[*1]

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

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz, P.C., White Plains (James G. Eberz of counsel), for appellant. Baker & Barshay LLP, Hauppauge (Gil McLean of counsel), for respondent.

{**8 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, reversed without costs and defendant’s motion to dismiss the complaint granted.

Plaintiff medical provider commenced this action to recover first-party no-fault benefits in the sum of $4,126.89 for medical services rendered to plaintiff’s assignor for injuries she allegedly sustained in an automobile accident which occurred in the Bronx on December 7, 2001. Plaintiff’s assignor was a passenger in a U-Haul vehicle insured by defendant, an Arizona corporation. Service of the summons and complaint was made on the New York State Department of Insurance. An answer was interposed denying the allegations of the complaint which asserted that defendant was licensed and authorized to do business in the State of New York and that it transacted business in{**8 Misc 3d at 35} the City of New York, and which included an affirmative defense that the court lacked jurisdiction over defendant. In support of a subsequent motion to dismiss for lack of jurisdiction, based on CCA 404 (a), defendant’s New York claims manager submitted an affidavit in which he averred that [*2]defendant was an Arizona corporation which neither wrote nor sold insurance in the State of New York, nor had any agent in the State of New York, that defendant was the sole insurer for U-Haul, Inc., an Arizona corporation, and that the policy was written and sold in Arizona. Defendant had a claims office in Westchester County. He further stated that defendant did not write, sell or solicit any insurance policies to any entities within New York City, did not provide goods or services within New York City, and did not transact business in New York City.

In its opposition papers, plaintiff’s counsel argued that “upon information and belief,” defendant actively engaged in the solicitation of business and the writing of insurance policies to residents of New York City, which activities constituted the transaction of business as well as the contracting to supply goods and services in New York City. Documentation purported to be in support of its argument consisted of various police accident reports from other accidents where U-Haul vehicles were involved as well as several no-fault denial of claim forms where the “policy holder” was identified as defendant.

After the return date of the motion, the court requested that the parties send to it additional documentation which included the police report pertaining to the instant accident, the addresses of the assignee and its assignor, registration information for the U-Haul vehicle at issue, a copy of the insurance policy between defendant and U-Haul’s parent company, Amerco, the insurance identification card for the U-Haul vehicle, and a copy of the U-Haul rental contract with a computerized printout regarding the lease transaction between U-Haul and the lessee. These materials showed that both plaintiff’s assignor and the lessee were Bronx residents and that the accident occurred in the Bronx. U-Haul Co. of Arizona was listed in the police report as the registered owner of the vehicle. A business automobile insurance policy had been issued by defendant, an Arizona corporation, to its named insured, Amerco, also an Arizona corporation, indicating that there was a New York specific endorsement providing no-fault coverage. The Arizona automobile insurance card for the vehicle showed that defendant was its insurer and that the insured was “Amerco et al, including{**8 Misc 3d at 36} U-Haul.” The U-Haul rental contract stated that its customers were insured by a business auto policy providing the minimal limits of the state where the accident occurred.

In its decision and order denying the motion to dismiss, the court below made numerous findings of fact based not upon the submissions of counsel but rather upon its own Internet research. Among those findings, from defendant’s own Web site, were that defendant was a wholly owned subsidiary of Amerco, whose other major subsidiaries included, inter alia, U-Haul, and that defendant was a “full service insurance company” which specialized, in part, in vehicular liability, operated in 49 states, and received approximately $170 million in premiums annually. From U-Haul’s Web site, the court found, among other things, that U-Haul was the largest consumer truck and trailer rental operation in the world, and operated in all 50 states, that there were at least nine Queens U-Haul facilities, and that U-Haul promoted career opportunities for defendant, its sibling corporation. Finally, the court found, by going to the Web site of the New York State Department of Insurance, that, contrary to counsel’s denial, defendant had been “licensed to do insurance business” in this state since April of 1980.

The court below did not make a specific finding as to whether defendant, under CCA 404 (a) (1), either in person or through an agent “transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New [*3]York.” Instead, it based its decision to deny the motion to dismiss on the policy considerations behind sections 1212 and 1213 of the Insurance Law, as well as the No-Fault Law.

In our opinion, the court below erred in denying defendant’s motion to dismiss.

