SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered September 26, 2003, granting plaintiff’s motion for partial summary judgment to the extent of striking defendant’s first affirmative defense, and implicitly denying defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the sum of $398.68 and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon, and for all other proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover $8,205.98 in assigned first-party no-fault benefits, the court below granted plaintiff partial summary judgment, to the extent of “preclud[ing]”
defendant “from defending its denials” based on the assignor’s failure to appear for two independent medical examinations (IMEs) scheduled prior to plaintiff’s submission of the first of its statutory claim forms and, implicitly, denied defendant’s cross motion for summary judgment based on the nonappearances. However, defendant’s denials of plaintiff’s claims for $151.28, $67.40 and $180.00 in no-fault benefits were untimely (Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and as defendant interposed no defense that survived the preclusive effect of the untimely denials, summary judgment should have been granted as to those claims. We note that said untimely denials precludes the defense that the benefits claimed exceeded the maximum benefits provided by the Workers’ Compensation Law (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d [*2]583, 586 [2002]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]; Mingmen Acupuncture Servs. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40244 [U] [App Term, 9th & 10th Jud Dists]).

However, for the reasons set forth in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), the failure of plaintiff’s assignor to attend the IMEs, sought before plaintiff submitted its statutory proofs of claim, does not afford the insurer a defense to the action but rebuts the presumption of medical necessity that attaches to the claim forms (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Because plaintiff failed to support its motion with a reasonable excuse for the assignor’s failure to attend or with a showing that the IME requests were unreasonable, or in the alternative, with proof of the treatments’ medical necessity independent of the claims forms, defendant’s proof of the assignor’s nonappearance defeated plaintiff’s summary judgment motion with the exception of the claims that were untimely denied.

Accordingly, the order is modified to grant plaintiff partial summary judgment in the sum of $398.68, and the matter remanded for the calculation of statutory interest
and attorney’s fees thereon, pursuant to Insurance Law § 5106 (a), and for all further proceedings on the remainder of the claims in accordance with the determination herein.

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

Golia, J., dissents in a separate memorandum.

Golia, J. dissents and votes to deny plaintiff’s motion for partial summary judgment and to grant defendant’s cross motion for summary judgment set forth in the following memorandum:

While I agree with the majority’s grant of summary judgment with respect to the claims untimely denied, defendant’s cross motion for summary judgment should have been granted and the complaint dismissed as to the remaining claims for the reasons set forth in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (__ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: February 02, 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, Queens County (J. Golia, J.), entered June 10, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ motion for summary judgment was supported by the affidavit of Janet Safir, “the practice and billing manager of each plaintiff company,” who averred that she submitted to defendant
the “claim forms and medical reports” which were annexed to the motion papers. There was, however, no allegation in the affidavit as to when the fifteen annexed claim forms were submitted. A plaintiff establishes a prima facie entitlement to summary judgment by offering evidentiary proof that it 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; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which includes verification of all relevant information requested (see 11 NYCRR 65.15 [g] [1], now 11 NYCRR [*2]65-3.8 [a] [1]). In the instant case, in order to establish that payment on the claims being sued upon was overdue, plaintiffs had to demonstrate that the requisite 30 calendar days had elapsed, which they sought to do by relying upon defendant’s letters, dated February 13, 2002, acknowledging receipt of claims, but not specifying the particular claims received. In the absence of any evidence as to when plaintiffs submitted their claim forms to defendant, and in the absence of any specification in defendant’s letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon [*3]
were overdue. Accordingly, having failed to make a prima facie showing of entitlement to judgment as a matter of law, plaintiffs’ motion for summary judgment was properly denied by the court below.
Decision Date: February 02, 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 (L. Baily-Schiffman, J.), entered on November 21, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary
judgment by the submission of evidentiary proof that it mailed, and defendant received, the statutory claim forms, and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; [Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). [*2]Moreover, defendant’s requests for examinations under oath did not toll the 30-day claim determination period since the applicable insurance regulations did not contain provisions requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

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 claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s claims specialist 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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary judgment should have been denied. Inasmuch as defendant has failed to establish entitlement to judgment as a matter of law, its cross motion for summary judgment was properly denied.

