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. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Recovery of no-fault benefits requires a proper proof of claim, i.e. the completed statutory form (11 NYCRR 65-3.3 [d]) or its functional equivalent (11 NYCRR 65-3.5 [a], [f]; S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]; cf. Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]), and an insured’s proof of a properly submitted claim generally suffices to establish its prima facie case in summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Here, however, plaintiffs inclusion of additional documents for the first time upon its motion for summary judgment, namely, a physician’s prescription for medical equipment, which did not match the equipment for which benefits were sought, and a receipt for medical equipment delivered to an insured other than its assignor, raised a triable factual issue, whether certain of the no-fault benefits sought were for equipment that was not part of the prescribed course of treatment or for equipment other than what the patient actually received (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).
Decision Date: February 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for entry of judgment in the principal sum of $410, the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny the claim within 30 days of receipt of the proof of claim, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]).

A review of the record indicates that plaintiff established its entitlement to summary judgment prima facie by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s sole ground both for its denial of plaintiff’s claim and opposing summary judgment was the assignor’s failure to appear for an examination under oath. However, the insurance regulations in effect when the claim was submitted, contained no provision requiring the injured person to submit to such an examination (see A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [*2][e], eff. April 5, 2002), an omission that cannot be remedied by reference to a policy provision requiring an insured’s “cooperation” with defendant’s investigation of a claim in the form of such an examination (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]). As defendant interposed no other proper defense to the claim, either pursuant to its claim denial or in opposition to the motion, summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: February 18, 2004

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, New York County, entered January 25, 2002 (Debra A. James, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered January 25, 2002 (Debra A. James, J.) modified to grant plaintiff’s motion for summary judgment on its no-fault insurance claim relating to the April 24, 2000 medical services rendered to its assignor, Smolyanskiy, and to remit the matter to Civil Court for the assessment of appropriate attorney’s fees and interest with respect thereto; as modified, order affirmed, without costs.

The action seeks recovery of motor vehicle no-fault benefits in the form of medical expenses allegedly incurred by plaintiff’s assignors. Plaintiff demonstrated entitlement to summary judgment on its claim for neurological testing administered to its assignor, Smolyanskiy, on April 24, 2000, since the record shows that defendant received plaintiff’s no-fault claim relating to those services no later than June 23, 2000, and did not deny the claim until [*2]July 31, 2000. Having failed to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8[c]) within 30 days of receipt, defendant waived any defenses relating to the adequacy of plaintiff’s claim forms, including the alleged absence of necessary signatures (see, Mount Sinai Hosp. v Figuerdov, 263 AD2d 11, 17 [1999]) or the medical necessity of the services rendered (see, Central Gen. Hosp. v Chubb Group, 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 306, lv denied 93 NY2d 809 [1999]).

Summary judgment is unwarranted, however, on the remaining no-fault claims alleged in the complaint. Contrary to plaintiff’s contention, the peer review reports relied upon by defendant in timely denying the remaining claims were a proper vehicle to assert the defense of lack of medical necessity (11 NYCRR 65-3.8[b][4]) and set forth sufficient facts to raise a triable issue with respect to that defense (see, S+M Supply, Inc. v Allstate Ins. Co., 2003 WL 21960336, decided July 9, 2003 [App Term, 2d Dept]).

This constitutes the decision and order of the court.

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 (A. Gazzara, J.), entered March 27, 2002, denying their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,559.39, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical treatment provided their assignor, plaintiffs moved for summary judgment. Defendant opposed and submitted nurses’ unsworn reviews of the files which concluded that the treatments were medically unnecessary. Defendant contends that said reviews sufficed to create a triable issue of medical necessity. Plaintiffs rejected the proof as inadequate. In our view, the medical reviews failed to create a triable issue of material fact as to the treatment’s medical necessity.

As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v Moore, 299 AD2d 949, 951 [2002]) whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v Proper, 270 AD2d 816, 817 [2000], affd 95 NY2d 597 [2001]; People v Russell, 165 AD2d 327, 332 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]). Even were we to find that based on [*2]their “formal training or long observation and actual experience” the reviewers were qualified to state an expert opinion on the relevant issues (People v Monroe, 307 AD2d 588, 591 [2003]), the nurses’ affidavits failed to set forth an account of their training or observations and experience sufficient to establish the admissibility of the medical opinions set forth therein. In any event, none of the reviews were sworn, and for this reason also, they “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]).