Generally, where a defendant moves to dismiss an action on jurisdictional grounds, and where such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained. So long as plaintiff has made a discernible showing that some basis for jurisdiction exists, the court in which the action has been brought has the power to determine whether it has jurisdiction. Whenever a plaintiff makes a “sufficient start,” i.e., a nonfrivolous showing that facts pertinent to an acceptable basis for jurisdiction may exist, a plaintiff is entitled to jurisdictional discovery, and thus need not make a prima facie showing of jurisdiction at the prediscovery stage (see Weinstein-Korn-Miller, NY Civ Prac ¶ 301.07; see also Peterson v Spartan Indus., 33 NY2d 463{**8 Misc 3d at 37} [1974]). Indeed, CPLR 3211 (d) permits a court to deny a motion to dismiss made under CPLR 3211 (a) or to order a continuance to enable a plaintiff to secure additional proof or to conduct further discovery, where “facts essential to justify opposition may exist” but are not available to it.

By serving process on the Superintendent of Insurance, plaintiff was aware that it was basing jurisdiction over defendant by virtue of either section 1212 or section 1213 of the Insurance Law, both of which provide that such service is deemed to have been made “within the territorial jurisdiction of any court in this state” (Insurance Law § 1212 [b]; § 1213 [b] [2]). Indeed, in its complaint, plaintiff alleged that defendant was “licensed and authorized to do business in the State of New York,” thereby implicitly alleging jurisdiction under Insurance Law § 1212. In addition, the complaint alleged that defendant “transacts business in the City of New York,” apparently claiming, in the alternative, that jurisdiction could be based on Insurance Law § 1213.

In opposition to defendant’s motion, plaintiff alleged that it needed to conduct jurisdictional discovery in order to obtain information about defendant’s sale and underwriting of insurance policies to New York City residents in order to establish that defendant did in fact transact business and contract to sell goods and services within the City of New York. It thereby implicitly abandoned its claim of jurisdiction based upon defendant’s status as an authorized insurer, since it could have demonstrated that status without the benefit of discovery, i.e., by submitting a certified document from the New York State Department of Insurance attesting to the fact that defendant was an authorized insurer. It chose not to do so, and instead proceeded to address the alternative jurisdictional basis of “transacting business” under Insurance Law § 1213. In order to demonstrate that “facts essential to justify opposition [to the motion to dismiss] may exist” (CPLR 3211 [d]), plaintiff needed to make more than conclusory allegations, and needed to submit some tangible evidence to substantiate its allegations that defendant, while unauthorized to do business, was either issuing or delivering insurance contracts to state residents or corporations authorized to do business in the state (Insurance Law § 1213 [b] [1] [A]) or was engaged in “any other transaction of business” (Insurance Law § 1213 [b] [1] [D]) and that the cause of action arose out of that transaction of business (see Farm Family Mut. Ins. Co. v Nass, [*4]126 Misc 2d 329 [1984], affd 121{**8 Misc 3d at 38} AD2d 498 [1986]). Plaintiff did not do so and thus did not make the “sufficient start” necessary to warrant further discovery (see e.g. Mandel v Busch Entertainment Corp., 215 AD2d 455 [1995]; see also Granat v Bochner, 268 AD2d 365 [2000]; Bissinger v DiBella, 141 AD2d 595 [1988]; Schumacher v Sea Craft Indus., 101 AD2d 707 [1984]). Accordingly, plaintiff’s complaint should have been dismissed at that juncture, and it was error for the court below not to have done so.

This error was further exacerbated by the court’s conduct in initiating its own investigation into the facts when, based upon the insufficient submissions of plaintiff, the court should have dismissed the complaint. In conducting its own independent factual research, the court improperly went outside the record in order to arrive at its conclusions, and deprived the parties an opportunity to respond to its factual findings. In effect, it usurped the role of counsel and went beyond its judicial mandate of impartiality. Even assuming the court was taking judicial notice of the facts, there was no showing that the Web sites consulted were of undisputed reliability, and the parties had no opportunity to be heard as to the propriety of taking judicial notice in the particular instance (see Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]).

We note that defendant moved for reargument of the subject motion, and the court below, in a subsequent decision/order dated April 12, 2004, and officially reported at 3 Misc 3d 925 (2004), in effect, granted reargument and, upon reargument, adhered to its original determination. We have not reviewed that decision/order pursuant to CPLR 5517 (b) because defendant did not include in the record on appeal the motion papers upon which the decision/order was based (see Matter of Donato v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 286 AD2d 388 [2001]; Matter of Merendino v Herman, 15 AD2d 818 [1962]). However, in light of the fact that the subsequent decision/order adhered to the original determination set forth in the order appealed from, which has now been reversed, to the extent that the decision/order of April 12, 2004 supports a result contrary to the result herein, it should not be followed.

Pesce, P.J., dissents and votes to affirm the order in the following memorandum: In my opinion, the motion court’s use of the Web site of the New York State Department of Insurance in order to verify that defendant insurer was in fact licensed to do{**8 Misc 3d at 39} business in the State of New York was proper. Accordingly, the court did not err in denying defendant’s motion to dismiss based upon lack of jurisdiction.

