Civil Court of the City of New York, Kings County

323338/03

Sylvia Hinds-Radix, J.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, pursuant to Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiffs moved for summary judgment on their claims in the amount of $14,628.06, on the ground that defendant failed to pay or to deny their claims within the statutory 30-day period as required by Insurance Law section 5106 [a] ( Amaze Med. Supply Inc.v. Eagle Ins. Co., NYLJ, Dec. 29, 2003, at 21 Col 1 [App Term, 2d &11th Jud Dists]).

1. SUMMARY JUDGMENT STANDARD

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law, tending admissible evidence to eliminate any material issues of fact from the case ( Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Torterello v. Carlin, 260 AD2d 201 [1st Dept. 1999]). The burden of production as well as the burden of persuasion always rests on the proponent of the motion (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).

If the moving party satisfies those standards, the burden shifts to the opponent to rebut [*2]that prima facie showing by presenting evidence in admissible form establishing the existence of triable issues of fact ( see, CPLR 3212, subd [b]; Zuckerman v. City of New York, 49, NY2d 557 [1980]; Davenport v. County of Nassau, 279, AD2d 497 [2001]; Pragano v. Kingsburg, 182 AD2d 270 [2nd Dept.1992]; Kaufman v. Silver, 90 NY2d 204, 208 [1997]). It is well settled that Summary judgment should be denied if there is any doubt as to the existence of a triable issue of fact ( Freese v. Schwartz, 203 AD2d 513 [2nd Dept. 1984]).

When deciding a motion for summary judgment, the court must review the evidence in the light most favorable to the non-moving party, and must give that party all of the reasonable inferences that can be drawn from the evidence ( Louniakov v. M.R.O.R. Realty Corp., 282 AD2d 657 [2nd Dept. 2001]; SSBSS Realty Corp. v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-585 [1st Dept. 1998]).

11. COVERAGE OF MEDICAL EXPENSES PURSUANT TO INSURANCE LAW 5106 (a)

Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, within (30) thirty days after a claimant submits proof of the facts and the amount of loss sustained, an insurer is required to either pay or deny a claim for insurance coverage of medical expenses arising from a motor vehicle accident (see, 11 NYCRR § 65.15 (g) (3); Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195, 200 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11, 16 [2nd Dept. 1999]; New York Med. Center of Queens v. Country-Wide Ins. Co., 295 AD2d 583 [2nd Dept. 2002]).

The 30 day period may be extended by a request for verification pursuant to 11NYCRR

65.15 (d) (1) (2). (See, New York Hosp. Med. Ctr. of Queens v. Country Wide Ins. Co., 295 AD2d 584 [2nd Dept. 2002]; Presbyterian Hosp. In the City New York v. Maryland Cas. Co., 90 NY2d 279 [1997]).

If the requested verification has not been supplied to the insurer within 30 calendar days, after the original request, the insurer shall issue a follow-up request within 10 calendar days of the insured failure to respond. See, 11 NYCRR 65.15 (e) (2), now 15 days 11NYCRR 65-3.5 (b). S&M Supply v. Allstate Insurance Co., 2003 NY SLIP Op 51191 [U] [App Term, 2d & 11thJud Dists]. “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. Country-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Glassman D.C., PC v. State Farm Mut. Auto. Ins. Co., 192 Misc2d 264, 265 [App Term, 2nd & 11 Jud Dists. 2002]).

If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms (see, 11 NYCRR 65.15 [d] [3]).

The only exception to the 30 day rule is where a carrier’s untimely denial is based upon the defense of lack of coverage, or a medical condition for which the patient was treated was not “related to the accident” (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). To withstand a motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish “the fact” or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). [*3]

Failure to pay or deny a claim within the 30- day period requirement, absent a request for additional verification, renders benefits “overdue,” and precludes the insurer from disclaiming liability based on a breach of a policy condition or a statutory exclusion defense (St. Clare’s Hosp. v. Allicity Ins. Co., 201 AD2d 720 [2nd Dept. 1994]). All overdue payments bear interest at a rate of 2% per month, and the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue (see, Insurance Law 5106 (a); Presbyterian Hosp. in the City of New York v. Maryland Cas. Co., 90 NY2d 274 [1997]).

III. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

In support of its motion for summary judgment in this action, plaintiffs submitted the affidavit of David Safir, who states in his affidavit that he is the billing manager for the plaintiffs. Mr. Safir avers that he personally mailed all of the claim forms for no-fault medical services to the defendant, and defendant failed to pay or deny the claims within thirty days of receipt of the claims.

A review of plaintiffs’ motion papers indicates that plaintiffs established their prima facie entitlement to judgment by submitting proof that the statutory claim forms were mailed and received, and that defendant did not pay or deny the claims within the prescribed statutory 30-day period (Amaze Med. Supply Inc., v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2004]). The burden then shifted to the defendant to demonstrate the existence of a triable issue of fact requiring a trial on the action ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; St. Luke’s Roosevelt Hosp., v. American Tr. Ins. Co., 274 AD2d 511 [2nd Dept. 2000]).

IV. DEFENDANT’S OPPOSITION

Defendant, in its opposition to plaintiffs’ motion, admits to receipt of plaintiffs’ claims but contends that it denied the claims based on multiple grounds of (1) failure of plaintiffs’ assignor to appear for Scheduled Independent Medical Examinations (2) fees for medical supplies purchased were excessive as per the Workers’ Compensation Schedule (3) injury causation and (4) medical necessity.

(a) Failure to Appear for Scheduled Independent Medical Examinations

Defendant alleges that plaintiffs’ assignor violated a policy condition of the insurance policy by failing to appear for scheduled independent medical examinations (IMEs), thus precluding any recovery of benefits thereunder. In support of its allegation, defendant relies on the affidavit of Dan Ross, an employee of Alliance Health Medical, P.C., which is an outside entity that provides services for the defendant.