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

Golia, J., taking no part.
Decision Date: January 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 (S. Hinds-Radix, J.), entered on January 7, 2004, as denied the motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Square Synagogue Transportation Inc. and S & M Supply Inc. for summary judgment, and which denied the motion by plaintiffs Daniel Kim’s Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment with leave to renew.

Order insofar as appealed from unanimously modified by striking the provision granting plaintiffs Daniel Kim’s Acupuncture P.C. and Somun Acupuncture P.C. leave to renew their motion for summary judgment; as so modified, affirmed without costs.

A plaintiff health care provider establishes a prima facie entitlement to no-fault benefits by proof that it submitted the statutory claim form, 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]). An [*2]insurer’s failure to timely pay or deny the claim within the 30-day statutory period precludes it from asserting most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, contrary to defendant’s contention, and the apparent determination of the court below, a timely denial does not relieve an insurer opposing a motion for summary judgment from the necessity of submitting proof in admissible form to rebut a plaintiffs’ prima facie case (see e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

The court denied plaintiffs’ motion for summary judgment on the ground that issues of fact exist with regard to the validity of the assignments. To the extent that the court’s decision may have been based on the lack of proof authenticating the signature of plaintiffs’ assignor on the assignment forms, it is erroneous. The lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. PLLC. v Nationwide Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24506[U] [App Term, 2d & 11th Jud Dists]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. 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]).

We note that 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 [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 prior to the effective date of the revised regulations.

Despite its untimely denial of certain of plaintiffs’ claims, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,
201 [1997]). The affidavit submitted by defendant’s litigation coordinator, and the accompanying examinations under oath, were 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., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied and renewal thereof would be unwarranted.
Decision Date: January 27, 2005

[*1]

Supreme Court, Appellate Term, Second Department, January 20, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Stern & Montana, LLP, New York City (Richard Montana of counsel), for respondent.

{**7 Misc 3d at 15} OPINION OF THE COURT

Memorandum.

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 providers established a prima facie entitlement to summary judgment by proof of submission of the 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]; 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]). Furthermore, defendant’s delay letters, acknowledging receipt of the bills submitted by plaintiff Daniel Kim’s Acupuncture P.C. totaling $1,860.56, adequately established that said 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 2004]).{**7 Misc 3d at 16} There was also proper proof of mailing of the claim for $935 submitted by plaintiff Somun Acupuncture P.C. (see Amaze Med. Supply v Allstate Ins. Co., 3 [*2]Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists 2004]).

While an insurer’s failure to timely pay or deny the claim within the 30-day statutory period precludes it from asserting most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the apparently timely denial of plaintiff A.B. Medical’s claim for $1,972.08 does not relieve defendant from the necessity of submitting proof in admissible form in opposition to plaintiff’s motion for summary judgment (see e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

The court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs did not submit admissible proof authenticating the signature of plaintiffs’ assignor on the assignment forms. However, the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id.; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. 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]).

We note that 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 [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 prior to the effective date of the revised regulations.

Despite its untimely denial of most of plaintiffs’ claims, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s litigation coordinator, and the accompanying examinations under oath, were 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., 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 {**7 Misc 3d at 17}(see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.

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

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 (M. Solomon, J.), entered on August 20, 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.

Plaintiff commenced the instant suit to recover no-fault benefits for medical supplies furnished to its assignor. Plaintiff established prima facie entitlement to summary judgment by proof that it 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]; 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 failed to establish the existence of a triable issue of fact. Defendant denied plaintiff’s claim for no-fault benefits on the ground that plaintiff’s assignor failed to appear for independent medical examinations (IMEs) scheduled prior to defendant’s receipt of plaintiff’s claim. While defendant was entitled to request IMEs prior to its receipt of plaintiff’s claim, failure to attend such IMEs is not subject to sanctions under the claim [*2]rules of the insurance regulations, and hence, such failure of plaintiff’s assignor did not constitute a proper basis for denial of no-fault benefits (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]). There being no other defense asserted by defendant, plaintiff’s motion for summary judgment is granted and [*3]
the matter is remanded 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: December 22, 2004

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 July 23, 2003, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary
judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,243.43 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees on that claim, and for all further proceedings on plaintiff’s remaining claim; as so modified, affirmed without costs.