As to defendant’s remaining defense, that the benefits sought exceeded those permitted by Workers’ Compensation schedules (Insurance Law § 5108 [a]), we have held that by virtue of a timely claims denial an insurer is entitled to interpose the defense in opposition to a claimant’s motion for summary judgment (Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]; see Insurance Law § 5108 [c] [“(n)o provider of health services . . . may demand or request any payment in addition to the (authorized) charges”]; Goldberg v Corcoran, 153 AD2d 113, 119 [1989]; e.g. Murali v Upton, 175 Misc 2d 186, 187 [Civ Ct, NY County (1997)] [section 5108 (c) bars any no-fault claim exceeding “the legally permissible fee”]). Nevertheless, defendant failed to establish that any of the charges exceeded that permitted by law by evidentiary proof sufficient to create a triable issue of material fact.

Finally, summary judgment was properly denied as to the $54.74 claim. Plaintiffs did not allege the date defendant received the claim forms and failed to rebut defendant’s documentary proof that both its initial and follow-up verification requests, dated February 22, 2001 and March 24, 2001, were timely (11 NYCRR 65.15 [d] [1], [2]). Absent the requested verification, an insurer is under no obligation to act on a claim (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]), and without proof of their compliance with the verification requests, plaintiffs failed to prove prima facie a proper claim for no-fault benefits.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,559.39, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: February 10, 2004

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 (K. Yellen, J.), entered November 22, 2002, as denied their motion for summary judgment. Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $16,461.40 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

In this action to recover $19,425.89 in first-party no-fault benefits for medical treatment provided their assignor, plaintiffs sustained their burden to prove entitlement to no-fault benefits prima facie by submitting proof of the completed statutory forms setting forth “the fact and amount of loss” (Insurance Law § 5105 [a]; e.g. S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]), without the necessity of additional proof that the fact or extent of the treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Defendant’s failure to timely deny the claims (11 NYCRR 65.15 [g] [3]) waived objections based on the facial sufficiency of the claim forms (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]) and most defenses as to the propriety of the claim itself (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Defendant’s attempt to toll the commencement of the 30-day claim [*2]determination period by recourse to an examination of the assignor under oath failed because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (see 11 NYCRR 65.15 [d] [3]; 65.2 [a]; 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002). Defendant cannot base the right to such an examination in the policy provisions providing for “cooperation” because the no-fault endorsement, an “internally complete and distinct part of the insurance policy . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; e.g. Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

While objections based on allegedly fraudulent accident claims survive an insurer’s failure to timely deny such claims (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), in opposition to the summary judgment motion, defendant failed to allege facts, in admissible form and with the requisite particularity, to create triable issues of fraud (cf CPLR 3016 [b]); Small v Loriulard Tobacco Co., 94 NY2d 43, 57 [1999]; Matter of State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 490-491 [2003]); Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]). Insofar as defendant based its opposition to summary judgment on the claim that the extent of the treatment was medically unnecessary, as noted previously, defendant is precluded from interposing the defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

However, plaintiff A. B. Medical Services PLLC failed to prove submission of the completed statutory forms as to its physical therapy claim for $464.80. Absent either an allegation in plaintiffs’ affidavit as to whether the claim forms were mailed, or proof of when defendant received the claims via, e.g., defendant’s claim determination forms, the prima facie case also failed as to plaintiff Daniel Kim’s Acupuncture P.C.’s claim for $270.00; plaintiff A.B. Medical Services PLLC’s claims for $71.06 (October 25, 2000), $895.80, $532.42 (July 28, 2000), $249.96, and $76.06; and plaintiff D.A.V. Chiropractic P.C.’s claim for $404.40 (November 6, 2000).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $16,461.40, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]) and for all further proceedings on the remainder of the claims.
Decision Date: February 10, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Suffolk County (P. Barton, J.), entered March 22, 2002, denying its motion to compel responses to its discovery demands and granting plaintiffs cross motion for summary judgment in the principal sum of $1,571.80.

Order unanimously affirmed without costs and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault medical benefits for treatment rendered to its assignor, plaintiff cross-moved for summary judgment. For the reasons set forth in Damadian MRI in Elmhurst. P.C. v Liberty Mut. Ins. Co. (No. 2002-999 S C, [decided herewith]), plaintiffs proof of its claim as submitted to defendant sufficed to establish its prima facie case in summary judgment. Inasmuch as defendant, failed to timely deny plaintiffs no-fault claim within 30 days of receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8[c]), it is precluded from raising the defense of lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos. as., 90 NY2d 195, 199 [1997]).