Mr. Ross states in his affidavit that his review of the file, and records pertinent to plaintiffs’ assignor, revealed that, defendant forwarded IME scheduling letters dated June 10, 2003 to plaintiffs’ assignor, requesting her to attend IMEs scheduled for June 26, 2003, and June 30, 2003. Mr. Ross further states that on July 2, 2003, Alliance Health Medical notified the defendant, that plaintiffs’ assignor failed to appear for the scheduled IMEs. In its opposition papers, defendant attached two copies of IME letters addressed to plaintiffs’ assignor, requesting the assignor to attend IME’s scheduled for June 26, 2003 and June 30, 2003. The letters were each dated June 10, 2003.

This court finds that defendant fail to comply with the follow-up procedures and timetable for verification set out in the governing regulations of 11NYCRR 65-3.5 (b), by [*4]following up with an additional request for verification, or by notifying plaintiffs’ assignor of her right to follow up procedures and timetable for verifications ( S&M Supply v. Allstate Insurance Co., 2003 NY SLIP Op 51191 [U] [App Term, 2d & 11thJud Dists]; Presbyterian Hosp. in the City of New York v. Aetna Cas,. & Sur. Co., 233 AD2d 432; Metro Med. Diagnostics v. Lumbermens Ins. Co., 189 Misc2d 597 (2001) [App Term 2d and 11th Jud Dists]).

Furthermore, no probative evidence was submitted by the defendant to establish that the IME letters were ever sent to plaintiff’s assignor. Mr. Ross states that a review of the file and records reveal that defendant forwarded IME request letters to plaintiff’s assignor, without averring that he mailed the request himself. He did not state in his affidavit that he had personal knowledge that the letters were mailed to plaintiffs’ assignor ( Rue v Stokes, 191 AD2d 245 [1993]; LI First Aid Medical Supply Inc., v. Progressive Cas Inc. Co., 196 Misc2d 258, nor has he created a presumption of mailing by relying on defendant’s business records or by describing the standard office practice or procedure used by the defendant to ensure that its requests are properly mailed ( see, CPLR section 4518 (a); Residential Holding Corp., v. Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept. 2001]).

By submitting copies of letters addressed to plaintiffs’ assignor without an affidavit from someone with first hand knowledge attesting how, when, or by whom the letters were mailed, does not in itself support a presumption that the letters were mailed, and received by plaintiffs’ assignor ( American Home Assur. Co., v. Choudary, 255 AD2d 346 [2nd Dept. 1998]; Residential Holding Co., v. Scottsdale Ins Co., 286 AD2d 679, 680 [2nd Dept. 2001]; Presbyterian Hosp. in the City of New York , v. Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept. 1996]). Consequently, the affidavit of Mr. Ross was insufficient to raise a triable issue of fact as to whether the requests for independent medical examinations were timely sent to plaintiffs’ assignor.

(b) Fees for Medical Supplies Excessive as per the Workers’ Compensation Law Fee Schedule

The defendant alleges that the fees sought by plaintiffs for medical supplies purchased for their assignor, exceeded those permitted by Workers’ Compensation Law Fee Schedule. It is well settled that, based on a timely denial, an insurer is entitled to interpose the defense that certain charges were not in conformity with the charges permissible under the workers’ compensation fee schedule (Park Health Ctr., v. Prudential Prop & Cas Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]). Insurance regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1), provides:

“For medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.

This section provides essentially a fee schedule for equipment provided by a medical provider or a medical equipment supplier. In the Instant action, defendant failed to submit evidentiary proof

to establish that the benefits sought for medical supplies were not in conformity with the charges permissible under the workers compensation fee schedule law (Kings Medical Supply v. Travelers Property Casualty Corp., 756 NYS2d 385 [2003]; Abraham v. County Wide Ins. Co., [*5]NYLJ, Feb. 2, 2004 [App Term, 2d &11th Jud Dists]).

Furthermore, since defendant failed to timely deny plaintiffs claim or to seek additional verification of the claims within thirty days of it receipt of the claims, defendant is precluded from raising the defense of excessive fees in its opposition to plaintiffs’ motion for summary judgment (Mt. Sinai v. Triboro Coach, 263 AD2d 11 [2nd Dept. 1999]).

( c) Injury Causation

Defendant argues that there is no casual relationship between the accident and the injury alleged by plaintiffs’ assignor. To support its argument, defendant submitted an unsworn low impact “Automotive Engineering Report”. Defendant argues that the low impact analysis “Automotive Engineering report” concluded that plaintiffs assignor’s treatment was not related to the accident.

Although, defendant is not precluded from asserting the defense that the alleged injuries were not casually related to the accident despite an untimely denial of the claims (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11, 16 [2nd Dept. 1999]), this court finds that the unsworn “Automotive Engineering Report” lacks evidentiary value and does not constitute competent proof in admissible form, and cannot be considered in opposition to plaintiffs’ motion for summary judgment (Dotez v. Allstate Ins. Co., [App Term, 9th & 10th Jud Dists.]). Additionally, defendant failed to present a sworn statement from someone with knowledge of the facts or with appropriate expertise to render an opinion (Mt. Sinai Hospital v. Triboro Coach Inc., 263 AD2d 11 [2nd Dept. 1999]).

(d) Medical Necessity

Defendant remaining argument is that the medical treatments rendered to plaintiffs’ assignor were not medically necessary. Lack of medical necessity is a valid defense to an action to recover no fault benefits if stated in a timely denial (Presbyterian Hosp. in the City of New York v. Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept. 1996]; Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). Since defendant failed to raise the defense of medical necessity within 30 days of receipt of the plaintiffs’ claims, defendant is precluded from interposing this defense to the motion for summary judgment (New York Presbyterian Hosp., v. Empire Ins., 286, AD2d 322 [2nd Dept. 2001]). Despite the use of a multiple defenses, the defendant cannot prevail if the defenses are not raised within the statutory prescribed period.

V. CONCLUSION

Accordingly, plaintiffs’ motion for summary judgment is hereby granted in its entirety. Judgment shall be entered in favor of plaintiffs in the amount of $14,628.06, together with appropriate statutory interest and attorneys’ fees.

The court did not consider defendant’s amended affirmation in opposition in rendering its decision and order, since the amended papers were not timely served upon the plaintiffs.

This constitutes the decision and order of this court.

Dated: November 10, 2004.