Although New York cases do not clearly define the procedure for taking judicial notice of facts, in practice, sometimes judicial notice is taken at the request of a party, and sometimes it is taken sua sponte (see Prince, Richardson on Evidence § 2-202 [Farrell 11th ed]). Courts frequently take judicial notice of matters which, at a given moment, may be personally unknown to them. In such cases, recourse may be had to “such documents, references and other repositories of information as are worthy of belief and confidence” even in the absence of a specific request of a party (id. [internal quotation marks omitted]; see also People v Langlois, 122 Misc 2d 1018 [1984]). The use of reference works such as calendars, dictionaries and encyclopedias has been found to be acceptable (see Fisch, New York Evidence § 1068 [2d ed]).

Moreover, it is well settled that a court may take judicial notice of matters of public record or other “reliable documents, the existence and accuracy of which are not disputed” (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989] [certificate of dissolution of corporation issued by Secretary of State]; Associated Gen. Contrs. of Am., N.Y. State Ch. v Lapardo Bros. Excavating Contrs., 43 Misc 2d 825, 826 [1964] [“indisputable public records of the Secretary of State” showed that plaintiff was a domestic membership corporation]) and of data culled from those public records (see Matter of Siwek v Mahoney, 39 NY2d 159 [1976]; see also Russian Socialist Federated Soviet Govt. v Cibrario, 198 App Div 869 [1921], affd 235 NY 255 [1923] [in action brought by plaintiff in its alleged capacity of a sovereign state, said allegation was not conclusive upon the court, and it was appropriate for the court to call upon the State Department of the United States for information regarding the question of our recognition of that foreign government]).

Thus, in my opinion, it was a proper exercise of discretion for the court below to have sua sponte referred to a matter of public record, in order to ascertain the fact of defendant’s status as an insurer. There is no logical reason not to include within the category of public records such records when they are available from reliable sources on the Internet (see e.g., Glorius v Siegel, 5 Misc 3d 1015[A], 2004 NY Slip Op 51378[U] [Civ Ct, NY County 2004] [court verified multiple dwelling registration of premises on Web site of Department of Housing Preservation{**8 Misc 3d at 40} and Development]; see also Samson Moving & Stor. Corp. v Drake Bus. School, 2000 NY Slip Op 40023[U] [Civ Ct, NY County 2000] [court verified defendant’s corporate status by referring to Web site of Department of State’s Division of Corporations]). The Web site of the New York State Department of Insurance provides an insurer search list of “our licensed, regulated companies,” and, in an opinion letter, recommends its Web site in order to find a “directory of licensed insurers” (see Ops Gen Counsel NY Ins Dept No. 03-10-25). That same opinion letter indicates that the term “authorized insurer” includes an insurer that is licensed to do the business of insurance in New York State. The defendant insurer, “Republic Western Insurance [*5]Company,” is included in the directory of licensed insurers.

Defendant was authorized to do insurance business in New York State by virtue of its having been issued a license to do such business. The question of whether defendant was an authorized insurer was important in determining whether there was jurisdiction over it. Insurance Law § 1212 (a) provides that an insurer authorized to do business in the state must appoint the Superintendent of Insurance as its agent for service of process “in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in the state.” Inasmuch as the cause of action in the instant case clearly arose in New York, and since defendant was, according to the records of the New York State Department of Insurance, authorized to do business in New York, service of process upon the Superintendent of Insurance was proper, and constituted valid service within the territorial jurisdiction of the Civil Court of the City of New York (Insurance Law § 1212 [b]), sufficient to confer personal jurisdiction over defendant.

Aronin and Patterson, JJ., concur; Pesce, P.J., dissents in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied 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 assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a 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]; see 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11NYCRR 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 was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The affidavit submitted by defendant’s investigator supported by the examination under oath of plaintiff’s assignor was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do [] not rise out of an insured incident” (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, since defendant [*2]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 577 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered January 6, 2004, denying their motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for services rendered to their assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted a claim, setting forth the fact and the amount of the loss [*2]
sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [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]).

Nevertheless, 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 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 [*3]
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.
Decision Date: December 15, 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 (P. Sweeney, J.), entered January 13, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,737 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff established a prima facie case of entitlement to summary judgment by the submission of complete proofs of claims setting forth the fact and the amount of the loss sustained, and that payment was overdue (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Plaintiff’s claims in the amount of $1,737 were not denied until more than 30 days after they were submitted (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]), the insurer was precluded from raising most defenses including lack of medical necessity. Accordingly, plaintiff’s motion for summary judgment should have been granted.

