SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on July 14, 2004, as denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. in the sum of $14,669.64.

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

Appeal by plaintiff Daniel Kim’s Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount 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]). Contrary to the determination of the court below, the defendant’s denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiffs 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]; 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]). Moreover, the lack of authentication of an assignor’s signature, in and of itself, does not [*2]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 and to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; 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]; Diagnostic Rehab. Med. Servs. 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]).

It is uncontroverted that defendant timely denied the claims. In opposition to plaintiffs’ motion, defendant argued, inter alia, that the claims were properly denied on the ground that plaintiffs’ assignors failed to attend independent medical examinations (IMEs) scheduled by A. Samenga & Associates at the request of defendant’s claims representative. Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . . [and] such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

While plaintiffs have effectively conceded receipt of the IME notices dated August 6, 2001 and August 7, 2001 addressed to the assignors’ attorney, there was no competent proof of mailing to assignor Khlevner (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), and defendant has acknowledged that no notices were mailed to assignor Sultan. Under the circumstances, defendant’s opposition papers are insufficient to rebut the presumption of medical necessity (see Careplus Med. Supply Inc. v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]).

Inasmuch as no issue is raised relating to the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]). [*3]

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C., 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.
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 29, 2004, which denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment, deemed an appeal from a judgment of the same court, entered August 23, 2004, awarding plaintiff the sum of $1,819.20.

Judgment unanimously 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]; 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]). Assuming arguendo that defendant timely denied the claims, it nevertheless had to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra).

In the instant action, defendant’s denial was predicated upon the failure of plaintiff’s assignor to appear for pre-claim independent medical examinations (IMEs). Although the failure of plaintiff’s assignor to appear at a pre-claim IME can be sufficient to rebut a prima facie case established by plaintiff, to properly interpose such opposition to plaintiff’s cross motion for summary judgment, defendant had to proffer evidence in admissible form establishing the failure of plaintiff’s assignor to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). While defendant’s counsel and defendant’s claims representative averred that plaintiff’s assignor failed to appear for pre-[*2]claim IMEs, they failed either to establish that they had personal knowledge that the requests for such IMEs were mailed to plaintiff’s assignor or to create a presumption of mailing by submitting an affidavit describing the standard office practice or procedures defendant uses to ensure that such letters are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff was entitled to summary judgment because defendant failed to rebut the prima facie case established by plaintiff (see Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; S & M Supply v GEICO Ins., 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U], supra; cf. Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on February 19, 2004, as denied its cross motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, order entered December 7, 2004 dismissing the action vacated, plaintiff’s cross motion for summary judgment granted in the sum of $1,432.43, 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 assignors, plaintiff established a prima facie entitlement to summary judgment in in the sum of $739.80, as assignee of Clara Suckragh, and the sum of $692.63 as assignee of Peter Suckragh, for a total of $1,432.43, by proof that it submitted the claims, setting forth the fact and the amount 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]). In opposition, defendant argued that it properly denied the claims on the grounds, inter alia, that the documentation submitted by plaintiff was not an accurate representation of the actual cost of the equipment and that certain of the claims were in excess of the “average” wholesale cost of the billed medical supplies.

The record indicates that defendant denied the claims beyond the 30-day period within which it was required to pay or deny the same (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). While a timely verification request may extend the 30-day period, the affidavit of defendant’s litigation examiner was insufficient to demonstrate proper mailing of the verification [*2]request as to assignor Clara Suckragh since there is no allegation by one with personal knowledge that the letters were actually mailed. Nor did the affidavit contain a sufficiently detailed 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]). Accordingly, as to assignor Clara Suckragh, 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 the defense, in effect, of excessive charges (cf. 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] [App Term, 2d & 11th 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]).

While defendant’s submissions were adequate to establish a tolling of the 30-day period with regard to assignor Peter Suckragh by proof of its receipt of the verification requested, defendant has failed to submit proof in admissible form in support of its defense that the documentation submitted by plaintiff was “not an accurate representation of [plaintiff’s] actual cost” of the equipment. Moreover, defendant’s partial denials of certain of the claims on the ground that these were in excess of the “average” wholesale cost of the billed medical supplies, fail to state a valid basis for denial under the insurance regulations then in effect (see e.g. Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; King’s Med.
Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]). The insurance regulations governing medical equipment and supplies applicable to the instant action limits the amount recoverable by a provider of medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]). The defendant’s denial of benefits on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location has been rejected for claims under the regulations in effect prior to October 6, 2004 (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44, supra; King’s Med. Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U], supra).

We note that pursuant to the revised Insurance Department regulations regarding durable medical equipment and supplies, effective October 6, 2004 (see Circular Letter No. 8 [2004]; 11 NYCRR Appendix 17-C, part F, eff. October 6, 2004), the fee schedule for medical equipment sets forth, in addition to the 150% limit, the “usual and customary price charged to the general public” (11 NYCRR Appendix 17-C,
part F [a] [2]), whichever is less.