Accordingly, plaintiffs cross motion was properly granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $1,571.80 (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995].
Decision Date: December 24, 2003

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. Schack, J.), entered October 7, 2002, denying its motion for summary judgment. Order unanimously modified by providing that plaintiffs motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,695, and matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

In this action to recover $1,895 in first-party no-fault benefits, for medical supplies furnished to its assignor, plaintiff moved for summary judgment. The motion papers establish that after plaintiff submitted its proof of claim, i.e., the completed statutory forms (11 NYCRR 65-3.3 [d]; 65-3.5 [a]), defendant denied the claim on the ground that the prescribed medical equipment was medically unnecessary. Defendant did not seek verification of the “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see 11 NYCRR 65-3.5 [a]) and its denial based on lack of medical necessity, although timely (11 NYCRR 65-3.8 [c]), was Conclusory, unsupported by a peer review or any other proof, such as an independent medical examination, setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection (e.g. Choicenet Chiropractic P.C. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]). Thus, having failed to issue a proper denial of benefits, fully and explicitly supporting its claim that the prescribed equipment was medically unnecessary, and having failed to set forth any other basis for denial of the claim within 30 days of the claims’ receipt, the denial is deemed ineffective and, accordingly, defendant is precluded, with certain [*2]exceptions not relevant here, from interposing a defense (11 NYCRR 65-3.8 [b] [4]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]; Liberty Queens Med. P.C. v Liberty Mut. Ins. Co., NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiffs motion for summary judgment, defendant challenged the equipment’s medical necessity via a physician’s affirmation, dated nine months after the claim’s denial, based on an examination of the insured’s treatment file. In addition, defendant argued that because no-fault compensation is available only for medically necessary health benefits (e.g. Insurance Law § 5102 [a] [1]), on summary judgment, plaintiff must establish medical necessity by proof in admissible form even if defendant is precluded from controverting said proof. Plaintiff contends that its properly completed claim form establishes its prima facie case for the recovery of no-fault benefits in summary judgment, and we agree.

In furtherance of the legislative mandate “to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]), the Insurance Department regulations provide that the “written notice [of claim] required by section 65-2.4. . . shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.3 [d]), that is, the approved claim forms or their functional equivalent (11 NYCRR 65-3.5 [g]). Because such submissions suffice to place the burden on the insurer to timely interpose its objections, with the requisite supporting allegations where necessary, or be precluded thereafter from asserting those objections or defenses, including the claim that the health benefits were medically unnecessary, the clear implication is that a properly completed claim form, which suffices on its face to establish the “particulars of the nature and extent of the injuries and [health benefits] received and contemplated” (11 NYCRR 65-1.1), and the “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), is all that is necessary at the claim stage to establish the health benefits’ medical necessity (Insurance Law § 5102 [a] [1]; see Dermatossian v New York City Tr. Auth., 67 NY2d at 224 [“to receive payment (a claimant) need only file a ‘proof of claim’ (which) the insurers are obliged to honor. . . promptly or suffer the statutory penalties”]).

While under the facts presented we are only called upon to decide whether a proper proof of claim establishes a prima facie case on a provider’s motion for summary judgment where the insurer is precluded from raising the defense of lack of medical necessity, courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim whether or not the defendant was precluded (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d at 614; Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]; see S & M Supply Inc. v Geico Ins., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists] [“(P)laintiff establishes its prima facie entitlement to summary judgment. . . by showing that it submitted a complete proof of claim”]; Choicenet Chiropractic P.C. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists] [“Plaintiff established a prima facie case (for summary judgment) by the submission of statutory forms for proof of claim and the amount of the loss.”]; Liberty Queens Med. P.C. v Liberty Mut. Ins. Co., NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists] [same]; Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. [*3]14, 2001 [App Term, 2d & 11th Jud Dists] [same]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists]; accord Vinings Spinal Diagnostic, P.C. v Liberty Mut. Ins. Co., 186 Misc 2d 287, 291 [Dist Ct, Nassau County 2000]). Indeed, to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims, many of which involve small sums for medical supplies, by imposing on the provider the unwarranted burden to obtain the necessary affidavits or other proof extrinsic to the forms to establish medical necessity. Thus, we reaffirm our holding that a provider’s proof of a properly-completed claim makes out a prima facie case upon its motion for summary judgment (e.g. Choicenet Chiropractic P.C. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]; Liberty Queens Med. P.C. v Liberty Mut. Ins. Co., NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists]; Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]) thereby shifting the burden to the insurer who, if not precluded, may rebut the inference by proof in admissible form establishing that the health benefits were not medically necessary (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment.

