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 (E. Gesmer, J.), entered April 13, 2004, as denied its motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical equipment furnished its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of the statutory claim forms (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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). We note that 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 (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., [*2]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 [App Term, 9th & 10th Jud Dists 2004]).

The burden thus shifted to defendant to create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Absent a tolling of the statutory time (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]), defendant’s conceded failure timely to pay or deny the claims within the prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]) precludes its defenses with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant sought to prove such tolling via alleged written requests for initial verification to plaintiff and three alleged follow-up verification requests which sought to examine each assignor under oath. (This court will not consider additional letters offered for the first time below in an attorney’s sur-reply affirmation [e.g. Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 (2001); 622 Bldg. Co. v Empire Blue Cross & Blue Shield, 283 AD2d 202 (2001)]).

The initial verification letter with respect to the Briones claim for $1,175 was untimely and did not toll the statutory claim determination period. Defendant is therefore subject to the preclusion sanction as to that claim and summary judgment should have been granted absent the assertion of a defense that survives preclusion. While the remaining initial verification requests (which do not address all the claims at issue), were nominally timely (11 NYCRR 65-3.5 [a]), as were the follow-up written examination under oath (EUO) requests, there is no documentary proof of mailing nor an admission of receipt, and defendant’s affiant, a claims examiner, asserted no personal knowledge of actual mailing or of facts creating a presumption of mailing (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, defendant failed to create triable issues of fact as to the assignors’ alleged failure to comply with the initial and follow-up verification requests (e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001] [affiant’s failure to assert personal knowledge of mailing and “his conclusory allegations regarding (the insurer’s) office practices did not establish . . . that the defendant followed office practices ‘geared so as to ensure the likelihood’ that (the communications at issue) were always properly addressed and mailed on the date issued”]; 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]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists] [same]).
Finally, it is noted that while verification EUOs are authorized by an amendment to the Insurance Regulations effective April 5, 2002 (11 NYCRR 65-1.1 [d]), because the Insurance Department “bases the revised regulations’ applicability on the policy endorsement in effect when the claim is filed, to take advantage of the . . . [revision], an insurer must have the revised prescribed endorsement in new or renewed policies issued on or after that date” (Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24498 [App Term, 2d & 11th Jud Dists];
S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). While plaintiff’s claims were submitted subsequent to April 5, 2002, defendant’s submissions failed to establish that the insurance policy, in effect when the EUOs were sought, contained an endorsement authorizing such verification (see Star Med. Servs. [*3]P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. As the EUO requests were the only form of follow-up verification alleged, defendant failed to toll the prescribed claim determination period, rendering all denials untimely and precluding its defenses on this additional ground as well.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter 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: April 29, 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 (P. Sweeney, J.), entered June 4, 2004, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the principal sum of $1,999.12 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; 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 sued to recover $1,972.08 for a test performed on August 20, 2001 and $1,999.12 for a test performed on August 27, 2001. Defendant timely denied both claims based on peer reviews.

Plaintiff moved for summary judgment as to both claims. With regard to the test performed by plaintiff on August 20, 2001, the affirmed peer reviewer’s uncontroverted statement submitted in opposition to the motion asserted, inter alia, that there were no interim notes between the time of the initial evaluation, one day after the accident, and the performance of the test. Accordingly, the peer reviewer’s conclusion that there has been no showing that said test was medically necessary raises a triable issue of fact as to its medical necessity. However, there was an evaluation before the second test was performed by plaintiff on August 27, 2001, the report of which was apparently provided by plaintiff to defendant but was not given to the peer reviewer by defendant. In his affirmed statement submitted in opposition to the motion, the peer reviewer recommended denial of the August 27, 2001 claim citing the same reason given in the [*2]prior peer review. Since there was such an evaluation prior to plaintiff administering the second test on August 27, 2001, the defendant’s basis for denial as set forth in the peer review lacks merit in fact and thus plaintiff’s motion for summary judgment as to this claim should be granted.
Decision Date: April 29, 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 (A. Fisher Rubin, J.), entered October 28, 2003, 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 $2,670.40 in assigned first-party no-fault benefits for medical treatment rendered its assignor, plaintiff established its prima facie entitlement to summary judgment by its 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]). Defendant’s conceded failure to pay or deny the claim within 30 days of receipt precluded defendant from interposing most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

The so-called “delay letter” cannot be deemed to toll the claim determination period since it sought no verification and, in any event, issued after the period for verification had expired [*2](defendant does not deny it received the claim on January 7, 2002 as proved by plaintiff’s postal delivery receipt) (id. at 94; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138[A], 2004 NY Slip Op 50557[U] [App Term, 2d & 11th Jud Dists]). This court has repeatedly held that a letter “which merely informs a claimant that a decision on the claim is delayed pending an investigation and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period” (A.B. Med. Servs. PLLC v Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d & 11th Jud Dists]; see e.g. Melbourne Med., P.C., 4 Misc 3d at 94).