Plaintiff’s claim in the amount of $1,243.43 was not denied until more than
30 days after it was submitted (see 11 NYCRR 65-3.8 [a], [c]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]), defendant insurer was precluded from raising most defenses. Inasmuch as plaintiff established a prima facie case by the submission of a complete proof of claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue, it was entitled to summary judgment on the claim (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

Neither party is entitled to summary judgment on the claim in the sum of $1,196.21. On [*2]April 22, 2002, defendant timely denied this claim, which had been received on April 9, 2002, on the ground that plaintiff’s assignor failed to appear for a chiropractic examination on February 20, 2002 and for an acupuncture examination on February 21, 2002.

An insurer has a right to an IME following an oral or written notice of claim
and prior to the insurer’s receipt of the statutory claim forms or their functional equivalent (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ______ [decided herewith]). Where, as here, 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, or in support of its own motion for summary judgment, the presumption of medical necessity which otherwise attaches to the claim forms is prima facie rebutted, and raises a triable issue as to the medical necessity of the health benefits provided (Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _________ [decided herewith]; Millennium Med. Diagnostics v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388). While a plaintiff may successfully oppose a defendant’s summary judgment motion and avoid the negation of the presumption of medical necessity by establishing in its opposition papers that its assignor’s failure to attend the IME was excusable or that the request was unreasonable in light of all the surrounding circumstances existing at the time of the request, in the instant case plaintiff failed to establish either.

Since it was uncontroverted that the eligible injured person failed to comply
with a reasonable request for a pre-claim-form IME and plaintiff failed to make a prime facie showing of medical necessity, its motion for summary judgment was properly denied. Moreover, defendant’s cross motion for summary judgment should likewise have been denied inasmuch as questions of fact exist, including whether the benefits provided were medically necessary (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]).

Aronin, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order in the following
memorandum:

For the reasons stated in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]), I would affirm the order of the court below.
Decision Date: December 22, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered May 23, 2003, as denied that branch of its motion seeking summary judgment in the sum of $2,176.30.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment in the principal sum of $2,176.30, and matter remanded to the court below for the calculation of statutory interest and assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $4,366.28. Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment on its claims for $1,198.82, $795.30 and $182.18, by showing that it submitted properly completed claim forms to defendant (see 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]). [*2]

With respect to the claim for $1,198.82, the affidavit of plaintiff’s “practice and billing manager” in which she stated that she herself mailed the claim form from the local post office was sufficient to give rise to a presumption that the claim form was received. Defendant’s mere denial of receipt, in the form of an affirmation of counsel, standing alone, was insufficient to overcome the presumption of receipt which attaches to items which are properly mailed (see Kihl v Pfeffer, 94 NY2d 118 [1999]). Inasmuch as plaintiff, in annexing the certificate of mailing to its reply papers, did not seek to introduce new arguments or grounds in support of the motion, and was merely
attempting to respond to defendant’s claim of nonreceipt, the court below should have considered the reply. Having failed to rebut the presumption of receipt and to pay or deny the claim within the 30-day period prescribed by 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]), summary judgment with respect to this claim should have been granted.

With respect to the claims for $795.30 and $182.18, defendant’s denial was based on plaintiff’s assignor’s failure to attend scheduled independent medical examinations (IMEs). Although defendant had the right to request attendance at IMEs scheduled prior to the insurer’s receipt of plaintiff’s proofs of claim (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op______ [decided herewith]), it failed to establish by competent evidence that it did so. Defendant’s opposition papers consisted of an affirmation of defense counsel who was without personal knowledge of the facts (see Rue v Stokes, 191 AD2d 245 [1993]). Defendant did not submit proof of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) nor did defendant create a presumption of mailing by describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, summary judgment as to these claims was likewise appropriate.