An examination of the record on appeal in a recent Appellate Division, Second Department case, St. Luke’s Roosevelt v American Transit Ins. Co., AD2d (2d Dept, Nov. 17, 2003), reveals that the plaintiff therein relied exclusively on proof of its properly-submitted claim forms to establish its case for summary judgment. In its papers in opposition to the motion and on appeal from the order granting the provider’s motion for summary judgment, the insurer contended, as in the instant case, that a claimant must prove that the medical services were “necessary” whether or not the insurer’s default at the claim stage precluded the defense: “[e]ven if the claims were not properly denied . . . [t]he Plaintiff must still prove a prima facie case that the hospital services were necessary.” On appeal, plaintiffs cited Dermatossian v New York City Tr. Auth. (67 NY2d 219) and Liberty Queens Med. P.C. v Liberty Mut. Ins. Co. (NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists]) for the proposition that the submission of the statutory forms setting forth the fact and amount of the loss establishes a prima facie case of entitlement to summary judgment. The Appellate Division affirmed the lower court’s order and held that “plaintiffs made a prima facie showing of entitlement to judgment as a matter law” (St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., — AD2d — [2d Dept, Nov. 17, 2003]; cf. Wagner v Baird, 208 AD2d 1087, 1088 [3d Dept 1994]).

Where, as here, the insurer is precluded from raising the defense of lack of medical necessity, the logic of the result reached in St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co. (AD2d [2d Dept, Nov. 17, 2003]) is even more compelling. A contrary rule would require a claimant to prove the health benefits’ medical necessity by evidence additional to the proof necessary to establish a proper claim, even when the insurer has waived the defense, thereby rewarding an insurer’s dilatory response to the claim in the first instance by imposing a greater burden of proof after the action is commenced than was necessary at the claim stage to require that the insurer act on the claim or be precluded from most defenses. Moreover, the situation may be analogized to an account stated where, upon the insurer’s failure timely and properly to deny the bill as embodied in the claim form, the insurer is presumed to have acquiesced to its correctness, thereby rendering the insurer liable thereon. Thus, when an action is commenced, the prima facie case is the unchallenged claim form. Indeed, the Court of Appeals has expressed its impatience with insurers “who sit on their many procedural rights and requirements and then [*4]belatedly deny claims they should have acted upon earlier” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285).

In light of the foregoing, the plaintiff would normally be entitled to the granting of its motion for summary judgment in its entirety. However, in addition to its claim forms, plaintiffs proof in support of its motion for summary judgment contained documents that had not accompanied the claim form, which revealed that the prescribed medical equipment did not include two items, a TENS belt ($78) and a TENS kit ($122), listed in the invoices of supplies delivered. While the waiver rules generally preclude defenses based on defects in the proof of claim if not timely asserted, plaintiff, having interjected an issue of fact which, if true, amounts to a complete defense to a portion of the claim, should be estopped from invoking waiver to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit. There is no proof that defendant knew or should have known of the discrepancy, and absent an explanation therefor, the non-prescribed equipment cannot be justified as a loss sustained.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $1,695, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: December 24, 2003

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Suffolk County (P. Barton, J.), entered on June 11, 2002, which granted plaintiffs motion for summary judgment in the principal sum of $879.73.

Order unanimously affirmed without costs.

In this action to recover $879.73 in first-party no-fault benefits, for medical services provided to its assignor, plaintiff moved for summary judgment. The motion papers establish that after plaintiff submitted its proof of claim, i.e., the completed statutory forms (11 NYCRR 65-3.3 [d]; 65-3.5 [a]), defendant failed to pay or deny the claim within 30 days of receipt of the requested verification (11 NYCRR 65-3.8 [a] [1]) and failed otherwise to set forth any other basis for denial of the claim within 30 days of receipt (Insurance Law § 5106; 11 NYCRR 65-3.8 [c]). Consequently, defendant is precluded, with certain exceptions not relevant here, from interposing a defense [11 NYCRR 65-3.8 [b] [4]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]).