We further note that, while examinations under oath (EUOs) are available to an insurer under the revised regulations (effective April 5, 2002) which provide for them pursuant to the verification protocols, they are authorized only as to claims filed after that date and pursuant to a revised mandatory endorsement contained in new or renewed policies issued on or after April 5, 2002 (e.g. S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Thus, under New York’s No-Fault Law, defendant’s EUO requests, which issued for claims filed before the revised regulations’ effective date (e.g. Capio Med., P.C. v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; S&M Supply Inc. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 128[A], 2004 NY Slip Op 51250[U] [App Term, 9th & 10th Jud Dists]) were ineffective to toll the claim determination period.

Defendant seeks to apply Massachusetts’ no-fault EUO provisions which, defendant urges, allow for EUOs under the facts herein and also provide that an insured’s failure to cooperate with such requests would void defendant’s obligation to pay no-fault benefits. Defendant also invokes Massachusetts law insofar as it provides that an insured’s fraudulent application for an insurance policy is a basis for retroactive cancellation of the policy, which cancellation would, under New York’s No-Fault Law, implicate coverage and constitute an exception to the preclusion rule. According to defendant, claimant, holding a Florida driver’s license and Massachusetts automobile registration, was issued a Massachusetts policy in the expectation that he would apply for a Massachusetts driver’s license within the time required by Massachusetts law. Defendant concedes that the insured failed to do so and that it did not act to terminate the policy or even investigate whether, as it now asserts, the insured at all relevant periods resided in New York and garaged the subject vehicle in New York. However, defendant’s claim of a fraudulent application is presented merely in the form of conclusory assertions of fact and unsubstantiated suspicions by an attorney who lacks personal knowledge of the facts and without any supporting documentation in admissible form sufficient to create a triable issue of fraud (id.; see also Matter of Liberty Mut. Ins. Co. v Guerrier, 307 AD2d 1033 [2003]). If defendant’s assertions of fact are true, that at the time of the accident, the insured was a New York domiciliary who garaged his automobile in New York, and defendant elected to issue the policy to a party licensed in Florida and to continue said policy notwithstanding the insured’s failure to obtain a Massachusetts driver’s license within the time required by Massachusetts [*3]
law, it should not be permitted to bypass New York’s bar to retroactive cancellations (Vehicle and Traffic Law § 313) merely because the insured was involved in a nominally covered accident (cf. Matter of Integon Ins. Co. v Garcia, 281 AD2d 480 [2001]).
Decision Date: April 29, 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 (R. Garson, J.), entered April 1, 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 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 it received said claim. Contrary to defendant’s contention, however, its 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 [*2]Dists]).

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, an issue of fact exists and the court below properly denied plaintiff’s motion for summary judgment.
Decision Date: April 22, 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. Prus, J.), entered on February 17, 2004, as denied the motion for summary judgment by plaintiff D.A.V. Chiropractic P.C., as assignee of Latoya Jones, seeking the sum of $2,712.08.

Order, insofar as appealed from by plaintiff D.A.V. Chiropractic P.C., affirmed without costs.

Appeal, insofar as taken by plaintiff Daniel Kim’s Acupuncture P.C., dismissed.

In this action to recover assigned first-party no-fault benefits, plaintiff D.A.V. Chiropractic P.C., established a prima facie entitlement to summary judgment in the sum of $2,712.08 for medical services rendered to its assignor, Latoya Jones, 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]; 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]). In opposition to plaintiff’s motion and [*2]in support of its cross motion for summary judgment, defendant argued that the claims were properly denied based on the assignor’s failure 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 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., ___Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d &
11th Jud Dists]; 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 that defendant issued timely denials based on the nonattendance of plaintiff’s assignors at the pre-claim IMEs scheduled by defendant. Defendant’s proof of mailing, consisting of the affidavit of the operations manager for Independent Physical Exam Referrals, which schedules IMEs for defendant, and the affidavit of defendant’s claims representative, was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; 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]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., Misc 3d , 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to plaintiff’s claim forms, and raised a triable issue of fact as to the medical necessity of the services rendered plaintiff’s assignors (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., Misc 3d , 2004 NY Slip Op 24527[U], supra). Inasmuch as plaintiff neither offered a valid excuse for its assignors’ nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue as to medical necessity was raised. Therefore, the court properly denied plaintiff’s motion for summary judgment as well as defendant’s cross motion for summary judgment.