We note that the insurance regulations do not require that the signature of the assignor on the assignment of benefits form be authenticated. In any event, the insurer’s failure to allege in its claim denial form any other alleged deficiencies in the assignment of benefits form constitutes a waiver of any defenses with respect thereto (see Presbyterian Hosp. 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 matter is remanded to the court below for a calculation of the statutory interest due on $2,176.30, that portion of the claims for which summary judgment is granted, an assessment of attorney’s fees due on $2,176.30, pursuant to Insurance Law § 5106 [a] and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: December 22, 2004

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 (D. Waltrous, J.), entered April 11, 2003, denying its motion for summary judgment and granting defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover the sum of $2,157 in first-party no-fault benefits for medical supplies furnished to plaintiff’s assignor, defendant timely denied plaintiff’s claims upon the ground of lack of medical necessity, and based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs).

In addition to requesting an IME as a means of verification of a submitted proof of claim (see 11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5), an insurer has an independent right to [*2]request an IME prior to its receipt of a proof of claim, pursuant to the mandatory endorsement provision of the policy of insurance which, as set forth in 11 NYCRR 65.12 (e) (now 11 NYCRR 65-1.1 [d]), provides that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the company may reasonably require.” Furthermore, where the insurer has timely asserted in its claim denial form an injured person’s failure to comply with a reasonable and proper IME request made prior to the insurer’s receipt of plaintiff’s proof of claim, and raises said ground in support of, or in opposition to, a summary judgment motion, said assertion may operate to negate the presumption of medical necessity which otherwise attaches to plaintiff’s claim forms (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

In the instant case, upon the summary judgment motions, defendant stated that it mailed several IME requests to plaintiff’s assignor prior to its receipt of plaintiff’s proof of claim forms, and that she failed to attend the IMEs which were scheduled. Defendant’s proof of mailing was supported by the affidavits of a manager of defendant and of an employee of Crossland Medical Services (which schedules IMEs for defendant), and was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that the letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Having demonstrated that it made reasonable and proper IME requests and that plaintiff’s assignor failed to comply with such requests, 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 equipment supplied to plaintiff’s assignor (see Stephen Fogel Psychological, PC v Progressive Casualty Ins. Co., [decided herewith]). Inasmuch as plaintiff neither offered a valid excuse for its assignor’s nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue as to medical necessity was raised and thus, in addition to denying plaintiff’s motion for summary judgment, the court below should have denied defendant’s cross motion for summary judgment.
Aronin, J.P., and Patterson, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.,
As Assignee of ROSE DANIEL,
Appellant,

-against-

Golia, J., concurs in part and dissents in part and votes to affirm 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 Crossland Medical Services, 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 assignor’s 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, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

I note that defendant’s denial of claim form also asserted that the fees charged for the medical equipment were not “in accordance with fee schedules.” Had this issue been raised in the motion papers or on the appeal, I would have, where appropriate, entertained it, notwithstanding my concurrence in the decision of Amaze Med. Supply v Allstate Ins. Co. (3 Misc 3d 43 [2004]).
Decision Date: December 22, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 22, 2004

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for appellant. Baker & Barshay, LLP, Hauppauge (David M. Barshay of counsel), for respondent.

{**7 Misc 3d at 19} OPINION OF THE COURT

Memorandum.

Order modified by deleting the portion of the order which granted plaintiff summary judgment; as so modified, affirmed without costs.

In this action to recover $969.61 in assigned first-party no-fault benefits, defendant insurer denied plaintiff health provider’s claim on the ground that the eligible injured person failed to appear for independent medical examinations (IMEs) which defendant scheduled before plaintiff filed its statutory claim forms. Defendant moved for summary judgment contending that its proof of plaintiff’s assignor’s nonappearance established a defense to the action.

