SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief on appeal, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on April 20, 2004, as denied their motion for summary judgment.

Order unanimously modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56 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 claims; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment in the sum of $11,139.79. We note at the outset that in their brief on appeal, plaintiffs have effectively withdrawn the claim of plaintiff Square Synagogue Transportation Inc. in the sum of $425. Moreover, said plaintiff’s motion for summary judgment as to its claim for $100, which defendant denied receiving, was properly denied since plaintiff’s proof of mailing as to this claim indicates a post date which is prior to the date of the bill. In the absence of any explanation of the discrepancy, plaintiff’s proof is insufficient to establish prima facie entitlement to summary judgment as to this claim. [*2]

With regard to the remaining claims, plaintiffs established a prima facie entitlement to summary judgment by proof that they 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. 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 plaintiffs’ motion, defendant argued that the claims of A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and Square Synagogue Transportation Inc., in the sum of $7,139.23, were properly denied on the ground that plaintiffs’ assignor failed to attend scheduled 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 plaintiffs’ assignor at pre-claim IMEs scheduled by defendant. Contrary to plaintiffs’ contention, the letter of Transcion Medical P.C., which schedules IMEs for defendant, and defendant’s denial of claim forms, which were submitted as part of plaintiffs’ moving papers, indicated that plaintiffs’ assignor did not appear for all of the scheduled IMEs listed in Transcion’s letter. Under the circumstances presented, in our opinion, such selective attendance by plaintiffs’ assignor established the assignors’ receipt of all IME requests listed in said letter. In the absence of any reasonable excuse for the nonappearance by plaintiffs’ assignor, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to the claim forms. This is so, even though it is uncontroverted that plaintiffs’ assignor attended some of the IMEs. Therefore, its defense of lack of medical necessity of the services provided to plaintiffs’ assignor was still viable and raised a triable issue with respect thereto. Accordingly, the court below properly denied said plaintiffs’ motion for summary judgment in the sum of $7,139.23 (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., Misc 3d , 2004 NY Slip Op 24527, supra).

With regard to the additional claims of Daniel Kim’s Acupuncture P.C. in the amount of $3,475.55, which were timely denied, the stated basis for denial was lack of medical necessity, rather than the failure to appear for an IME. In opposition to the motion for summary judgment, defendant was required 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). Defendant submitted an unsworn peer review report of an acupuncturist. Since said report was not in admissible form, it was insufficient to warrant denial of said plaintiff’s motion for summary judgment (see CPLR 2106; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra; 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 & [*3]11th Jud Dists]).

We note that to the extent that the decision of the court below rests on the lack of authentication of the assignments, it is erroneous. 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 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; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the order of the court below is modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56, and remanding the matter for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (J. Asarch, J.), dated October 1, 2003, as denied its motion for summary judgment and cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based [*2]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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied. The denial of defendant’s cross motion seeking summary judgment was also correct, inasmuch as the evidence which defendant [*3]
proffered was insufficient to establish, as a matter of law, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557, supra).
Decision Date: April 13, 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, Richmond County (P. Straniere, J.), entered March 9, 2004, which, inter alia, denied its motion to dismiss the complaint.

Order unanimously reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for medical services rendered. The defendant interposed an answer and a demand for a bill of particulars dated September 11, 2000. Notwithstanding this demand and a subsequent letter by defendant’s attorney dated January 11, 2002, plaintiff failed to serve a bill of particulars. By order dated March 14, 2002, the court granted defendant’s unopposed motion to preclude the plaintiff “from offering the particulars at . . . trial” unless the plaintiff served a bill of particulars within 30 days of service of the order with notice of entry. Defendant made a motion returnable December 18, 2003 for an order pursuant to CPLR 3126 to dismiss the complaint for plaintiff’s failure to comply with the order dated March 14, 2002. Plaintiff served a bill of particulars on January 27, 2004. As a result of the plaintiff’s failure to serve a bill of particulars by the date set forth in the conditional order of preclusion, that order became absolute (Michaud v City of New York, 242 AD2d 369 [1997]). In order for the plaintiff to avoid the adverse impact of an order of preclusion, it was incumbent upon him to demonstrate an excusable default and a meritorious claim (Felicciardi v Town of Brookhaven, 205 AD2d 495 [1994]). Plaintiff’s [*2]attorney offered no excuse for the default. Since the plaintiff cannot prove its case without the items demanded in the bill of particulars, defendant’s motion to dismiss the complaint should have been granted.
Decision Date: April 13, 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 (R. Garson, J.), entered on April 2, 2004, which granted plaintiff’s motion for summary judgment in the sum of $1,684.12.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered 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]; 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 defendant’s contention, its denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, these respective claims (see 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 [*2]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 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.; see also 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 [*3]
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]).