Brooklyn, New York

______________________________ [*6]

SYLVIA HINDS-RADIX

J.C.C.

Civil Court of the City of New York, Kings County

317285/03

Eileen N. Nadelson, J.

This action was brought under the Regulations of the New York State Insurance Department, 11 NYCRR sec. 65-1.1 et seq., to recover first party benefits under New York’s No-Fault Insurance Law.

The two assignments that form the basis of this action involve two persons who were allegedly injured in the same motor vehicle accident. Plaintiff medical provider submitted a bill for the first assignor, Jimmy Cadet (Cadet) on March 7, 2003. This claim was denied on May 15, 2003, based on the assignor’s failure to establish proof of the claim pursuant to his Examination Under Oath (EUO). Plaintiff submitted a bill for the second assignor, Naika Gousse (Gousse) on March 4, 2003; this claim was denied on May 15, 2003, because the assignor failed to appear for her EUO.

Plaintiff has moved for summary judgment, asserting that the denials of benefits were not received within the statutorily mandated 30 days after receipt of the claims, 11 NYCRR sec. 65-3.5, 65-3.8(a).

The EUO upon which the denial of claim for Cadet was based was unsigned by the [*2]assignor and not notarized. While objections based on allegedly fraudulent accident claims survive an insurer’s failure to timely deny such claim, Cf. Central General Hospital v. Chubb Group of Ins. Cos., 90 NY2d 195, 659 N.Y.S. 2d 246 (1997), and thereby toll the 30-day statutory period, when opposing a motion for summary judgment, the defendant insurer must be able to raise triable issues of fact in admissible form. Bonetti v. Integron Nat. Ins. Co., 269 AD2d 413, 703 N.Y.S. 2d 217 (2d Dept. 2000). The EUO submitted by Defendant insurer in the instant action is not in a legally admissible form, being unsigned and unverified. Consequently, the court holds that unsigned and unverified Examinations Under Oath are insufficient to raise triable issues of fact so as to defeat a motion for summary judgment.

Section 65-3.5 of 11 NYCCR, the regulations promulgated pursuant to New York’s No Fault Law, states:

(A) Within 10 business days after receipt of the completed application for motor

vehicle no-fault benefits, the insurer shall forward to the parties required to

complete them, those prescribed verification forms it will require prior to pay-

ment of the initial claim.

(B) Subsequent to the receipt of one or more of the completed verification forms,

any additional verification shall be requested within 15 business days of receipt

of the prescribed verification forms.

In the instant case, an EUO was requested of Gousse within the ten business days after the claim was submitted, and it is uncontroverted that she did not appear on the scheduled date. However, the Regulations impose a burden on the insurer to follow-up with an additional request if the initial request for verification was incomplete or not complied with at all. In this instance, the insurer did not follow the procedures of 11 NYCRR sec. 65-3.5(B) in seeking a second date for the EUO when Gousse failed to attend the first scheduled examination. Therefore, the 30-day statutory period was not tolled because Defendant insurer failed to adhere to the provisions of the No-Fault Regulations by not attempting to schedule a second EUO.

Based on the foregoing, the court grants Plaintiff’s motion for summary judgment. Judgment for Plaintiff in the amount of $4460 plus statutory 2% per month interest and statutory 20 % attorney’s fees.

Dated: October 27, 2004

__________________________

EILEEN N. NADELSON, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, October 19, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for plaintiff. Jaffe & Nohaicki, New York City, for defendant.

{**5 Misc 3d at 768} OPINION OF THE COURT

Ann Elizabeth O’Shea, J.

This is an action to recover first-party no-fault benefits, attorney’s fees and costs pursuant to New York’s Insurance Law and no-fault regulations. The cause of action allegedly arose out of an automobile accident on June 24, 2002, in which Robert Nieves, plaintiff’s assignor, was injured. Plaintiff, a medical equipment supplier, allegedly provided Mr. Nieves with medical supplies for which it submitted a claim for $705 to defendant insurer. Defendant denied plaintiff’s claim on the ground that the supplies were not medically necessary. Plaintiff now moves for summary judgment, arguing that defendant’s denial was untimely and without any evidentiary support. Defendant, in opposition, asserts that plaintiff has not established its prima facie entitlement to summary judgment with admissible evidence, including evidence as to the documented cost of the supplies provided. For the following reasons, plaintiff’s motion is granted in all respects.

Under the No-Fault Insurance Law and regulations, a medical equipment supplier must submit a properly completed proof of claim^[FN1] to the insurer within 180 days after the supplies have [*2]been provided under the “old regulations” in effect prior to April 4, 2002 (11 NYCRR 65.12) or 45 days after the supplies have been provided under the “new regulations” in effect on April 4, 2002 and thereafter (11 NYCRR 65-1.1 [h]). The insurer then has 30 days from the date the claim is received to pay or deny the claim under both the old and new regulations (11 NYCRR 65.15 [g] [1] [i]; 65-3.8 [a] [1]). If the insurer has any objections to or questions about the claim, including, among other things, the necessity for the supplies provided, the amount of the claim, or the adequacy of the claim form,^[FN2] it may request that the claimant provide further information to verify the claim (11 NYCRR 65.15 [d] [1] [old regulations]; 11 NYCRR 65-3.5 [b] [new regulations]; see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *2 [App Term, 2d Dept 2003] [“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 . . {**5 Misc 3d at 769}. and the proof of the fact and amount of the loss sustained . . . is all that is necessary at the claim stage . . .” (internal quotation marks and citations omitted)]; see also Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986] [“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” (citations omitted)]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept 2003]). A request for verification must be made by the insurer within 10 business days after the claim has been received under the old regulations (11 NYCRR 65.15 [d] [1]) and within 15 business days under the new regulations (11 NYCRR 65-3.5 [b]). The 30-day clock in which to pay or deny the claim is then stopped until the requested information is provided by the claimant (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002]). An insurer who fails to pay or deny the claim—or seek verification of the particulars of the claim—within the applicable time periods is thereafter precluded from raising any defenses to the claim, other than lack of coverage or fraud (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; Central Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]). The Court of Appeals has explained the principles and policies that prompted the adoption of this comprehensive regulatory scheme for the resolution of no-fault claims:

“[T]he primary purpose underlying the No-Fault Law [is] to assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them . . . To implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations . . . are written 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] [citations omitted].)