The insurance regulations provide for IMEs as part of an insurer’s entitlement to “additional verification” following the insurer’s receipt of a provider’s statutory claim forms in order to determine, inter alia, the medical necessity of the health benefits provided the injured person (11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [d]; see also 11 NYCRR 65.15 [g] [1], now 11 NYCRR 65-3.8 [a] [1] [IME “verification” deemed received “on the day the examination was performed”]). An insurer need not pay or deny a claim until demanded verification is [*2]provided (11 NYCRR 65.15 [g] [1] [i]; [2] [iii], now 11 NYCRR 65-3.8 [a] [1]; [b] [3]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Where an eligible injured person fails to comply with an insurer’s timely postclaim IME verification request, {**7 Misc 3d at 20}the insurer’s time to respond to the claim does not begin to run, which may entitle the insurer to dismissal of the action seeking no-fault benefits (Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004], supra; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004], supra; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; see also 11 NYCRR 65.15 [g] [2] [i], now 11 NYCRR 65-3.8 [b] [1]).

The first question presented is whether an insurer has a right to an IME following an oral or written notice of claim (11 NYCRR 65.15 [c] [1], [2], now 11 NYCRR 65-3.4 [a], [b]) and prior to the insurer’s receipt of the statutory claim forms or their functional equivalent (11 NYCRR 65.15 [d] [1], [5], now 11 NYCRR 65-3.5 [a], [f]), the event which, under the regulations, triggers the verification process (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). If such a right exists, we must determine the consequences, if any, of the injured person’s failure to attend an IME sought before any claim form has been submitted.

The insurance regulations provide, in the mandatory personal injury protection endorsement, which is independent of the verification protocols, that “[t]he eligible injured person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (11 NYCRR 65.12 [e], now 11 NYCRR 65-1.1 [d] [emphasis added]). In light of this broad language, and because this provision is included in the mandatory endorsement and not in the verification protocols, there appears to be no reason to preclude an insurer from requesting an IME prior to its receipt of the statutory claim form. This analysis is particularly reasonable given the fact that the insurer, upon receipt of an oral or written notice of claim, is under an obligation to commence the claim processing procedure (see 11 NYCRR 65.15 [b], [c] [1]-[2], now 11 NYCRR 65-3.3, 65-3.4 [a]-[b]). Accordingly, we conclude that an insurer is entitled to request an IME upon the receipt of a notice of claim, whether orally or in writing. This conclusion was implicit in Millennium Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003]) which also involved an IME sought before the submission of the statutory claim forms (see also Informal Op, NY State Ins Dept, Apr. 12, 2002). In so concluding, we recognize the importance of a timely held IME in the detection of fraudulent claims, the sharply rising incidence of which has drawn attention from law enforcement agencies and the courts{**7 Misc 3d at 21} (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 867 [2003]), and has stimulated significant revisions in the insurance regulations.

