepancies, I cannot render an opinion as to the merits of
the within matter. Unlike the majority, I do not choose to ignore the maxim of “falsus in uno, falsus in omnibus” (Deering v Metcalf 74 NY 501, 503 [1878]).

Although the majority – unjustifiably, in my view – chooses to ignore these discrepancies, I cannot. It is my opinion that this matter should be remanded to the court below to determine, on the record, the reliability and the trustworthiness of the documents presented by each party.
Decision Date: November 21, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from that portion of an order of Civil Court, New York County (Debra Rose Samuels, J.), entered February 6, 2004, which denied their motion for summary judgment.

PER CURIAM:

Order (Debra Rose Samuels, J.) entered February 6, 2004, reversed, with $10 costs, plaintiffs’ motion for summary judgment is granted in the amount demanded in the complaint and the matter is remanded to Civil Court for a calculation of statutory interest and an assessment of attorneys’ fees due thereon, and for entry of judgment.

In this action to recover first party no-fault benefits for medical services rendered to its assignors, the plaintiff health care providers established a prima facie entitlement to summary judgment by evidentiary proof that they submitted claims between December 27, 2002 and April 8, 2003, setting forth the facts and the amounts thereof, and that payment of no-fault benefits was overdue as defendant neither paid nor denied the claims within 30 days as required by Insurance Law § 5106(a) (see Mary Immaculate Hospital v Allstate Ins. Co., 5 AD3d 742 [2004]).

We find unavailing defendant’s argument that plaintiffs are not entitled to judgment because the assignors failed to submit to examinations under oath (EUOs). While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the “Conditions” section that an injured person “shall … as may reasonably be [*2]required submit to examinations under oath …,” defendant did not establish that the insurance policy in effect contained the no-fault endorsement authorizing EUOs. Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault protection created by the statute and implementing regulations cannot be qualified by the conditions of the liability portion of the policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022U [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: November 16, 2005

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 Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from as limited by plaintiffs’ brief, denied so much of a motion as sought partial summary judgment on behalf of plaintiff A.B. Medical Services PLLC.

Order, insofar as appealed from, unanimously reversed without costs, plaintiffs’ motion granted to the extent of awarding plaintiff A.B. Medical Services PLLC partial summary judgment in the principal sum of $4,575.44, and matter remanded to the court
below for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims.

Appeal as taken by plaintiffs D.A.V. Chiropractor P.C. and Acupuncture P.C. unanimously dismissed.

Plaintiffs commenced this action to recover $6,080.18 in first-party no-fault benefits for medical services rendered to the assignor. Thereafter, a motion was brought seeking partial summary judgment in the principal sum of $4,575.44 based on some claims made by plaintiff health care provider A.B. Medical Services PLLC. Said 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 it sustained, and that payment of no-fault benefits was overdue (see [*2]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 case at bar, the defendant’s failure to object to the completeness of the assignments within 10 days of receipt constituted a waiver of any defenses based thereon (New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]).

The appeal as taken by the other plaintiffs is dismissed since they lack an interest in the specific sums in controversy upon the appeal (see CPLR 5511).

Accordingly, plaintiff A.B. Medical Services PLLC is awarded partial summary judgment in the principal amount of $4,575.44 and the case is remanded for the calculation of statutory interest and attorney’s fees thereon, as well as for all further proceedings on the remaining claims.
Decision Date: November 04, 2005

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 (Loren Baily-Schiffman, J.), entered on September 10, 2004. The order, insofar as appealed from, denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and Square Square Transportation, Inc.

Order, insofar as appealed from, unanimously modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Daniel Kim’s Acupuncture P.C. and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and upon searching the record, summary judgment is granted in favor of defendant dismissing the cause of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

Appeal by plaintiff Somun Acupuncture P.C. unanimously dismissed.

The motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, in searching the record, the claim by said plaintiff is hereby dismissed. The revised insurance regulations, applicable to claims submitted on or after April 5, 2002, “no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11 [a]; Insurance Law § 5102 [a] [1])” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [*2][2003]). Accordingly, while “[s]uch reasonable and necessary expenses remain reimbursable (see Insurance Law § 5102 [a] [3] . . . [they are] nonassignable)” (id.). The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs subsequent to the effective date of the revised regulations. Under the authority of Matter of Medical
Socy. of State of N.Y. v Serio (100 NY2d 854, supra), such costs are nonassignable, and the claim by Square Synagogue Transportation Inc. must be dismissed.

Plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Daniel Kim’s Acupuncture P.C., 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]). It is uncontroverted on the record that defendant failed to pay or deny the claims of said plaintiffs within the 30-day period, and it is accordingly precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the court below properly determined that defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms in any event constitutes a waiver of any defenses with respect thereto (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; 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 Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

However, an untimely denial does not preclude defendant from asserting a lack of coverage defense on the ground that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]), or that the collision was in furtherance of an insurance fraud scheme (see Central Gen. Hosp., 90 NY2d at 199; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists]). Defendant’s submissions in the instant case, consisting of, inter alia, excerpts from an examination under oath taken of plaintiffs’ assignor and the affidavit of its claim representative were insufficient to demonstrate that the insurer’s defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199; see also A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U], supra).

Accordingly, since defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557 [1980]), the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Daniel Kim’s Acupuncture P.C. is [*3]granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellant, Somun Acupuncture P.C., the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: November 04, 2005

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 (Charles John Markey, J.), entered November 18, 2003. The order denied plaintiff’s motion to dismiss certain affirmative defenses.

Order unanimously affirmed without costs.

