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, Queens County (D. Butler, J.), entered March 5, 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 the statutory interest and an assessment of attorney’s fees.

In this action to recover $2,616.29 in first-party no-fault benefits for medical equipment supplied its assignors, plaintiff established its prima facie entitlement to [*2]
summary judgment by proof that it submitted statutory claim forms setting forth the fact and 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). We note that the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle to assert the facts of a no-fault claimant’s submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56, supra; Ocean Diagnostic Imaging v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51032[U] [App Term, 9th & 10th Jud Dists]).

Defendant’s untimely denial of the Arias claim (for $790.45) precluded defenses to the action, with exceptions not herein relevant, and warranted summary judgment on this ground alone (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to the [*3]
remaining claims (Aranova for a total of $1,825.84), which defendant denied on the basis of unsworn nurse’s “medical reviews” of the treatment files, as plaintiff properly objected below, said unsworn reviews “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]; 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]). Defendant offered no acceptable excuse for its failure to proffer the reviews in admissible form in opposition to the motion for summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, the herein medical reviews, which included no statement of the reviewing nurse’s training, observations or actual experience, failed to establish the competency of the reviewers’ medical opinions and conclusions drawn from the facts (People v Monroe, 307 AD2d 588, 591 [2003]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). [*4]

Finally, defendant’s challenge to the propriety of the assignment of benefits form is also without merit. Defendant failed timely to seek verification of the assignment’s validity or to assert facial deficiencies in the assignment form as a basis for the claims’ denial and, thereby, it waived any such objections. While we are as mindful as our dissenting colleague of the integrity of the assignment process, we are constrained by the broad language adopted by the Appellate Division which unambiguously refers all issues bearing upon the validity of a no-fault benefits assignment to the verification process (New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Presbyterian Hosp. In City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]) and which this court applied in analogous circumstances (e.g. Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 6 Misc 3d 130[A], 2005 NY Slip Op 50076[U] [App Term, 2d & 11th Jud Dists]). [*5]

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and 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 modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint in the following memorandum:

I simply cannot concur with the majority opinion as relates to the facts of this case.

With regard to the facts herein, a document has been submitted as an “assignment” of benefits by the alleged eligible insured to the benefit of the plaintiff medical provider. It is, in fact, not an assignment, or any other document with “legal”
significance. It is simply a preprinted form, that is not signed, acknowledged, or ratified by anyone. Indeed, it doesn’t even rise to the level of a forgery.

Nevertheless, the majority finds that this “document” falls within the line of cases that holds that the failure to demand verification during the claims procedure constitutes a waiver and precludes any objection to the assignment form (see Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists]). Therefore, my colleagues find that this paper should be deemed to be equivalent to an assignment form that was signed but not notarized, or notarized but failed in some other aspect.

Even in the simplest of circumstances no one would present a document for payment without making sure that a signature was affixed thereon. It appears that this simplest of circumstances does not appeal to the majority.

The line of appellate cases relied upon by the majority, and others on which I participated, have all dealt with assignments which contained the signature of the eligible insured person. My dissent in this case does not conflict with my findings in those cases and I therefore do not address whether or not I still adhere to those decisions.

I simply do not fathom how an unsigned piece of paper can form the predicate for an order granting summary judgment directing payment from anyone to anyone.

The mere fact that the defendant failed “timely to seek verification of the assignment’s validity or to assert facial deficiencies” should not be deemed to confer standing to the holder of an unsigned piece of paper and thereby result in a money judgment.

Accordingly, I dissent and vote to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint.
Decision Date: July 07, 2005

[*1]

Supreme Court, Appellate Term, Second Department, July 7, 2005

Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444, reversed.

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

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

Memorandum.

Order unanimously reversed without costs, motion for partial summary judgment by plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, granted and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon.