However, the right to an IME at this juncture is not afforded by the verification procedures and timetables (see 11 NYCRR 65.15 [d], [e], [g], now 11 NYCRR 65-3.5, 65-3.6, 65-3.8), because 11 NYCRR 65.12 (e) (now 11 NYCRR 65-1.1 [d]) is not, on its face or contextually, a “verification” provision, and because the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form (but see Bronx Med. Servs. v Windsor Ins. Co., 2003 NY Slip Op 50885[U] [App Term, 1st Dept 2003]). Such a rewriting of the regulations is a matter for the Legislature or the Insurance [*3]Department, and indeed, a comprehensive response to the Court of Appeals’ call for the enactment of “more synchronized provisions in the highly technical and regulated . . . no-fault universe[ ]” is awaited (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Having determined that the insurer has a right to request an IME prior to the submission of the claim form, we now turn to the second inquiry: What are the consequences of the injured person’s failure to attend an IME sought before the statutory claim form is submitted? As an insurer’s rights and/or remedies upon nonreceipt of matter sought pursuant to the postclaim verification procedures (11 NYCRR 65.15 [g], now 11 NYCRR 65-3.8; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 570) are inapplicable (but see Bronx Med. Servs. v Windsor Ins. Co., 2003 NY Slip Op 50885[U] [2003], supra), the consequences of an insured’s failure to attend a preclaim IME must be sought in the general principles of no-fault claims determinations.^[FN*] Generally, a plaintiff health provider’s proof of a properly submitted statutory claim form, or its substantial equivalent, establishes a prima facie case of medical necessity on a plaintiff’s motion for summary judgment (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A],{**7 Misc 3d at 22} 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; see also Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists 2003]). The burden then shifts to defendant who, if not precluded, may rebut the presumption and establish the lack of medical necessity by submitting proof, such as a detailed peer review report or the results of an IME, that the health benefits provided were not medically necessary (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [2003], supra; see also Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [2003], supra). However, when an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper preclaim 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. While not establishing the lack of medical necessity so as to warrant reverse summary judgment in its favor, such proof defeats the motion. As the courts disapprove of a movant seeking to submit proof for the first time in a reply paper (see Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]), a plaintiff should not be permitted to submit its independent proof of medical necessity for the first time at such juncture. Of course plaintiff, having been alerted to the insurer’s assertion of the eligible injured person’s failure to attend such IME in the claim denial form, may support its motion with proof of medical necessity (independent of the presumption of medical necessity that attaches to the claim form), or may explain the eligible injured person’s failure to attend the IME by offering a valid excuse for such nonappearance, or proof that, under the circumstances, the IME request was unreasonable and, thus, not authorized by 11 NYCRR 65.12 (now 11 NYCRR 65-1.1). In such case, plaintiff may [*4]be entitled to prevail on its summary judgment motion should defendant’s opposition papers otherwise fail to raise a triable issue of fact.

Where, as here, an insurer moves for summary judgment (or cross-moves for summary judgment) to dismiss the action on the sole ground that the eligible injured person failed to appear for an IME which was reasonably and properly requested prior to its receipt of any claim form (assuming such ground was preserved by having been previously asserted in the insurer’s denial of claim form), the insurer’s motion will not warrant a dismissal of the action, since such ground, as noted above, does not establish a lack of medical necessity. Rather, its effect is only a procedural one: it negates the presumption of medical necessity {**7 Misc 3d at 23}which otherwise attaches to plaintiff’s claim forms, thereby raising a triable issue as to the medical necessity of the health benefits provided (Millennium Med. Diagnostics v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003], supra). For plaintiff to ultimately prevail in its action, it must then independently establish medical necessity by admissible evidence at trial. Of course, plaintiff may successfully oppose such motion by the insurer and avoid the negation of the presumption of medical necessity which attaches in the first instance to its claim form by establishing in its opposition papers that the eligible injured person’s failure to attend the IME was excusable or that the request was unreasonable in light of all the surrounding circumstances existing at the time of the request.

Since, in the instant case, it was uncontroverted that the eligible injured person failed to comply with a preclaim form IME request, the reasonableness of which was not challenged, plaintiff should not have been granted summary judgment. However, defendant’s motion for summary judgment was properly denied inasmuch as questions of fact exist, including whether the benefits provided were medically necessary.

Golia, J., concurs in part and dissents in part, and votes to reverse the order and grant defendant’s motion for summary judgment in the following memorandum: We all agree that “plaintiff should not have been granted summary judgment.” I regret to say that is where we part company. I dissent as to the reasoning behind the majority’s holding and as to the refusal to grant judgment to the defendant dismissing the complaint.

A careful reading exposes the inaccuracies, misstatements and misunderstandings relied upon by the majority.

The majority presents a two-tiered question. The first question is, does an insurer have the right to demand an independent medical examination (IME) prior to receipt of a formal claim? If so, does the eligible injured person’s failure to attend an IME sought before any claim form has been submitted result in any consequences? My answer to both questions is “yes.”

The majority found that a demand for an IME is permitted pursuant to the mandatory personal injury protection endorsement, which is set forth in the insurance regulations as well as the contract of insurance, and is independent of the verification protocols which are only in the insurance regulations.

Having made the finding that the IME in question does not fall under the verification protocols, the majority then concludes that {**7 Misc 3d at 24}the failure to attend an IME does not carry any sanctions under the regulations. They do say, however, that it creates an issue of fact sufficient to overcome the presumption of medical necessity and to deny a motion for summary judgment by the eligible injured person or his assignee. Well, that is not the regulation.