We find respondent’s contention concerning the timeliness of the appeal to be without merit.
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 2, 2004, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover $2,190 in first-party no-fault benefits for medical supplies it provided to its assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment, which motion was denied.

Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d
128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Consequently, the burden shifted to defendant to raise a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])

It is uncontroverted that defendant’s May 2002 denial was untimely. The court below correctly noted that defendant was not thereby precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed 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]), thus raising an issue of fact warranting denial of plaintiff’s motion for summary judgment (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 [*2]Misc 3d 139[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists]).
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Prus, J.), entered February 18, 2004, denying their motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted a claim, setting forth the fact and the amount of the loss [*2]
sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [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]).

Nevertheless, 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 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 [*3]
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.

Decision Date: December 14, 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 (L. Baily-Schiffman, J.), entered January 6, 2004, denying its motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see [*2]
Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742
[2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [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 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 [*3]
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.
Decision Date: December 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 10, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. McDonald, Carroll, Cohen & Rayhill, New York City (Thomas J. Reilly of counsel), for respondent.

{**6 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover assigned no-fault benefits, plaintiffs submitted the affidavit of David Safir, wherein he states that he is the “practice and medical billing manager of plaintiff.” The affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. v Allstate Ins. Co., 3 Misc 3d 129[A], 2004 NY Slip Op 50373[U] [App Term, 2d & 11th Jud Dists 2004]). Accordingly, plaintiffs failed to establish a prima facie entitlement to no-fault benefits and their motion for summary judgment was properly denied.

We note that the trial 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 form. The insurance regulations, however, do not require that a claimant’s signature be authenticated. Pursuant to the insurance regulations, a health care provider is only required to submit to the insurer a “properly executed assignment” on (1) the [*2]prescribed verification of treatment by the attending physician or other provider of service form (NYS form NF-3), or (2) the prescribed verification of hospital treatment form (NYS form NF-4), or the prescribed hospital facility form (NYS form NF-5), or (3) the prescribed no-fault assignment of benefits form (NYS form NF-AOB) (11 NYCRR 65-3.11 [b] [2]). A health care provider thus satisfies its burden by proof of submission of an assignment to the insurer that conforms to the regulations.

We further observe that defendant’s failure to seek verification of the assignment, or to allege any deficiency in the assignment in its denial of claim form, constitutes a waiver of any defenses with respect thereto (see 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]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., {**6 Misc 3d at 72}6 Misc 3d 68 [2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists 2001]).

Pesce, P.J., Aronin and Patterson, 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 (R. Garson, J.), entered June 10, 2003, which granted defendant’s motion to vacate an order granting plaintiff’s motion for summary judgment on default and which restored the matter to the motion calendar for a determination of plaintiff’s underlying motion on the merits.

Order unanimously reversed without costs, defendant’s motion to vacate the order granting plaintiff’s motion for summary judgment denied, and judgment reinstated.

In this action to recover assigned first-party no-fault benefits, after the court awarded plaintiff summary judgment upon defendant’s default, defendant was obligated to establish both a reasonable excuse for its default and a meritorious defense (CPLR 5015 [a] [1]; Parker v City of New York, 272 AD2d 310 [2000]). The insurer’s only defense, that each assignor failed to appear for a scheduled independent medical examination (IME), is without merit and the motion to vacate should have been denied.

Within days of each assignor’s failure to appear for an IME scheduled subsequent to defendant’s receipt of plaintiff’s proofs of claim, defendant denied the assignee’s claims. However, an assignor’s failure to attend a single requested IME does not afford an insurer a valid basis to deny a no-fault claim where the insurer failed to exhaust the follow-up verification [*2]protocols, which required, inter alia, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested [with a new request]” (11 NYCRR 65.15 [e] [2] [now 15 days,11 NYCRR 65-3.5 (b)]; S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists] [defendant’s rejection of the claim, “before plaintiff’s time to produce the verification had expired, on the ground that it had not received same” was premature and ineffective]; see also 11 NYCRR 65.15 [g] [2] [iii] [“an insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . .”]; New York Hosp. Med. Ctr. of Queens v County-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996]; Glassman D.C., P.C. v State Farm Mut. Auto. Ins. Co., 192 Misc 2d 264, 265 [App Term, 2d & 11th Jud Dists 2002]). As the denials otherwise interposed no substantive defense to the action, and its time to pay or deny the claims having expired (Insurance Law § 5106 [a]), defendant is precluded from interposing defenses with exceptions herein inapplicable (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [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]). Accordingly, defendant’s motion should have been denied on the ground that it has failed to establish a meritorious defense warranting the vacatur of the order granted on default.
Decision Date: December 08, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 8, 2004

APPEARANCES OF COUNSEL

June D. Reiter, Garden City, for appellant. Amos Weinberg, Great Neck, for respondent.