Appeal by plaintiff Jamil M. Abraham M.D. P.C., doing business as Park Health Center, unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, established a prima facie entitlement to partial summary judgment in the sum of $1,791.73 for medical services rendered to its assignor, by proof that it submitted the 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. [*2]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]). In opposition to plaintiff’s motion, defendant challenged the sufficiency of plaintiff’s prima facie showing on the ground that plaintiff’s claim forms were not proper verification claim forms. As the court below noted, while NF-3 claim forms contain an entry calling for the disclosure of the relationship between the billing provider and the treating provider, the generic claim forms submitted by plaintiff, which identified it as the billing provider and the treating physician as Dr. Myung Choi, do not contain such an entry, and do not otherwise indicate the relationship between the billing and treating providers. The court determined that pursuant to 11 NYCRR 65.15 (j) (1), if the treating provider was an employee of the billing provider, then the billing provider would be entitled to recover no-fault benefits, but that if the treating provider was an independent contractor, the billing provider would not be entitled to direct{**9 Misc 3d at 54} payment, since it did not provide the medical services. The court then held that in the absence of information disclosing the relationship between the billing provider and the treating physician, plaintiff did not submit a proper proof of claim, and hence failed to establish a prima facie case of entitlement to payment of no-fault benefits.

We note initially that the court below properly determined that a billing provider may not recover no-fault benefits where the services were rendered by an independent contractor. The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

Accordingly, where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists, Mar. 1, 2005]). A defense that a plaintiff in an assigned first-party no-fault action may not maintain the action because it is not a “provider” within the meaning of the insurance regulations, and hence that no-fault benefits are not assignable to it, is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003] [transportation charges are no longer assignable under the revised regulations [*3]effective April 5, 2002]).

In the instant case, the plaintiff’s claim forms do not disclose the relationship between the billing provider and treating physician{**9 Misc 3d at 55} (cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [2005], supra). However, contrary to the lower court’s determination, said omission does not defeat plaintiff’s prima facie showing. In opposition to plaintiff’s motion, defendant did not assert the nonwaivable defense that the services were provided by an independent contractor, and that plaintiff was therefore not a “provider” under 11 NYCRR 65.15 (j) (1). Rather, defendant’s defense was predicated merely on the insufficiency of the plaintiff’s claim forms without asserting and establishing by proof in admissible form that the status of the treating provider was in fact that of an independent contractor, a fact which could have been ascertained by means of the verification process. In the absence of proof that defendant sought proper verification of the alleged deficiencies in the claim forms and that it timely denied the claims on this ground, it has waived any objections pertaining to the adequacy of the claim forms (see Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]). Accordingly, upon the record before us, we disagree with the determination of the court below that the omitted information in plaintiff’s claim forms warrants a denial of its motion for summary judgment.

Defendant’s remaining argument, namely, that plaintiff failed to produce an authenticated assignment form, is without merit. 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 such 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 2001]).{**9 Misc 3d at 56}

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

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

[*1]

Supreme Court, Appellate Term, Second Department, July 7, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants-respondents. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent-appellant.

{**9 Misc 3d at 37} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously modified by granting the defendant’s cross motion to dismiss the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiffs DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and G.A. Physical Therapy P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, the NF-3 claim forms attached by plaintiff A.B. Medical Services PLLC in support of its motion for summary judgment provided, under the item calling for information where the “treating provider is different than [the] billing provider,” that the licensed “treating provider” was Dr. Ronald Collins, M.D., and that the “business relationship” was that of “independent contractor.”

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “[a]n insurer shall pay benefits . . . directly to the applicant or . . . upon [*2]assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

It is undisputed on the record that both A.B. Medical and Dr. Collins are licensed providers of health care services, and, as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the{**9 Misc 3d at 38} defendant insurer. Accordingly, the order of the court is hereby modified by providing that defendant’s cross motion for summary judgment dismissing the complaint as to plaintiff A.B. Medical is granted.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see Informal Ops dated Feb. 21, 2001, Feb. 5, 2002, Mar. 11, 2002, Oct. 21, 2003) which are entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 20, 2004, which denied its motion for summary judgment.