Accordingly, plaintiff’s cross motion for summary judgment is granted in the sum of [*3]$1,432.43, 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.
Decision Date: August 17, 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 (Eileen Nadelson, J.), entered June 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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 opposition to the motion, defendant submitted peer reviews asserting a factual basis and medical rationale sufficient to raise a triable issue as to the medical equipment’s medical necessity (Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687[U] [App Term, 2d & 11th Jud Dists]).

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

Golia, J., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o Lacos Moscoso Martinez,

Appellant,

-against-
HEREFORD 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: August 11, 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 June 10, 2004, which denied their motion for partial summary judgment.

Order unanimously reversed without costs, plaintiffs’ motion for partial summary judgment granted awarding plaintiff A.B. Medical Services PLLC the sum of $5,405.98, plaintiff D.A.V. Chiropractic P.C. the sum of $88.44, and plaintiff Lvov Acupuncture P.C. the sum of $840.56, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff health care providers commenced this action to recover the sum of $6,523.32 in first-party no-fault benefits for medical services rendered to their assignor, and thereafter moved for partial summary judgment in the sum of $6,326.52, which was comprised of $5,397.52 in claims for A.B. Medical Services PLLC, $88.44 in claims for D.A.V. Chiropractic P.C., and $840.56 in claims for Lvov Acupuncture P.C. (We note, incidentally, that included in the amount sought in the instant motion by plaintiff A.B. Medical Services PLLC is a claim for $523.94 which, as conceded by defendant, should have been in the amount of $532.40, and we therefore modify the amount sought for this claim.) Upon a review of the record, we find that plaintiffs established a prima facie entitlement to partial summary judgment in the aggregate amount of $6,334.98, by showing that they submitted claims 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]; [*2]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 (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, however, did not meet its burden, since it failed to establish by competent evidence that its denial of claim forms were timely mailed within the requisite 30-day period to pay or deny the claims (11 NYCRR 65-3.8 [a] [1]). Although defendant in its opposition papers submitted an affidavit of its no-fault field adjuster who was familiar with the file, the affidavit did not allege that the denial of claim forms were actually mailed, nor did it describe the standard office practice or procedures used by defendant to ensure that such denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on the aggregate sum of $6,334.98, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder. We note that plaintiffs did not seek summary judgment for the balance due on the $71.06 claim for A.B. Medical Services PLLC and the balance due on the $425 claim for Lvov Acupuncture P.C., and the matter is therefore remanded for all further proceedings on those remaining claims.
Decision Date: July 28, 2005

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, Kings County (D. Kurtz, J.), entered on June 4, 2004, as granted its motion for summary judgment to the extent of ordering an assessment of damages.

Order modified by providing that plaintiff’s motion for summary judgment is granted, by deleting therefrom the provision requiring an assessment of damages and by remanding the matter to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In awarding summary judgment in favor of plaintiff, the court erroneously set the
matter down for an assessment of damages. Inasmuch as plaintiff made out a prima facie case by the submission of proof of the claim and the amount of the loss sustained (Insurance Law § 5106), and the calculation of interest and attorney’s fees is prescribed by statute (Insurance Law § 5106 [a]) and the regulations promulgated thereunder (11 NYCRR 65-3.9 [a]; 65-3.10 [a]), there was no basis for the court to direct an assessment of damages (cf. S & M Supply Inc. v Dollar Rent A Car Sys., 5 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2004]).Accordingly, the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

We pass on no other issue.

Rios, J. and Belen, J., concur.

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

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 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.

I simply do not understand, and indeed marvel at, the failure of the defendant either to respond to or to include any affidavits by individuals with personal knowledge of the facts.
Decision Date: July 21, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan), entered April 28, 2004, denying its motion to sever the claim of each assignor into a separate action.

Order unanimously reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover no-fault benefits as assignee of 11 eligible injured persons. The claims allegedly arose out of separate accidents involving different assignors. Defendant moved to sever the assigned claims in the complaint into separate actions pursuant to CPLR 603, which motion the court below denied by order entered April 28, 2004. We note that although this case involves 11 different assignors, the appellate record is not clear as to whether the second through eleventh causes of action involve 5 or 10 separate accidents.

In light of the recent trend in cases involving severance of large numbers of assigned claims which, if tried together, would be unwieldy and would create a substantial risk of confusing the trier of fact, we find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [*2][2004]). Defendant’s answer clearly places at issue, inter alia, the necessity and reasonableness of the rendered medical supplies [*3]
and the sufficiency of the no-fault forms that have been submitted (see 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]).
Decision Date: July 21, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied its motion for summary judgment.

Order 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 services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by
proof that it submitted claims, setting forth the fact and the amount 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]). In opposition, defendant contended that the claims were properly denied based on, inter alia, the assignors’ failures to attend independent medical examinations (IMEs).

Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of [*2]medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed on the record that defendant timely denied the claims pertaining to assignors Alex Kapitonov and Leny Petrov. However, defendant has failed to establish by proof in admissible form proper mailing of the pre-claim IME requests as to these assignors. Defendant submitted the affidavits of an employee of Allegiance Health Medical P.C. which schedules IMEs for defendant, and the affidavit of its “no-fault specialist and manager.” The affidavits, however, are insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the IME request letters were actually mailed. Nor did the affidavits contain a sufficiently detailed 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]; Careplus Med. Supply v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]; 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]).

Accordingly, defendant has failed to sustain its defense of nonattendance of scheduled pre-claim IMEs as to these assignors. There is also no merit to defendant’s argument on appeal that the claim for services rendered to assignor Petrov was properly denied on the additional ground of improper and/or excessive charges, since in
opposition to plaintiff’s motion for summary judgment, defendant failed to submit any proof in admissible form in support of this defense.

The claim pertaining to assignor Christina Tomlinson was not timely denied within the 30-day prescribed period (see 11 NYCRR 3.8 [c]), nor did defendant produce competent proof in admissible form to establish that the 30-day period was extended by timely verification requests for medical records and for a post-claim IME (see 11 NYCRR 65-3.5 [a]). Defendant’s submissions were insufficient to establish proper mailing of said verification requests (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, supra). Moreover, even assuming proper proof of mailing, defendant has failed to demonstrate that it complied with the follow-up requirements applicable to post-claim verification requests (see 11 NYCRR 65-3.6 [b]). Accordingly, as to this claim, defendant is precluded from asserting its defense of nonattendance at the scheduled IME (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

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

Rios and Belen, JJ., concur. [*3]

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

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

There appears to be no issue as to the mailing of a timely denial by the defendant as to the claim of two of the three assignors (Kapitonov and Petrov) due to said assignors’ failure to attend pre-claim independent medical examinations (IMEs).

As regards to Ms. Tomlinson, the defendant noticed her to appear for a pre-claim IME by letter dated November 12, 2002 scheduling an exam to be held on December 4, 2002. The Tomlinson claim was submitted on November 22, 2002 which was after the notice but prior to the time to appear. Upon Ms. Tomlinson’s failure to appear on December 4, 2002, the defendant noticed her to appear by letter dated December 10, 2002 for a rescheduled IME on December 24, 2002. Although I do not believe that defendant was required to provide for a re-scheduled exam for a pre-claim IME, I cannot fathom that it should be penalized for giving the plaintiff’s assignor a further opportunity to comply. Therefore the 30 day “delay” letter, although similarly unnecessary was nevertheless timely, effective and not inappropriate in this instance. It should however be understood that once an IME is demanded prior to the filing of a claim (pre-claim IME) then any and all subsequent requests for medical examinations will not alter the status of the original demand. It is abundantly clear that the insurer is not seeking an IME as a post-claim request for additional verification which would require compliance with the protocols set forth under the claim provisions. The mere fact that a subsequent request for an IME is sent after the plaintiff files a claim does not transform a second (or third) notice to reschedule a pre-claim IME into a post-claim additional verification request for an independent medical examination. Upon Ms. Tomlinson’s failure to attend the rescheduled IME, the defendant sent a timely denial of claim notice.

The remaining issue concerns the sufficiency of the defendant’s affidavits relating to the mailing of the various IME requests. Although the defendant’s affidavits do not contain detailed mailing procedures necessary to establish proof that a certain item was mailed when faced with a sworn statement that it was not received, 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]). Further, I find that the defendant’s timely denials of all of the plaintiff’s claims on the grounds that plaintiff’s assignors failed to attend reasonably requested pre-claim IME’s are sufficient to warrant denial of the plaintiff’s motion for summary judgment.
Decision Date: July 07, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (J. Battaglia, J.), entered June 1, 2004, which granted plaintiff’s motion for summary judgment in the sum of $879.73, and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, 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 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 show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant denied plaintiff’s claim more than two months after its receipt. The court below properly determined that defendant’s requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations in effect at the time lacked a provision entitling an insurer to an examination under oath (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists]). [*2]

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 claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s claims representative was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged
injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group
of Ins. Cos., 90 NY2d 195,199 [1997]). Consequently, plaintiff’s motion for summary judgment should have been denied. Inasmuch as there are triable issues of fact warranting a trial, defendant’s cross motion was properly denied.

Rios and Belen, JJ., concur.

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

Respondent,

-against-
UTICA MUTUAL INSURANCE COMPANY,

Appellant.

Golia, J.P., concurs 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: July 07, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med.
Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiffs’ motion, defendant asserted the defense 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]). Unlike the affidavit in the case of A.B. Medical Servs. PLLC v GMAC Ins., 7 Misc 3d 132[A], 2005 NY Slip Op 50602[U] [App Term, 2d & 11th Jud Dists]), the affidavit of the defendant’s claims representative herein set forth additional facts 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 [1997]; Mount Sinai Hosp., 263 AD2d at 18-19). [*2]Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: July 07, 2005