In opposition to the motion for summary judgment, defendant challenged the treatment’s medical necessity, arguing that because no-fault compensation is available only for medically necessary treatment (e.g. Insurance Law § 5102 [a] [1]), on summary judgment, plaintiff must prove the treatment’s medical necessity by proof in admissible form even if defendant is precluded from controverting said proof. Plaintiff contends that its properly completed claim form establishes its prima facie case for the recovery of no-fault benefits in summary judgment, and we agree.

In furtherance of the legislative mandate “to encourage prompt payment of claims, to [*2]discourage investigation by insurers and to penalize delays” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]), the Insurance Department regulations provide that the “written notice [of claim] required by section 65-2.4. . . shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.3 [d]), that is, the approved claim forms or their functional equivalent (11 NYCRR 65-3.5 [g]). Because such submissions suffice to place the burden on the insurer to timely interpose its objections, with the requisite supporting allegations where necessary, or be precluded thereafter from asserting those objections or defenses, including the claim that the treatment was medically unnecessary, the clear implication is that a properly completed claim form, which suffices on its face to establish the “particulars of the nature and extent of the injuries and treatment received and contemplated” (11 NYCRR 65-1.1), and the “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), is all that is necessary at the claim stage to establish the treatment’s medical necessity (Insurance Law § 5102 [a] [1]; see Dermatossian v New York City Tr. Auth., 67 NY2d at 224 [“to receive payment (a claimant) need only file a ‘proof of claim’ (which ) the insurers are obliged to honor. . . promptly or suffer the statutory penalties”]).

While under the facts presented we are only called upon to decide whether a proper proof of claim establishes a prima facie case on a provider’s motion for summary judgment where the insurer is precluded from raising the defense of lack of medical necessity, courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim whether or not the defendant was precluded (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]; Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]; see S & M Supply Inc. v Geico Ins., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists] [“(P)laintiff establishes its prima facie entitlement to summary judgment. . . by showing that it submitted a complete proof of claim”]; Choicenet Chiropractic P.C. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists] [“Plaintiff established a prima facie case (for summary judgment) by the submission of statutory forms for proof of claim and the amount of the loss.”]; Liberty Queens Med. P.C. v Liberty Mut. Ins. Co., NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists] [same]; Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists] [same]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists]; accord Vinings Spinal Diagnostic, P.C. v Liberty Mut. Ins. Co., 186 Misc 2d 287, 291 [Dist Ct, Nassau County 2000]). Indeed, to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims, many of which involve small sums for medical supplies, by imposing on the provider the unwarranted burden to obtain the necessary affidavits or other proof extrinsic to the forms to establish medical necessity. Thus, we reaffirm our holding that a provider’s proof of a properly-completed claim makes out a prima facie case upon its motion for summary judgment (Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists]) thereby shifting the burden to the insurer who, if not precluded, may rebut the inference by proof in admissible form establishing that the health benefits were not medically necessary (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment.

An examination of the record on appeal in a recent Appellate Division, Second Department case, St. Luke’s Roosevelt v American Transit Ins. Co., AD2d (2d Dept, Nov. 17, 2003), reveals that the plaintiff therein relied exclusively on proof of its properly-submitted claim [*3]forms to establish its case for summary judgment. In its papers in opposition to the motion and on appeal from the order granting the provider’s motion for summary judgment, the insurer contended, as in the instant case, that a claimant must prove that the medical services were “necessary” whether or not the insurer was precluded from asserting the defense: “[e]ven if the claims were not properly denied. . . [t]he Plaintiff must still prove a prima facie case that the hospital services were necessary.” On appeal, plaintiffs cited Dermatossian v New York City Tr. Auth. (67 NY2d 219) and Liberty Queens Med. P.C. v Liberty Mut. Ins. Co. (NYLJ, Nov. 4, 2002 [App Term, 2d & 11th Jud Dists]) for the proposition that the submission of the statutory forms setting forth the fact and amount of the loss establishes a prima facie case of entitlement to summary judgment. The Appellate Division affirmed the lower court’s order and held that “plaintiffs made a prima facie showing of entitlement to judgment as a matter law” (St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., — AD2d — [2d Dept, Nov. 17, 2003]; cf. Wagner v Baird, 208 AD2d 1087, 1088 [3d Dept 1994]).