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 assigned first-party no-fault benefits for medical equipment provided its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted the functional equivalent of the statutory claim forms (see 11 NYCRR 65-3.5 [a], [f]) setting forth the fact and 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]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists]; see also 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). Further, the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application, whether for health services or medical equipment (e.g. Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra), and there is no requirement that a billing manager allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor (see King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d at 56) particularly where, as here, assignor signed a document acknowledging receipt of the prescribed equipment, the authenticity or accuracy of [*2]which was unchallenged below. If defendant questioned the document’s propriety, its remedy was to invoke the verification procedures.

Insofar as the determination below rests on the purported absence of proof of an assignment, it is erroneous as plaintiff submitted copies of combined equipment receipt/assignment of benefits forms, which submission defendant does not deny. In any event, if defendant perceived any defect on the face of the assignments or required further proof thereof, its remedy was to seek verification of same, or at least, to allege such defect as a basis of a timely denial (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]; 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. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70, 71 [App Term, 2d & 11th Jud Dists 2004]). With respect to the alleged lack of authentication of the assignor’s signature (raised for the first time on appeal), it is unpreserved and without merit. “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 Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]; see also Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d at 71).

Accordingly, plaintiff’s motion for summary judgment should have been granted, and 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.
Decision Date: July 06, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Suffolk County (T. Bean, J.), dated September 20, 2004, granting defendant’s motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

As subrogee, plaintiff commenced this action on or about May 26, 2004 to recover monies paid to its insured for amounts in excess of no-fault benefits, for injuries arising out of an accident occurring on May 2, 2001. Contrary to the determination of the court below, Insurance Law § 5105 which pertains to “Settlement between insurers” has no application herein (see Federal Ins. Co. v Hansen, 162 AD2d 224 [1990]).

After defendant moved for summary judgment dismissing the complaint on the ground that the instant action was, inter alia, barred by the statute of limitations, plaintiff asserted that it had previously served defendant with a summons and complaint in April 2004, by which it sought to recover the same excess no-fault benefits, and cross-moved
for leave to file the proof of service for its April summons and complaint nunc pro tunc
(see UDCA 411). Although the court below did not address the cross motion in its written decision, upon a review of the record, we find that under the circumstances herein, said cross motion should not be granted. Inasmuch as the subrogee acquires only the rights that the subrogor had, the statute of limitations begins to run from the date of the accident (see Allstate Ins. Co. v Stein, 1NY3d 416 [2004]). Since the instant action was commenced more than three years after the accident, the action was time-barred and the complaint was properly dismissed.
Decision Date: June 27, 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, Queens County (D. Butler, J.), dated March 10, 2004, which denied his motion for summary judgment.

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 assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that he 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]). Plaintiff submitted proof in admissible form that the claim was mailed to defendant on October 20, 1997. It is uncontroverted that defendant did not timely pay or deny the claim within the 30-day statutory period subsequent to the receipt of the claim, nor did it seek to extend that time by requesting verification (see 11 NYCRR 65.15 [g] [3]; [d] [1], now 11 NYCRR 65-3.8 [c]; 65-3.5 [a]). Accordingly, contrary to the determination of the court below, defendant is precluded from [*2]raising the defense of intoxication (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

There is no merit to defendant’s contention that its denial of claim form dated August 7,1997, which preceded its receipt of the claim, may operate as a valid denial of no-fault benefits. The insurance regulations provide that an insurer must either pay or deny the claim “within 30 calendar days after proof of claim is received” (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). Further, “no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim which shall include verification of all of the relevant information requested” pursuant to the verification rules (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [1]). The regulations further provide that “an insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all of the relevant information requested pursuant to section 65-3.5” (11 NYCRR 65-3.8 [b] [3]).