Those principles and policies have also informed court decisions limiting the proof required by medical providers and the defenses available to insurers on motions for summary judgment{**5 Misc 3d at 770} and at trial. To establish a prima facie case, a plaintiff medical supplier must submit proof that it timely transmitted its claim for no-fault benefits, that the defendant insurer received the claim but failed to pay or validly deny the claim within the permissible 30 days or to request verification within the applicable 10 or 15 business days after it received the claim (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *2 [App Term, 2d Dept 2003] [“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”]; see also Ocean Diagnostic Imaging PC v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 2d Dept 2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d Dept 2003]). Once the plaintiff has established its prima facie case, the burden shifts to the defendant to come forward with admissible evidence refuting plaintiff’s evidence and demonstrating the existence of a material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

In support of its motion for summary judgment, plaintiff submitted a copy of its NF-3 proof of claim form, accompanied by an affidavit of its billing manager attesting on personal knowledge to the issuance of the claim, and a copy of defendant’s denial form (NF-10), indicating defendant received the claim on August 28, 2002, and denied it on November 21, 2002.^[FN3] In this case, the NF-10 denial form, which is admissible as an admission by defendant, is sufficient to establish plaintiff’s prima facie entitlement to summary judgment, i.e., that the claim was transmitted, that defendant received it, and that defendant failed to pay or deny the claim within 30 days of receipt^[FN4] (see A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc {**5 Misc 3d at 771}3d 136[A], 2004 NY Slip Op 50507[U] [2d Dept 2004]). Nothing more is required.^[FN5] [*3]

Defendant offers nothing in response to plaintiff’s motion other than a generic attorney’s affirmation in opposition and a generic memorandum of law with little but a passing connection to the claims in issue here. In any event, construing defendant’s opposition in the most favorable light possible, defendant fails to overcome plaintiff’s prima facie case for several reasons.

First, the denial is untimely, and, therefore, defendant is precluded from asserting any defense other than fraud or lack of coverage (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]).

Second, the stated reason for the denial in defendant’s NF-10 is that “an extended delay between the motor vehicle accident and the beginning of treatment suggest not medically necessary and raises issue of casualty [sic].” It is by now firmly established that the burden is on the insurer to prove that the medical services or supplies in question were medically unnecessary (see, e.g., A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003], and cases cited therein). In addition, a denial premised on lack of medical necessity must be supported by evidence such as an independent medical examination, peer review, or examination under oath “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701, *1 [App Term, 2d Dept 2003]; see also Rockaway Blvd. Med. P.C. v Travelers Prop. Cas. Corp., 2003 NY Slip Op 50842[U] [App Term, 2d & 11th Dists 2003]; see also 11 NYCRR 65-3.8 [b] [4]; Choicenet Chiropractic P.C. v Travelers Prop. Cas. Corp., 2003 NY Slip Op 50697[U] [App Term, 2d & 11th Jud Dists 2003]; Rockaway Blvd. Med. P.C. v Allstate Ins. Co., 2003 NY Slip Op 50681[U] [App Term, 2d & 11th Jud Dists 2003]). {**5 Misc 3d at 772}Defendant’s conclusory, unsupported statement in its denial form is wholly inadequate to defeat plaintiff’s motion for summary judgment.

Finally, to the extent defendant’s defense to the summary judgment motion is that plaintiff did not document the cost of the supplies provided as part of its claim, the defense is without merit. It is true that, under the regulations, no-fault benefits available for medical supplies are limited to 150% of their “documented cost” (see 11 NYCRR Appendix 17-C, part E [b] [1]). However, in this court’s view, “documented cost” is not an element of plaintiff’s prima facie case. As is the case with issues of medical necessity, any questions about the amount claimed for medical supplies can and should be asked through a request for verification and, if possible, resolved at the claim stage, not by a court on a motion for summary judgment or at trial. Defendant had the opportunity to ask plaintiff to document the costs of the supplies when it received the claim. Because defendant failed to do so within the time permitted by the regulations, defendant is precluded from raising it now as a defense to plaintiff’s summary judgment motion.^[FN6] [*4]

For the foregoing reasons, plaintiff’s motion is granted in all respects. Judgment shall be entered in favor of plaintiff for $705 plus statutory interest and attorney’s fees plus costs.

Footnotes

Footnote 1: Or “substantially equivalent written notice” (11 NYCRR 65-3.5 [a]).

Footnote 2: For example, lack of authentication or other defect in the assignment of benefits (see, e.g., Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U]; but see A.B. Med. Servs. PLLC v Highlands Ins. Co., NYLJ, May 27, 2003, at 21, col 3 [Civ Ct, NY County]).

Footnote 3: Also annexed to the moving papers is a copy of an unsworn “Letter of Medical Necessity” concerning the assignor. This document is not considered by the court as it is not in admissible form.

Footnote 4: The court notes that the mailing log, date stamped by the Postal Service, also submitted in support of plaintiff’s motion, standing alone without any accompanying affidavit made on personal knowledge that the proof of claim was transmitted in accordance with plaintiff’s regular business procedures, would not be sufficient, for summary judgment purposes, to establish that the claim was transmitted to defendant.

Footnote 5: The additional documents submitted by plaintiff—a receipt for medical equipment and an assignment of benefits form signed by the assignor; a prescription for the medical equipment; invoices from Collona Distributors, Inc.; a copy of a cancelled check to Collona Distributors, Inc. for the full amount of the invoices—were not required as part of plaintiff’s prima facie burden of proof on its summary judgment motion, although they may have been instructive as a response to a timely request for verification of the claim by defendant.

Footnote 6: To the extent this decision is at odds with King’s Med. Supply v Travelers Prop. Cas. Corp. (194 Misc 2d 667 [Civ Ct, Kings County 2003]), which was decided before the development of the Appellate Term case law, this court respectfully declines to follow it.

Civil Court of the City of New York, Kings County

41116/2004

Peter P. Sweeney, J.