Where, as here, the insurer is precluded from raising the defense of lack of medical necessity, the logic of the result reached in St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co. (— AD2d — [2d Dept, Nov. 17, 2003]) is even more compelling. A contrary rule would require a claimant to prove the health benefits’ medical necessity by evidence additional to the proof necessary to establish a proper claim, even when the insurer has waived the defense, thereby rewarding an insurer’s dilatory response to the claim in the first instance by imposing a greater burden of proof after the action is commenced than was necessary at the claim stage to require that the insurer act on the claim or be precluded from most defenses. Moreover, the situation may be analogized to an account stated where, upon the insurer’s failure timely and properly to deny the bill as embodied in the claim form, the insurer is presumed to have acquiesced to its correctness, thereby rendering the insurer liable thereon. Thus, when an action is commenced, the prima facie case is the unchallenged claim form. Indeed, the Court of Appeals has expressed its impatience with insurers “who sit on their many procedural rights and requirements and then belatedly deny claims they should have acted upon earlier” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285).

In light of the foregoing, plaintiff has established its entitlement to summary judgment as a matter of law. Accordingly, plaintiff’s motion is granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $879.73 (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: December 24, 2003

[*1]

Supreme Court, Appellate Term, Second Department, December 24, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

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

Memorandum.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $10,635.26, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision therein; as so modified, affirmed without costs.

Plaintiffs commenced this action to recover $10,805.26 in assigned first-party no-fault benefits, plus interest and attorney’s fees, pursuant to Insurance Law § 5101 for medical services rendered to their assignor for injuries she sustained in a motor vehicle accident. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion which was denied by order of the court below entered September 26, 2002.

A review of the record indicates that with the exception of one of two $170 claims filed on behalf of Daniel Kim’s Acupuncture P.C., plaintiffs established their entitlement to summary judgment for the recovery of no-fault benefits prima facie by proof that they submitted to defendant the completed claim form (Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2003 NY Slip Op 51700[U] [decided herewith]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]; accord S & M Supply v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists]; see Dermatossian v New York City Tr. Auth., 67 NY2d [*2]219, 225 [1986]). The burden then shifted to defendant to demonstrate a triable issue whether plaintiffs are entitled to all or any portion of the benefits sought (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

While we agree that the preclusion rule does not apply to a defense based on a claim that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]), defendant’s sole proof of the matter, in the form of an affidavit of its investigator, failed to raise a triable issue of fraud. Here, the report, which was unsworn, alleged, essentially, only that the “uncooperative”{**3 Misc 3d at 10} insured (but not the assignor) had been involved in prior accidents alleged to be “suspicious,” and as to the assignor, recommended merely that the payment of benefits be deferred pending further investigation. Such unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of the assignor’s fraud, and partial summary judgment should have been granted as to the properly proven claims (see Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]). However, the court properly denied summary judgment as to one claim for $170, proof of which was omitted from the motion papers.

We note, finally, that while plaintiff concededly failed to respond to defendant’s several requests for verification in the form of an examination of the assignor under oath, not only did defendant fail to prove that the requests were timely (11 NYCRR 65-3.5 [a]), but such requests would not have tolled the 30-day claim determination period because at the time plaintiffs filed the instant claims there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.12 [d], with 11 NYCRR 65-3.5 [e] [eff Apr. 5, 2002]; A.B. Med. Servs. v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Bronx Med. Servs. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022[U] [App Term, 1st Dept]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $10,635.26, the portion of the claims for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]) and for all further proceedings on the remaining claim.

Doyle, P.J., Winick and Skelos, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by State Farm Mutual Automobile Insurance Company from an order of the Civil Court, Queens County (Agate, J.), entered January 31, 2003, denying its petition to vacate the arbitrator’s awards.

Order unanimously affirmed without costs.

Upon a review of the record, we find that, with regard to the compulsory arbitration of its no-fault claim, State Farm Mutual Automobile Insurance Company (State Farm) has failed to establish that the arbitrator’s award was not based on the evidence and was arbitrary and capricious (see Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [19961). In regard to its uninsured motorist claim, State Farm also has not established that the arbitrator “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]). Consequently, State Farm’s petition to vacate the awards was properly denied. Furthermore, inasmuch as Travelers Insurance Company has not cross-appealed with respect to its cross petition to confirm the awards, this court will not address said issue on appeal.

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