In opposition to plaintiff’s contention that the defendant’s denial was untimely, the defendant argues that its 30-day period was extended by its verification requests for examinations under oath (EUOs.) The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). With regard to claims submitted on or after April 5, 2002, an insurer’s request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules (see 11 NYCRR 65-3.5 [b], [e]; 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]). Additionally, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d
130[A], 2004 NY Slip Op 50693[U], supra; see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that plaintiff’s claims were submitted subsequent to April 5, 2002. However, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]; 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. Even assuming the existence of an insurance policy containing the revised endorsement, defendant has nonetheless failed to establish by competent evidence that its EUO verification requests were timely so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). The purported EUO notices dated July 1, 2002, for which there was no admissible proof of mailing, do not, in any event, constitute proper notice of EUOs, as they merely indicate a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, defendant failed to establish a timely denial of the claim and it is thus precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of non-conformity with the Workers’ Compensation schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic and Acupuncture, PLLC 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]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). [*4]
Decision Date: April 13, 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. Gesmer, J.), entered on March 26, 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 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 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]). Defendant’s denial of claim forms indicate that defendant did not deny the claim within the statutorily prescribed 30-day period (see 11 NYCRR 65-3.8 [c]), and that its verification requests did not extend the 30-day period since such requests were untimely (11 NYCRR 65-3.8 [a], [b]). Inasmuch as defendant failed to pay or deny the claim within the 30-day period, it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries 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 Analysis” report, referred to by defendant as a “Low Impact Study,” together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal [*2]nexus between the accident and the injuries claimed by plaintiff’s assignors, 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. v Chubb Group of Ins. Cos., 90 NY2d at 199; see also Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Contrary to plaintiff’s contention, the Accident Analysis report was relevant to the issue of causation (Valentine v Grossman, 283 AD2d 571 [2001]).

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]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: April 13, 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 (A. Fisher Rubin, J.), entered on November 20, 2003, as denied the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C.

Order, insofar as appealed from by plaintiff Daniel Kim’s Acupuncture P.C., unanimously reversed without costs, motion by plaintiff Daniel Kim’s Acupuncture 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. [*2]

Appeal by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Square Synagogue Transportation Inc. unanimously dismissed.

In this action, inter alia, to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff Daniel Kim’s Acupuncture P.C. established a prima facie entitlement to summary judgment 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]; 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 peer review report included by defendant in its opposition papers does not warrant denial of plaintiff’s motion for summary judgment, since said report was unsworn, and was therefore not in admissible form (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 N.Y. Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; cf. CPLR 2106). In view of the foregoing determination, we need not address the parties’ remaining contentions.

Accordingly, summary judgment is granted in favor of plaintiff Daniel Kim’s Acupuncture 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.

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]).
Decision Date: March 31, 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 February 17, 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 assigned first-party no-fault benefits for medical supplies furnished its assignors, plaintiff established 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]; 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]). Defendant’s failure to pay or deny the Tsvetkov claim within the prescribed 30-day period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) precludes defendant from interposing defenses to that claim with exceptions herein inapplicable (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and summary judgment should have been granted as to said claim.

Defendant denied the remaining claims on the sole ground that plaintiff failed to produce [*2]the “initial narrative report[s] from the preparing physician” pursuant to a timely initial verification request (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). However, while an insurer need not pay or deny a claim until all requested verification is received (11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]), the insurance regulations also impose on the insurer, when an initial verification request is not honored within 30 days, the duty to follow up with a second request within 10 days (now 15 days) (11 NYCRR 65.15 [d] [2], now 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). Any attempt by the insurer to deny the claim prior to exhausting the verification protocols is premature and of no effect (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; King’s Med. Supply v New York Cent. Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]). Since the tolling of the 30-day claim determination period, which occurred upon defendant’s initial verification request (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), lapsed in the absence of a timely follow-up request, defendant must be deemed to have failed to pay or deny the claims within the statutory time, precluding the defense based
on the failure to produce requested verification, as well as the additional defenses interposed for the first time in opposition to the summary judgment motion (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]).