Consequently, I disagree with that premise, and their conclusion. [*5]

To begin with, 11 NYCRR 65-1.1 (d) provides for the mandatory personal injury protection endorsement. The purpose of this regulation is to mandate the terms of the [*6]personal injury protection endorsement that is permitted in automobile insurance contracts in New York State.

Within that regulation is the subheading “Conditions,” which provides: “Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of the coverage.” (Emphasis added.)

Within that subheading is the following provision: “The eligible . . . person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.” (Id.; emphasis added.)

It is abundantly clear to me that if an eligible injured person fails to submit to an independent medical examination, as provided, then the eligible injured person or his assignee cannot prosecute an action against the company. To me this is a simple reading of the regulations. It is not confusing or complex.

There is also a section that is entitled “Claim Procedure” (11 NYCRR 65-3.5) which contains a detailed set of provisions for the filing of claims and for the verification procedure. This section also addresses the request for an IME, but only as the result of the eligible injured person or their assignee filing a demand for payment.

Although the majority makes it appear that a demand for an IME can be requested immediately upon receipt of a formal claim, in fact this is not so. A request for an IME is denominated as “additional verification” and can only be requested after a request for “verification” of a claim and the response thereto has been received.

Specifically, subdivision (a) of 11 NYCRR 65-3.5 provides that the insurer shall forward to the parties required to complete them {**7 Misc 3d at 25}the “prescribed verification forms” needed prior to payment. Subdivision (b) provides that subsequent to the receipt of the completed verification forms, “any additional verification” required may be requested. IMEs are, in fact, deemed to be “additional verification” (see 11 NYCRR 65-3.4 [c]).

While this is a highly technical and precise reading of the regulations, it is an example of the majority’s restrictive interpretations of the regulations.

While the holding of the majority results in a plenary trial on the issue of lack of medical necessity, the insurer will have no evidence to present on the issue of “medical necessity,” as the eligible injured person never appeared for the IME and consequently the company never examined that person. The eligible injured person would not be entitled to summary judgment but the insurer has no possibility to defend at trial. This, of course, ignores 11 NYCRR 65-1.1 (d) which provides that “[n]o action shall lie against the Company . . . .” [*7]

In my opinion, the mandatory personal injury protection endorsement conditions the right to commence an action against the insurer upon an eligible injured person’s compliance with the terms of coverage. Where an eligible injured person fails to submit to a reasonably requested IME, the insurance policy, by its terms, as provided by the insurance regulations, affords no coverage for the otherwise eligible injured person (see e.g. Orr v Continental Cas. Co., 205 AD2d 599 [1994] [breach of a condition precedent in an insurance contract permits the insurer to declare the contract terminated due to the breach]). In other words, the assertion by an insurer that the eligible injured person failed to comply with a reasonable request for an IME at the preclaim form stage, which was not opposed or adequately refuted, constitutes a complete defense to the claim warranting dismissal of the action (see e.g. St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]). Indeed, to hold, as does the majority, that the mandatory personal injury protection endorsement requires an eligible injured person to submit to a reasonably requested IME, but that the failure or refusal to submit to such an IME does not bar coverage under the insurance policy is inconsistent as noted earlier. Having determined that the mandatory personal injury protection endorsement obligates eligible injured persons to submit to reasonably requested IMEs, the majority offers no good reason for failing to give effect to the [*8]provision which expressly conditions coverage upon the eligible injured person submitting to a reasonably requested IME.{**7 Misc 3d at 26}