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

Patterson, J.P. and Rios, J. concur.

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

Golia, J., concurs in part and dissents in part and votes to modify the order in the following memorandum:

Although I agree with the findings of my colleagues that defendant’s proof of mailing IME scheduling letters demonstrated that defendant, in conjunction with Independent Physical Exam Referrals, adhered to established business practices of proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that plaintiff failed to come forward with an acceptable excuse for its [*3]
assignors’ nonattendance, it is my opinion that plaintiff’s failure to have done so warrants the granting of defendant’s cross motion for summary judgment and the substantive sanction of dismissal, for the reasons set forth in my dissent in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. ( Misc 3d , 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: April 22, 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.), entered March 5, 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 the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical services provided its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (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 the unsworn reports of an independent medical examination (IME) of assignor, conducted before plaintiff filed the first of its four claims upon which defendant explicitly relied in each of its subsequent timely claim denials, and an unsworn peer review report dated subsequent to its denial of one of the four claims. The unsworn IME and peer review reports did not constitute competent proof in admissible form and were insufficient to warrant denial of plaintiff’s motion (e.g. 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. [*2]Servs. v New York Central Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [2004] [App Term, 2d & 11th Jud Dists]). Defendant proffered no acceptable excuse for the failure to submit the reports in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). [*3]

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

Decision Date: April 22, 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 (S. Hinds-Radix, J.), entered March 10, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment denied and matter remanded to the court below for all further proceedings.

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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries were causally unrelated to the accident, despite the untimely denial of the claim ([*2]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 analysis report” (referred to by defendant as the “low impact study”), accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, 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 Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should not have been granted and the matter is remanded for further proceedings.
Decision Date: April 22, 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 (S. Hinds-Radix, J.), entered March 18, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment denied and matter remanded to the court below for all further proceedings.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 [*2]
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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries were causally unrelated to the accident, despite the untimely denial of the claim (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 analysis report” (referred to by defendant as the “low impact study”), accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, 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 Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should not have been granted and the matter is remanded for further proceedings.
Decision Date: April 22, 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 (A. Fisher Rubin, J), entered on November 20, 2003, which denied their motion for summary judgment.

Order modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov 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 causes of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

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 Lvov Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that they submitted their 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 said plaintiffs’ motion for summary judgment, defendant has failed to raise any triable issue of fact.

Defendant denied the claims submitted by these plaintiffs on the ground that the injuries claimed by plaintiffs’ assignor could not have occurred due to the subject motor vehicle accident, based upon an “Injury Potential Analysis” and peer review report. Despite the untimely denial of plaintiffs’ claims, defendant is not precluded from asserting 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]). In the instant case, however, the affidavit submitted by defendant’s claims representative was insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Moreover, the unsworn “Injury Potential Analysis” did not constitute competent proof in admissible form (see Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [2004] [App Term, 2d & 11th Jud Dists]; Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists]), and defendant failed to proffer an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). Further, the peer review report submitted by defendant in opposition to the motion in support of its defense of a lack of causal nexus between the accident and the injuries claimed by plaintiffs’ assignor, was unsworn. Since said report was not in admissible form, it was insufficient to warrant denial of plaintiffs’ motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [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]).

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Lvov Acupuncture P.C., and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents and votes to modify the order and deny plaintiffs’ motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiffs’ motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud 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]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (____ Misc 3d ____, 2004 NY Slip Op 24501 [App Term, 2d & 11th Jud Dists]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit which makes reference to such report, are sufficient for the purpose of raising a triable issue of fact. This is especially true where there is an allegation of fraud. Those issues are best left to the trier of fact.

Accordingly, I would modify the order of the lower court and would deny the plaintiffs’ motion for summary judgment.
Decision Date: April 22, 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 (E. Gesmer, J.), entered April 2, 2004, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff moved for summary judgment. However, in support of its motion, plaintiff relied upon an affidavit which did not establish that the affiant had the
requisite personal knowledge. As a result, the affidavit was of no probative value (see Republic W. Ins. Co. v RCR Bldrs., 268 AD2d 574 [2000]). Consequently, the court
properly denied plaintiff’s motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). [*2]
Decision Date: April 13, 2005