Accordingly, pursuant to the insurance regulations, defendant’s blanket general denial of claim which was issued by the defendant prior to its receipt of the plaintiff’s claim for no-fault benefits does not constitute a valid denial of no-fault benefits for said claim (see A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005] [defendant’s untimely denial of claim cannot be deemed timely on the basis of an earlier blanket disclaimer issued directly to plaintiff’s assignor prior to plaintiff’s rendition of services and submission of claim]; cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002] [insurer may not issue a denial of claim pending a verification request and plaintiff’s time to respond has not run out]).

The denial of claim form is also 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]). [*3]

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 27, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied plaintiff’s motion for summary judgment.

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 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]; 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]).

In opposition to plaintiff’s motion, defendant asserted that it has a founded belief that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]). For the reasons this court [*2]set forth in the case of A.B. Med. Servs. v Eagle Ins. Co. (3 Misc 3d 8 [2003]), which involved the same accident, same assignor and the same showing by defendant in support of its claim of fraud, plaintiff’s motion for summary judgment should be granted.
Decision Date: June 27, 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 (E. Spodek, J.), entered June 21, 2004, as denied their motion for summary judgment. Cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted and matter remanded 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 this action to recover assigned first-party no-fault benefits for medical services provided their assignor, plaintiffs established their prima facie entitlement to summary judgment by evidentiary proof that they submitted statutory claim forms, 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]). Defendant insurer timely rejected the claims on the sole ground that at the time of the accident, assignor was acting in the course of his employment, mandating that plaintiffs pursue their compensation claim before the Workers’ Compensation Board (Board). Plaintiffs, alleging that the accident was not employment-related, moved for summary judgment, whereupon defendant cross-moved for summary judgment.

In our view, the insurer failed to establish the defense’s “potential merit” so as to warrant Board review of the facts (Lanpont v Savvas Cab Corp., 244 AD2d 208, 210 [1997]; see Alvarez [*2]v Prospect Hosp., 68 NY2d 320, 324 [1986]). As against plaintiffs’ proof, inter alia, assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor “was not
working on December 12, 2001″ (and necessarily, that assignor was not en route to or from work at the time of the incident [Baughman v Merchants Mut. Ins. Co., 213 AD2d 1030 (1995)]), defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the claimant was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report, offered for the first time in defendant’s reply papers below, which will not be considered by this Court (e.g. Johnston v Continental Broker-Dealer Corp., 287 AD2d 546 [2001]; Azzopardi v American Blower Corp., 192 AD2d 453 [1993]). Thus, defendant’s claim that assignor acted in the course of his employment at the time of the accident was “mere speculation” (Anarumo v Terminal Constr. Corp., 143 AD2d 616, 617 [1988]) and failed to establish any issues of fact regarding Workers’ Compensation coverage that must be resolved by the Board (see Lanpont, 244 AD2d at 210 [“Workers’ Compensation defense” successfully interposed where “(s)ufficient facts appear in the record to demonstrate the (defense’s) potential merit”]). Accordingly, the order below should be modified to grant plaintiffs summary judgment and the matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees as authorized by Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 09, 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. Nadelson, J.), entered on June 18, 2004, which denied its motion for summary judgment.

Order 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 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 plaintiff’s 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]). The Accident Reconstruction Analysis report, which was sworn to by the consultant who prepared said report, constituted admissible evidence by an expert in the field in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignor (see Valentine v Grossman, 283 AD2d 571 [2001]), and 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; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). [*2]

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: June 09, 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 (A. O’Shea, J.), entered July 7, 2004, as denied its motion for summary judgment.

Order insofar as appealed from 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 its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). While defendant timely denied the claim, it nevertheless had to submit proof in admissible form in opposition to the motion to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC, 4 Misc 3d at 86).
Upon a review of the record, we find that defendant sufficiently rebutted plaintiff’s prima facie showing by raising the preserved triable issue of fact as to whether it was provided with notice of the accident within 90 days as required by the insurance regulations. Accordingly, the court below properly denied plaintiff’s motion for summary judgment (see e.g. Hackensack Univ. Med. Ctr. v New York City Tr. Auth., 10 AD3d 675 [2004]). [*2]
Decision Date: June 03, 2005