{**6 Misc 3d at 63} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignor by the submission of proof that the statutory claim forms had been mailed and received, and that defendant did not 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 2003]). In opposition to plaintiff’s motion for summary judgment, defendant has failed to raise a triable issue of fact.

Defendant’s denial of benefits form indicates that defendant received plaintiff’s claim on October 5, 2001, and that it did not deny the claim until December 19, 2001, which was beyond [*2]the statutorily prescribed 30-day period (see 11 NYCRR 65.15 [g] [3]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Although the 30-day statutory period may be extended by a verification request (11 NYCRR 65.15 [d] [1], [2]), there was no proof submitted in admissible form that the alleged verification requests were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists 2004]).

Despite the untimely denial of plaintiff’s claim, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident, which was the sole ground for defendant’s denial of no-fault benefits (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 affidavit of defendant’s claims representative, however, was insufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Moreover, the unsworn “Automotive Engineering Report,” attached thereto, did not constitute competent proof in admissible form (see Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists 2003]), and defendant failed to proffer {**6 Misc 3d at 64}an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). Accordingly, since defendant failed to raise any triable issue of fact, plaintiff’s motion for summary judgment was properly granted.

Golia, J., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum: Plaintiff (health care provider) moved for summary judgment and made out a prima facie showing of entitlement thereto upon alleging that it filed a claim for payment of no-fault benefits which was received by the carrier on October 5, 2001, and that a denial was not issued until December 19, 2001. Since the denial was well past the 30 days, the plaintiff asserts that any denial is ineffective pursuant to 11 NYCRR 65.15 (g) (3) (see also Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Plaintiff further asserted that although the 30-day period may be extended by a request for verification pursuant to 11 NYCRR 65.15 (d) (1) and (2), no such requests were made in the case at bar.

Although I am not in full agreement with those assertions, my dissent is grounded firmly in the findings of the Court of Appeals in the matter of Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and followed by Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

The Court of Appeals clearly and unequivocally stated that if the alleged injuries were not causally related to the accident, the strict 30-day time limit (11 NYCRR 65.15 [g] [3]) for filing a denial would not apply. That Court wisely reasoned that the no-fault regulations could not be used to mandate that an automobile insurance policy be used to pay for alleged injuries that did not arise from the automobile accident claimed.

It is evident to me that the defendant’s denial of the claim sufficiently raised that issue. Furthermore, contrary to the holding of the majority, I find that the papers submitted in opposition to the plaintiff’s motion for summary judgment were also sufficient to raise that issue of fact.

The instant case involves a minor accident between a large chartered bus in which the respondent was a passenger and a 1999 Ford Taurus, a mid-sized passenger automobile. Indeed the only damage to the bus was a one-inch crack in the front bumper which did not even warrant any repair. The passenger car suffered a shattered rear windshield and a buckled rear tailgate. {**6 Misc 3d at 65}There has been no reported injuries of any kind from the occupants of the passenger car. The tour guide on the bus stated that all the occupants of the bus fully participated in the recreational events of the day. Indeed the police report did not note any injuries by any occupants of either the bus or the passenger car. The insurance carrier engaged the services of an automotive engineering expert who investigated the accident and determined that the plaintiff could not have suffered the injuries complained of.

Under all the facts and circumstances, it is abundantly clear that there is an issue of fact as to whether the injuries alleged resulted from the accident claimed.

In support of their opinion the majority relies solely on the fact that the “Automotive Engineering Report” was unsworn and therefore did not constitute competent proof in admissible form. The majority argues that the failure to submit a sworn affidavit or a valid reason for failing to do so is fatal to this position.

However, I find that such unsworn report is sufficient for the purpose of raising a triable issue of fact. There is a long line of cases from the Court of Appeals and lower courts that [*3]support the proposition, that for the purpose of defending a summary judgment motion, statements that may be subject to objections should not be precluded from consideration by the court if they are otherwise relevant and competent (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Narvaez v NYRAC, 290 AD2d 400 [2002]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641 [1998]; Guzman v Strab Constr. Corp., 228 AD2d 645 [1996]).

This is especially true, as it is here, where the witness who prepared the unsworn “Automotive Engineering Report” is presumably available to testify (Levbarg v City of New York, 282 AD2d 239, 241 [2001]).

Accordingly, I would reverse the holding of the lower court and would deny the plaintiff’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur; Golia, J., dissents in a separate memorandum.