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: March 31, 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 (J. Battaglia, J.), entered December 3, 2003, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding partial summary judgment in favor of plaintiff in the principal sum of $660 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 assigned first-party no-fault benefits, plaintiff provider established its entitlement to summary judgment prima facie by proof that it submitted statutory claim forms, setting forth the fact and the amount of the loss sustained ($660 and $895), 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]). Defendant issued timely requests for verification in the form of independent medical examinations (IMEs) (11 NYCRR 65.15 [c] [1], now 11 NYCRR 65-3.5 [a]). Upon assignor’s failure to appear for the first scheduled IME, defendant issued a claim denial form for the $660 claim, citing as the ground for denial, the eligible injured person’s failure to attend the IME. While this denial was timely under the 30-day claim determination rule (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [*2][1]), the sole ground set forth therein, the failure to appear for a post-claim IME, under the circumstances presented, lacked merit as a matter of law. Having requested IMEs post-claim IMEs, defendant was obligated to “follow up” its initial verification request with a second IME request within 10 days of the date on which the party to be examined failed to respond (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [c]; 11 NYCRR 65.15 [e] [2], now 15 days per 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). By failing to “follow up,” defendant abandoned its request for verification and therefore may not, as a matter of law, use the failure to provide verification, here an IME, as a basis to deny the claim (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Thus, the denial form was ‘ineffective to avoid preclusion” (Amaze Med. Supply v Eagle Ins. Co., 3 Misc 3d at 44; see Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d at 664) as to all defenses to the $660 claim with exceptions here inapplicable, and summary judgment should have been granted thereon (see S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists]).

With respect to the $895 claim, which defendant concededly never paid or denied, defendant asserted plaintiff’s failure to respond to two verification request letters, dated January 18, 2000 (3 days after the claim’s receipt) and February 19, 2000 which, if timely mailed, would constitute a defense to the action on the claim as an insurer need not pay or deny a claim until all requested verification is received (see 11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]). In our view, defendant’s proof of mailing sufficed to raise a triable issue of the timeliness of mailing. Thus, summary judgment was properly denied as to the claim for $895.

Accordingly, as to the claim for $660, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and as to the remaining claim, the matter is remanded for all further proceedings thereon.
Decision Date: March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered April 27, 2004, as denied their motion for partial summary judgment without prejudice to renew upon submission of proper papers.

Order unanimously affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to an assignor, the plaintiff establishes a prima facie entitlement to summary judgment by offering proof that it submitted claims which set 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]). By failing to append the necessary claim forms to their motion papers, plaintiffs did not establish their prima facie case, and the court below appropriately denied their motion for partial summary judgment with leave to renew upon submission of proper papers.
Decision Date: March 31, 2005

[*1]

Supreme Court, Appellate Term, Second Department, March 22, 2005

APPEARANCES OF COUNSEL

Laleh Hawa, Great Neck, for appellant. Amos Weinberg, Great Neck, for respondents.

{**7 Misc 3d at 87} OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

Plaintiffs commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors, Thomas Nelson, the operator of a motor vehicle rented from defendant’s insured, NYRAC, Inc., doing business as Budget-Rent-A-Car, and Patrice Nelson, a passenger in the same vehicle, both of whom were allegedly injured in an automobile accident on April 11, 2002. Plaintiffs thereafter moved for summary judgment. In support of their motion, plaintiffs submitted an affidavit in which Janet Safir stated that she was the “practice and billing manager” of “plaintiff,” even though there were three distinct plaintiffs in this matter. The affidavit did not indicate for which “plaintiff” Safir was the billing manager and this court cannot assume that she was acting on behalf of one particular plaintiff or on behalf of all plaintiffs. Consequently, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 83 [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp., 4 Misc 3d 135[A], 2004 NY Slip Op 50779[U] [App Term, 2d & 11th Jud Dists 2004]). Accordingly, plaintiffs failed to make a prima facie showing of entitlement to judgment as a matter law. Thus, we find that their motion was properly denied, albeit on grounds other than those relied upon by the court below.{**7 Misc 3d at 88}