In this action pursuant to Insurance Law § 5101 et seq to recover first-party no-fault benefits, plaintiff moves to strike defendant’s seventh, eighth and tenth affirmative defenses on the ground that they were not pleaded with the specificity required by CPLR 3016(b). For the reasons stated below, the motion is denied in part and granted in part.

Factual Background

Plaintiff Carepluss Medical Supply Inc. a/a/o Edme Aenor commenced this action by the service of a summons and complaint, alleging that the defendant State Farm Mutual Automobile Insurance Company wrongfully denied a claim for first-party no-fault benefits. The claim was in [*2]the amount of $757.00 for medical supplies provided to its assignor Edme Aenor in connection with injuries arising out of a September 2, 2002 motor vehicle accident. In its denial dated April 9, 2003, the defendant acknowledged receipt of the clain on December 4, 2002 and denied the claim solely on the ground that Mr. Aenor failed to appear for two scheduled examinations under oath.

In its answer, defendant denied all the material allegations alleged in plaintiff’s complaint and asserted twelve affirmative defenses. Defendant’s seventh, eighth and tenth affirmative defenses provide as follows:

SEVENTH: That Plaintiff has engaged in fraudulent conduct in connection with the operation of its business and the submission of the claim to State Farm by intentionally paying substantially more for the items at issue for which reimbursement is sought, than the price that is readily available in the relevant marketplace, with the intent to deceive State Farm, and to inflate the charges that were submitted to State Farm.

EIGHTH: That Plaintiff has fraudulently and materially misrepresented to State Farm that the cost that was incurred and upon which the charges for the items at issue were based, were necessary and/or required costs, when In fact, the Plaintiff intentionally paid more for the items at issue than the price that is readily available in the relevant marketplace, with the intent to deceive State Farm and to inflate the charges that were submitted to State Farm.

TENTH: That the medical supplies fo which reimbursement is sought were not related to the accident in question and/or were never actually provided.

Plaintiff maintains that since these defenses are premised upon allegations of fraud and misrepresentation, they must be dismissed because they were not pleaded with the specificity required by CPLR 3016(b), which in pertinent part, provides: “[w]here a * * * defense is based upon misrepresentation [or] fraud * * * the circumstances constituting the wrong shall be stated in detail.”

Discussion

Plaintiff’s motion is granted, but only to the extent that defendant’s seventh and eighth affirmative defenses and that portion of defendant’s tenth affirmative defense alleging that “the medical supplies fo which reimbursement is sought were * * * were never actually provided” are stricken. These defenses are being stricken, not because of defendant’s non-compliance with CPLR 3016(b), but because defendant’s admitted failure to pay or reject the claims within 30 days of receipt precluded it from raising them (see Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274; Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195).

In the court’s view, the defendant complied with CPLR 3016(b) which “requires only that [*3]the misconduct complained of be set forth in sufficient detail to clearly inform a [plaintiff] with respect to the incidents complained of and is not to be interpreted so strictly as to prevent an otherwise valid cause of action in situations where it may be ‘impossible to state in detail the circumstances constituting a fraud'” (Lanzi v. Brooks, 43 NY2d 778, 780, quoting Jered Contr. Corp. v. New York City Tr. Auth., 22 NY2d 187, 194). Defendant’s seventh, eighth and tenth affirmative defenses pass muster under this analysis, especially since the facts and circumstances underlying these defenses are most likely within the exclusive knowledge of the plaintiff. It would seem to be impossible for the defendant to be any more specific at this stage of the proceedings.

The court is cognizant that in some instances, a defense premised upon fraud may be asserted even when a denial is issued beyond the 30 day period set forth in Insurance law § 5106[a]. Such instances, however, are limited to situations were the fraud, if proven, would establish that there was no coverage at all for the claim (Central General Hosp., 90 NY2d at 199). Thus, where a fraud defense is premised upon allegations that the collision underlying the claim was a staged event in furtherance of an insurance fraud scheme, the defense survives an untimely denial since a fabricated accident does not trigger coverage under the no-fault endorsement (see e.g. Mount Sinai Hospital v. Triboro Coach Inc ., 263 AD2d 11,19, citing Central General Hospital, supra ., Inwood Hill Medical P.C. v. Allstate Insurance Company, 2004 WL 1381082).

On the other hand, where fraud defenses are premised upon allegations of excessive or fraudulent billing, as is the case here, the defenses do not survive an untimely denial since the defenses, even if established, would not result in a finding that there was ” no coverage at all” for the claim (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 2004 WL 1431320, 2, citing Central Gen. Hosp., 90 NY2d at 199, 659 NYS2d 246, 681 NE2d 413; Presbyterian Hosp. in City of NY, 90 NY2d at 285).

Finally, plaintiff has not established a basis for striking that portion of defendant’s tenth affirmative defense which alleges that “the medical supplies for which reimbursement is sought were not related to the accident.” Even where there is an untimely denial, an insurer may raise a lack of coverage defense “premised on the fact or founded belief that an alleged injury does not arise out of an insured incident.” (Central General Hospital , 90 NY2d at 199). Such a defense does not necessarily have to be premised upon fraud and may be raised in situations where the insurer is claiming that the injuries at issue arose out of an uninsured accident (see e.g. Central General Hosp. , supra [allegation that injuries arose out of a separate work-related accident and not a motor vehicle accident]. In such circumstances, the specificity requirements of CPLR 3016(b) do not apply.

This constitutes the decision and order of the court.

Dated: September 29, 2004

_____________________________

PETER P. SWEENEY [*4]

Civil Court Judge

[*1]

Civil Court of the City of New York, Kings County, September 24, 2004

APPEARANCES OF COUNSEL

Amos Weinberg for plaintiff. Melli, Guerin & Melli (Matthew J. Smith of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

Plaintiff, a medical provider that is seeking first-party benefits pursuant to New York’s No-Fault Insurance Law, has moved for summary judgment based on defendant insurer’s failure to pay or deny plaintiff’s claim within the statutory 30-day period following submission of said claim.