Plaintiff commenced the instant action to recover damages for personal injuries he allegedly sustained as a result of an accident which occurred in Queens. He sought to recover under the uninsured motorist endorsement of his automobile liability policy based upon the negligence of an uninsured motorist, as defined by said policy. The policy was issued in Virginia. Defendant insurer, in its answer, interposed various [*2]
affirmative defenses, including three which alleged, in substance, that the action was barred or limited based upon plaintiff’s failure to sustain a “serious injury” as defined by Insurance Law § 5102(d). Plaintiff subsequently moved to dismiss those affirmative defenses on the ground that he was not required to prove “serious injury” inasmuch as there was no “serious injury” requirement under Virginia law or under the Virginia uninsured motorist endorsement. The motion was denied by the court below, predicated upon plaintiff’s invocation of the jurisdiction of the New York courts when he initiated the lawsuit (alleging that he was a New York resident) and upon the occurrence of the accident in New York. The court stated that the law of New York, which imposes a “serious injury” requirement, would apply, and the instant appeal ensued.

Since this case involves a claim by an insured against his insurer for benefits to which he claims he is entitled under the uninsured motorist endorsement of the liability policy, this action is a contract case, and is distinguishable from an action seeking damages for personal injury which would be brought against the alleged tortfeasor. However, claims for uninsured motorist benefits by an insured against an insurer present issues which are actually a mixture of contract and tort. “Such claims are based on the coverage agreement in the insurance contract which typically limits benefits to sums which the insured would be ‘legally entitled to recover as damages’ from the uninsured owner or operator. Thus payment of benefits under the contract [*3]
terms depends upon the uninsured motorist’s tort liability to the insured” (3-32 No-Fault & Uninsured Motorist Auto Insurance § 32-00).

The Virginia statute regarding uninsured motorist coverage provides that the uninsured motorist endorsement must undertake “to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle” (Va. Code § 38.2-2206 [A] [emphasis added]). The statute further provides that an insured relying upon the uninsured motorist endorsement is required to establish “legal liability” (Va. Code § 38.2-2206 [H]). In our opinion, the term “legally entitled to recover” requires an insured to prove fault and damages just as if he or she had proceeded against the uninsured motorist instead of the carrier (see e.g. Matter of De Luca [MVAIC], 17 NY2d 76, 80-81 [1966]). Implicit in this analysis is that the insured be “legally entitled to recover” in the venue in which he chooses to commence the action. The carrier, therefore, should be able to assert any defenses that would be available to the uninsured motorist, in order to show that the insured is not entitled to recover, whether it be due to comparative negligence, immunity from suit, or the failure to reach the “serious injury” threshold, depending upon the laws of the applicable jurisdiction.
In tort cases brought in this state, New York uses an “interest analysis” in order to determine which jurisdiction has the greater interest in having its law applied to the litigation. Laws distributing the loss after the accident happens, such as contribution or charitable immunity, may implicate significant governmental interests (see Matter of Allstate Ins. Co. [Stolarz—N.J. Mfrs. Ins. Co.], 81 NY2d 219, 225 [1993]). Loss-allocating rules are those which “prohibit, assign, or limit liability after the tort occurs” (Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]), such as charitable immunity statutes, guest statutes and vicarious liability statutes. New York’s law requiring a “serious injury” threshold has been held to involve issues of loss allocation (see Kranzler v Austin, 189 Misc 2d 369 [App Term, 2d & 11th Jud Dists 2001]; Jean v Francois, 168 Misc 2d 48 [1996]). Where the specific issue raised relates to allocating losses which result from tortious conduct, both the situs of the tort as well as the domiciles of the litigants will be examined (see Neumeier v Kuehner, 31 NY2d 121 [1973]).

The accident location and situs of the loss or injury are in New York. Plaintiff’s counsel has conceded herein that, at the time of the accident, plaintiff had moved from Virginia to New York, and in fact based venue upon his residence in Queens County. Moreover, strong policy considerations underlie New York’s serious injury threshold requirement. The rationale underlying the “serious injury” requirement was to reduce the number of litigated automobile personal injury accident cases by keeping minor personal injury cases out of court (see Licari v Elliott, 57 NY2d 230 [1982]; Kranzler v Austin, 189 Misc 2d 369, supra; see also Restatement [Second] of Conflict of Laws § [*4]
6). Were the New York courts not to apply the threshold requirement, the rationale for the New York law would be seriously eroded.

In view of the foregoing, the law of New York should be applied, and plaintiff should be required to demonstrate that he sustained a “serious injury.” Accordingly, the court below did not err in denying plaintiff’s motion to dismiss defendant’s first three affirmative defenses.
Decision Date: November 04, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from that portion an order of the Civil Court, Bronx County entered January 24, 2005 (Larry Schachner, J.) which denied its cross motion for summary judgment dismissing the complaint.

PER CURIAM

Order entered January 24, 2005 (Larry Schachner, J.), modified to the extent of granting summary judgment to defendant dismissing the complaint; as modified, affirmed, without costs.

Plaintiff provided medical services to its assignor and subsequently submitted claims to defendant insurer seeking first-party no-fault benefits. Defendant delayed payment on the ground that plaintiff’s assignor failed to respond to timely requests for additional verification.

Defendant established its entitlement to summary judgment dismissing the complaint. An insurer is not obligated to pay or deny a claim until requested verifications have been provided (see 11 NYCRR § 65-3.8[b][3]). The record reveals that plaintiff and its assignor failed to respond to defendant’s timely requests for additional verification. Accordingly, the period within which defendant was required to respond to plaintiff’s claims did not begin to run, and any claim for payment was premature (see Nyack Hospital v State Farm Mutual Automobile Insurance Company, 19 AD3d 569 [2005]).

This constitutes the decision and order of this court.
I concur
Decision Date: October 26, 2005