Contrary to defendant’s contention, denial of its cross motion for summary judgment dismissing the complaint was proper. In its supporting papers, defendant alleged that the examination under oath of plaintiffs’ assignor, Thomas Nelson, indicated that the rental vehicle was used as a “temporary substitute” vehicle due to faulty brakes in his own vehicle which was insured by First Beacon Insurance at the time of the accident. Defendant argued that First Beacon Insurance was thereby the primary insurer for the rental vehicle, and that plaintiffs were not entitled to recover no-fault benefits under the Personal Injury Protection Endorsement in the automobile liability policy issued by defendant to NYRAC, Inc., doing business as Budget-Rent-A-Car. The court below denied defendant’s cross motion on the ground that the parties did not provide the insurance policy issued by First Beacon Insurance to plaintiffs’ assignor, Thomas Nelson, in the absence of which it could not be determined whether the policy included a “temporary substitute” clause, “thereby rendering the defendant not responsible for said claim.” We affirm the order insofar as it denied defendant’s cross motion, although not for the reasons set forth by the court below.

Insurance Law § 5105 (b) provides that the mandatory arbitration procedures promulgated or approved by the Superintendent of Insurance for claims arising from section 5105 (a) “shall also be utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits” (Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). The applicable insurance regulations provide in pertinent part that “an applicant who is an operator or occupant of an insured motor vehicle . . . who sustains a personal injury arising out of the use or operation in New York State of such motor vehicle, shall institute the claim against the insurer of such motor vehicle” (11 NYCRR {**7 Misc 3d at 89}65-3.12 [a] [1]). The regulations further provide:

“If a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given pursuant to section 65-3.3 or 65-3.4 (a) of this Subpart, by or on behalf of an eligible injured person, shall be [*2]responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part” (11 NYCRR 65-3.12 [b]).

The mandatory arbitration provisions of the insurance regulations expressly set forth that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority or payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section” (11 NYCRR 65-4.11 [a] [6]).

Pursuant to the foregoing authority, it is clear that plaintiffs were entitled to seek recovery of no-fault benefits from defendant under the Personal Injury Protection Endorsement of the defendant’s insurance policy issued to its insured (11 NYCRR 65-3.12 [a] [1]), and that as the first insurer to whom notice of claim was given, defendant was responsible for payment of no-fault benefits (11 NYCRR 65-3.12 [b]). Defendant’s argument that First Beacon Insurance is the primary insurer is no defense to this action and, in any event, raises the disputed issue of priority of payments as between insurers which must be submitted for resolution by mandatory arbitration (see Matter of Pacific Ins. Co., 150 AD2d at 456; Insurance Law § 5105 [b]; 11 NYCRR 65-4.11 [a] [6]). The court below was accordingly without jurisdiction to adjudicate the question of “priority of payments” raised by defendant (see New York Cent. Mut. Fire Ins. Co. v Amica Mut. Ins. Co., 162 AD2d 1009 [1990]; State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976 [1989]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455 [1989], supra; contra Damadian MRI in Garden City v Progressive Cas. Ins. Co., 196 Misc 2d 245 [Civ Ct, Queens County 2003]). In view of the foregoing, we do not adjudicate the issue of priority of payments between defendant and First Beacon Insurance. We note, however, in passing, that as between a no-fault insurer of a rental vehicle and a no-fault insurer of the nonowner renter, the primary source of coverage for no-fault benefits is the no-fault insurer of the rental vehicle (see Matter of Avis Rent-A-Car Sys., Inc. v GE Auto & Home Assur., 7 AD3d 704 [2004]; Matter of Sea Ins. Co. [Northbrook Prop. & Cas. Ins. Co.], 166 AD2d 327 [1990]; see also Lancer Ins. Co. v Republic Franklin Ins. Co., 304 AD2d 794 [2003]).

McCabe, P.J., Angiolillo and Covello, JJ., concur.