Defendant is opposing the motion for summary judgment by asserting that it is not subject to the provisions of 11 NYCRR 65-3.4 because plaintiff’s assignor, the person allegedly injured in the motor vehicle accident, failed to submit to several requests for an examination under oath (EUO), and that the loss is not a covered loss because the accident was staged, thereby rendering plaintiff’s assignor a noneligible party pursuant to New York’s No-Fault Regulation 68 (11 NYCRR part 65).

In reply to defendant’s opposition to this motion, plaintiff avers that the basis for denial [*2]stemming from its assignor’s failure to submit to EUOs is inapplicable because the statute authorizing such basis did not go into effect until after the incident in question. Further, plaintiff maintains that any accusation of fraud with respect to the claim made by defendant has been made against the other individuals involved in the incident but not against its assignor.

The basic facts are not in dispute. The insurance policy in question was issued by defendant on March 3, 2002. The alleged accident occurred on March 20, 2002. Plaintiff’s claim was received by defendant on May 16, 2002. After submission of the claim defendant requested an examination under oath of plaintiff’s assignor. Plaintiff’s assignor failed to appear and a second EUO was scheduled, which she also did not attend. On December 13, 2002, defendant issued its denial of benefits to plaintiff.

The regulation that forms the basis of this motion, Regulation 68-A, 11 NYCRR 65-1.1, was enacted in September of 2001. The regulation applies to all new and first renewal insurance policies effective on or after September 1, 2001. (11 NYCRR 65-1.1 [b] [1], [2].) The effective date of the regulation is April 5, 2002. The import of this regulation to the case at bar is that it is the operative legislative authority for an insurer to deny first-party benefits to medical providers whose assignors fail to attend EUOs.

Plaintiff’s argument rests on the fact that the effective date of the regulation is subsequent to the date of the alleged accident and injury, and therefore is inoperative to the instant action. In support of this contention, plaintiff relies on Bronx Med. Servs., P.C. v Lumbermans Mut. Cas. Co. (2003 NY Slip Op 51022[U], *3 [App Term, 1st Dept 2003]), which states that “[t]he revised regulations cannot be applied retroactively to cover plaintiff’s September 2000 no-fault claim.” However, the facts in this cited decision are clearly distinguishable from the case at bar.

In Bronx Med. Servs., the insurer was basing its denial on a provision of the issued insurance policy in question. The court stated that “[t]he no-fault protection created by statute and implementing regulations cannot be qualified by the inapplicable conditions and exclusions of the liability portion of the policy.” (At *3 [internal quotation marks omitted], quoting Utica Mut. Ins. Co. v Timms, 293 AD2d 669 [2002].) In other words, the statute would prevail over a contrary provision in a private contract of insurance. Because the regulation in question was not enacted until after the subject accident, the court found the plaintiff’s reasoning specious that the change in the regulation should give effect to its insurance policy provision. It was in the context of refuting this argument that the court correctly stated that the regulation could not be given retroactive effect.

This court notes that the accident and claim for benefits in the Bronx Med. Servs. case both occurred in the year 2000.

In the instant case, the regulation applies to the insurance policy issued by defendant in March of 2002. The only question to be decided by this court is whether the regulation applies to [*3]claims filed after its effective date relating to accidents occurring before its effective date.

Few decisions have been rendered on this issue, and none on this specific point. In Ocean Diagnostic Imaging P.C. v GEICO Ins. (3 Misc 3d 137[A], 2004 NY Slip Op 50511[U] [2d Dept 2004]), the court found that Regulation 68-A did not apply because it was not in effect on the date of the accident or of the claim, which was received on August 15, 2001. In King’s Med. Supply Inc. v Progressive Ins. (3 Misc 3d 126[A], 2004 NY Slip Op 50311[U], *2 [2d Dept 2004]), the court also found for the provider because “at the time plaintiff’s claims were filed, EUOs were not available as a form of verification.” (Emphasis added.) Finally, in A.B. Med. Servs. PLLC v Eagle Ins. Co. (3 Misc 3d 8, 10 [2d Dept 2003]), the court held that the subject regulation was inapplicable with respect to denying claims based on the provider’s assignor failing to attend EUOs because “at the time plaintiffs filed the instant claims there was no provision in the insurance regulations for such a procedure.” (Emphasis added.)

All of the above-cited decisions are clear on one point: Regulation 68-A does not apply retroactively to claims filed before its effective date. By contrast, the claim for benefits in the instant case was filed more than a month after the regulation came into effect, and the insurance policy upon which the claim is based is subject to the regulation because it was issued and effective after September 1, 2001. Therefore, the court holds that Regulation 68-A applies to claims filed after its effective date and, consequently, the court denies plaintiff’s motion for summary judgment.

Although now moot, the court also finds that defendant’s argument that plaintiff’s assignor is not a covered person because of alleged fraud to be without merit. Defendant asserts correctly that the preclusion rule (denying an insurer the ability to raise any defense to a claim not paid or denied within 30 days of receipt or 30 days after verification) 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 (A.B. Med. Servs. PLLC v Eagle Ins. Co., supra). However, defendant has failed to provide any evidence of fraud with respect to plaintiff’s assignor. All assertions of fraud are made against the other parties to the incident, and therefore are not relevant to the assignor in question.

Plaintiff’s motion for summary judgment is denied for the reasons stated above.

Civil Court of the City of New York, Kings County

80154/03

David M. Steiner, Esq. of Isreal, Isreal & Purdy of Great Neck, NY appeared for plaintiff; Jeanne M. Valentine, Esq. of Cluasen, Miller P.C. of New York, New York appeared for Defendant.

Ann Elizabeth O’Shea, J.

Upon the foregoing cited papers, the decision and order on defendant’s motion to vacate a default judgment and to dismiss the complaint, is as follows:

Plaintiffs Aurora Chiropractic PC, Dragon Acupuncture PLLC, Latortue Medical Services, PC and S & B Neurocare, PC, instituted this action to recover first-party, no-fault benefits for medical services rendered to their assignor, Kathleen Marsh, who was injured in an automobile accident on February 16, 2001. Plaintiffs provided medical services to Ms. Marsh between March 14, 2001, and February 8, 2002. Each of the plaintiffs made several claims for payment. Upon the purported failure of defendant to pay or deny the claims within thirty days, plaintiffs instituted this action.