To the extent the majority suggests that its holding is governed by the Appellate Term’s opinion in Millennium Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists 2001], affd 306 AD2d 388 [2003]), I note that I was not a member of the panel which decided said case. Nor was I member of the panels which also decided the Park Health Ctr. v Liberty Mut. Ins. Co. (191 Misc 2d 91 [App Term, 2d & 11th Jud Dists 2001]) and Urban Med. Diagnostics v Liberty Mut. Ins. Co. (2001 NY Slip Op 40655[U] [App Term, 2d & 11th Jud Dists 2001]) cases which were decided the same day as the Millennium Med. Diagnostics case and which employed the same analysis. In said cases, those courts properly held that an insurer was entitled to an IME which was sought prior to the submission of claim forms; however, those courts then mistakenly failed in the aforementioned cases, as it also does in the instant case, to hold that the unexcused nonappearance of an eligible injured person for a reasonably requested preclaim stage IME bars coverage. In light of my analysis set forth herein and the rapid increase in the number of no-fault claims tainted by fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [2003]), it is my hope that the Appellate Division would reconsider the position it adopted in the Millennium Med. Diagnostics case and, in the future, award summary judgment to similarly situated insurers if there was no reasonable excuse for the eligible injured person’s failure to appear at a reasonably and properly requested preclaim stage IME.

Although the majority declares that the failure of an eligible injured person to appear for a reasonably requested IME shall have consequences, the consequences adopted by the majority fall far short of barring an action against the insurer. Rather, if an insurer satisfies its obligation to timely and properly deny a claim for payment, based upon, at a minimum, the nonattendance of the eligible injured person at a reasonably requested IME, and establishes such fact by presenting sufficient evidence upon a motion for summary judgment, the majority will merely deem the presumption of a prima facie case of medical necessity which flows from the eligible injured person’s presentation of properly completed claim forms (see 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]) to have been rebutted. As noted in the majority’s opinion, in such a situation, the eligible injured person, or his or her assignee, may only prevail if sufficient{**7 Misc 3d at 27} evidence is proffered to demonstrate that the health benefits provided to the eligible injured person, and for which payment is being sought, was medically necessary. As stated earlier, this would be impossible for the insurer to defend because there was no medical examination of the eligible injured person upon which to rely. [*9]

Notwithstanding the fact that it is becoming apparent to the courts, law enforcement agencies and the media that many people are engaged in fraudulent criminal activity so as to obtain money to which they are not entitled for treatment which was never rendered and that such activity adds to the costs borne by law abiding citizens (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 861; Jail Officers in Crash Scams, New York Post, Sept. 29, 2004; DA: Queens Clinics Filed $1 Million in Fake Claims, NYLJ, Sept. 23, 2004, at 4, col 5; DA: Queens Clinics Filed $1 Million in Fake Claims, Newsday, Sept. 23, 2004), the majority is willing to, in effect, overlook the failure or perhaps the refusal of an eligible injured person to submit to a reasonably requested IME. Under the majority’s position, however, an insurer will never be able to obtain summary judgment dismissing an action based solely upon the failure of an eligible injured person to submit to a reasonably requested IME. This is so notwithstanding the fact that the eligible injured person thwarts the insurer’s ability to establish a defense to the action, to wit, a lack of medical necessity which could be established through a medical examination conducted when such examination might yield the most pertinent information relevant to such issue at an earlier stage. Indeed, a medical examination conducted after submission of the claim form as additional verification (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [d]) often only occurs after the treatment is complete and the injury has been resolved.

In sum, while the “primary aims of [the no-fault] system were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 860), at least two of its three goals have not been achieved. Moreover, although the no-fault system contains relatively quick deadlines to ensure the prompt resolution of claims, in the instant case, the majority’s willingness to, in effect, overlook the failure or refusal of an eligible injured person to submit to a reasonably requested independent medical {**7 Misc 3d at 28}examination thwarts attempts by insurers to investigate claims faster and inhibits insurers’ efforts to ascertain whether the eligible injured person is genuinely injured or is a participant in a criminal scheme.

As a result, while I agree that plaintiff is not entitled to summary judgment, I would grant defendant’s motion for summary judgment dismissing the action.

Aronin, J.P., and Patterson, J., concur; Golia, J., concurs in part and dissents in part in a separate memorandum.

Footnotes

Footnote *: We are aware that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1 [d]) bars an action against an insurer “unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” However, we are of the opinion that this provision applies solely to an insured’s cooperation with the postclaim verification protocols with regard to IMEs.