The summons and complaint were served on defendant on June 25, 2003. An extension of time to file an answer was requested and granted, giving counsel until August 15, 2003, to answer the complaint. On defendant’s failure to answer, a clerk’s judgment was entered, without any judicial intervention, in the amount of $31,287.65.

Defendant now seeks an order opening the default and setting aside the judgment entered [*2]against it. Defendant also seeks an order dismissing the complaint on the grounds that after August 31, 2001, it had no further obligation to pay No Fault benefits. Plaintiff submitted papers in opposition. Oral argument was heard on May 19, 2004, subsequent to which the matter was submitted for decision.

As a general rule, a default judgment will be vacated and a late answer will be permitted when a defendant can show that there was some reasonable excuse for its delay in answering and there is some merit to its defense (see Spencer v. Sanko Holding USA, 247 AD2d 532 [2d Dept 1998]). A defendant is not required to establish its defense as a matter of law; it need only set forth sufficient facts to make out a prima facie showing of a meritorious defense (see Quis v. Bolden, 298 A.D.2d 375 (2d Dept 2002).

In support of its claim to have a reasonable excuse for its delay in answering, defendant states that it intended to file an answer to the complaint, but ultimately could not do so without an index number, which plaintiff failed to provide. Although defendant allegedly attempted independently to ascertain the index number, by sending its law clerk on September 25, 2003, directly to the Court, its law clerk allegedly was told that there was no index number assigned to the matter. When defendant’s law clerk subsequently sought the information directly from plaintiff’s counsel by telephone, he purportedly was informed that plaintiff’s counsel was “not aware of” the index number, a telephone conversation which plaintiff’s counsel denies ever occurred. No claim is made that any further attempts to serve or file its answer were made. Because it was plaintiffs’ duty to provide defendant with an index number, defendant asks the court to excuse defendant from having taken no further action between the date on which it made inquiry of the Civil Court, and the date on which the default judgment was entered.

Despite defendant’s failure to follow up on the case during the five months which passed between the date it first sought an index number incident to filing an answer, and the date the default judgment was entered, it seems evident that there was no intention on the part of defendant to default in answering. Viewed in light of the strong public policy of this State which favors the resolution of cases on the merits (see Scagnelli v. Pavone, 178 AD2d 590 [2d Dept 1991]), and considering the fact that defendant moved promptly to open the default (see A.B. Med. Servs. Pllc v. Americar & Truck Rental Inc.., 2003 NY Slip Op 51394U [App. Term. 2003]), defendant’s excuse is deemed adequate.

Defendant advances as its “meritorious defense” a claim that the treatment rendered by plaintiffs was not medically necessary. Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely denial, based on a medical examination or a sufficiently detailed peer review report (see Amaze Med. Supply, Inc. v. Eagle Ins. Co., 2004 NY Slip Op 50279U, 1 [App. Term 2d Dept 2004]). In this case, defendant’s claim of a lack of medical necessity is supported by the results of five independent medical examinations conducted by Dr. Weiss, an orthopedist, Dr. Weksler a clinical psychologist and certified pain specialist, Dr. Zlatnick, a neurologist, Dr. Orenstein, a chiropractor, and Dr. Iozzio, an acupuncturist. In their reports, the last dated August 21, 2001, each concludes that Ms. Marsh is fully recovered, and has no further need for medical treatment, establishing its defense.

Defendant contends that the timeliness of its denial is not in issue as it issued a blanket denial of all “future benefits” directly to Ms. Marsh, in advance of the submission of any of plaintiffs’ [*3]claims, bringing it outside of the preclusion rules set forth in Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997]. In support of this contention, defendant appends as an exhibit to its motion papers, five undated denial of claim [NF-10] forms. Each references a particular independent medical examination report and states that “future benefits are being denied” based on the specified report. Although no proof of mailing was adduced, defendant contends that the NF-10 forms, and the medical reports, were mailed to Ms. Marsh on August 31, 2001.

No-fault regulations provide that “if the insurer has information which clearly demonstrates that the applicant is no longer disabled, the insurer may discontinue the payment of benefits by forwarding to the applicant a prescribed denial of claim form” (11 NYCRR 65.15[g][2][ii]). However, that section does not absolve defendant of its responsibilities under the No-Fault law and regulations to individually consider and timely pay or deny each subsequent claim made for benefits under the No-Fault law. As was observed by the court in Atlantis Medical, P.C. v. Liberty Mutual Insurance Co., 2002 NY Slip Op 40043U, 2002 NY Misc LEXIS 202 [Dist. Ct. Nassau Co.], when the provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply “sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.” To the contrary, both the statute and the regulations contemplate the insurer responding directly to the claim within the statutorily prescribed time frame, failing which it will be precluded, pursuant to Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997], from interposing such defenses as a lack of medical necessity.

Nor will a belated denial of plaintiffs’ No Fault claims be “deemed” timely on the basis of its earlier blanket disclaimer of responsibility which predated plaintiffs’ provision of services (see A&S Medical, P.C. v. Allstate Insurance Co., 196 Misc2d 322, 323 [App. Term. 1st Dept 2003], app. granted, NY App Div 2004 LEXIS 9836 [1st Dept July 5, 2004]). Thus, the additional NF- 10 forms included in defendant’s motion papers, dated January 16, 2002, responding to two claims made by plaintiff Aurora Chiropractic for $48.90 and $439.27, one claim made by plaintiff Latortue Medical Services for $812.89, and two claims made by plaintiff Dragon Acupuncture, for $1,275 and $1105, are not rendered “timely” by the mere addition of “benefits terminated on 8/31/01” as a part of the reason given for denial of the claims.

Nor do any of the January 10, 2003, NF-10 forms, standing on their own, evidence a timely denial of these five claims. For one thing, none of the NF-10 forms was sent to plaintiffs, as required by 11 NYCRR § 65.15(g)(3)(i)(“the applicant or the authorized representative”). They were all sent to plaintiffs’ assignor. Further, the forms are incomplete, lacking among other things the date on which the specified claims were received, absent which the timeliness of the response cannot be determined. Finally, defendant does not list a lack of medical necessity as the reason for its denial of plaintiffs’ claims. Having failed to do so, defendant is precluded pursuant to Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997], from advancing lack of medical necessity as a defense to any part of this action.

As defendant is precluded, in the absence of a timely denial, from advancing lack of medical necessity as a defense, defendant’s motion to vacate the default and set aside the judgment is denied.

This constitutes the decision and order of this Court. [*4]

Date:September 23, 2004_____________________________

Ann Elizabeth O’Shea, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, September 23, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, P.C. (Robert J. Baker of counsel), for plaintiff. Meiselman, Denlea, Packman, Carton & Eberz, P.C. (Stephen L. Bauley of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

This motion and cross motion for summary judgment raises a question of first impression under the regulations enacted pursuant to New York’s No-Fault Insurance Law.

Plaintiff sued defendant insurer to recover for first-party benefits under New York’s No-Fault Law. In support of its claim, plaintiff submitted proof of claim to defendant, including its proof of mailing. Plaintiff alleges that defendant failed to pay or deny its claim within 30 days as required by the No-Fault Law, nor has defendant requested additional verification. Under such circumstances, plaintiff asserts that defendant is precluded from raising a defense to its claim. (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997].) Therefore, plaintiff moved this court for summary judgment pursuant to CPLR 3211.

In opposition to plaintiff’s motion, defendant raised several issues, all of which have been dealt with during oral argument, leaving only one issue to be decided by the court. [*2]Defendant maintains that it does not have to pay the claim because plaintiff is not currently registered with the New York State Department of Education. This argument forms the basis of defendant’s cross motion for summary judgment. Plaintiff’s counsel has represented that plaintiff, although not currently registered, was registered at the time the services that form the basis of this claim were provided.

Therefore, the issue to be determined by the court is: Whether a health care provider who is registered with the New York State Department of Education at the time services are provided may recover the value of those services under New York’s No-Fault Insurance Law if the provider is no longer registered at the time payment for those services is sought?

11 NYCRR 65-3.16 (a) (12) states:

“A provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

To date, this section of the regulation has not been subject to judicial scrutiny.

The words of the statute would appear to be clear on its face: licensed to “perform such service.” However, without any other direct interpretation of this regulation, the court must look to other circumstances in which the judiciary has determined similar issues.

Section 691.10 (b) of title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, dealing with the conduct of attorneys, states that “[a] disbarred, suspended or resigned attorney may be compensated . . . for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation.”

The rationale behind this regulation is that the services were provided by the attorney when he or she was licensed, and therefore the attorney is entitled to appropriate compensation for the work the attorney legally performed. (See generally, Casey v Ruffino, 306 AD2d 304 [2d Dept 2003]; Lee v Hayt, Percy & Mermelstein, 4 Misc 3d 1012[A], 2004 NY Slip Op 50853[U] [2004].)

Further, under general principles of contract law, it is well settled that contracts made by private parties must necessarily be construed in the light of the applicable law at the time of their execution. (10 NY Jur 2d, Contracts § 204, at 112; see City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Empls. Assn. v City of Troy, 36 AD2d 145 [3d Dept 1971].) Generally, therefore, the validity of a contract will depend upon the law as it existed at [*3]the time it was made. (Goldfarb v Goldfarb, 86 AD2d 459 [2d Dept 1982].) The only exception to this rule occurs if there is a variation in the law that is made due to changes in public policy. Otherwise, the contract will be interpreted according to the law in effect at the time of its execution. (Bloomfield v Bloomfield, 97 NY2d 188 [2001].)

The court does not find any legislative intent that indicates it is against public policy to reimburse a medical provider for services rendered that were lawfully performed, regardless of the subsequent status of the medical provider.

Based on the foregoing, the court holds that a medical provider may be reimbursed for services rendered while he or she was registered and licensed to perform such services under section 65-3.16 (a) (12) of 11 NYCRR, even if the provider subsequently becomes unregistered.

Plaintiff’s motion for summary judgment is granted. Defendant’s cross motion for summary judgment is denied.

[*1]

Civil Court of the City of New York, Queens County, September 20, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for petitioner. Samuel K. Rubin, Bethpage (Barbara Ann Anzelmo of counsel), for Eagle Insurance Company, respondent. Wade, Clarke, Mulcahy, New York City (Nicole Y. Brown of counsel), for Arbitration Forums, Inc., respondent.

OPINION OF THE COURT

Bernice D. Siegal, J.

Motion by petitioner to vacate an arbitration award on the grounds that Arbitration Forums, Inc. has not only misapplied the statute of limitations three times but has flouted an order of this court, and for the imposition of sanctions against respondent Arbitration Forums, Inc. for such contumacious and frivolous behavior is granted to the extent of vacating said arbitration award, remanding the matter for a new hearing before yet another arbitrator and setting the matter of sanctions against Arbitration Forums, Inc. and Eagle Insurance Company down for a hearing on September 27, 2004 at 9:30 a.m. in Part 39 of this court with memoranda of law to be served upon opposing counsel and filed with the court on or before September 20, 2004. The court, sua sponte, extends the matter of the imposition of sanctions to also apply against Eagle Insurance Company as, in light of the law of the case and clear decisional law to the contrary, Eagle opposed the petition to vacate and cross-moved to confirm the erroneous award. The court recognizes that in opposition to the petition, Arbitration Forums, Inc. has indicated that it will vacate the award and reopen the arbitration. Relief for petitioner, however, remains contingent. Should such vacatur indeed occur prior to the entry of this judgment, it is understood that the portion of the within motion respecting the vacating of the award would be moot. However, the issues of whether this court has the authority to impose sanctions upon Arbitration Forums, Inc. and, if so, does Arbitration Forums’ action warrant such punishment, would be nonetheless ripe for review and require a reasoned response. Additionally, respondent’s cross motion to confirm on the grounds that the misapplication of the statute of limitations is not sufficient grounds to vacate an arbitrator’s decision is unavailing and is denied in all respects.

Petitioner, the assignee of an individual allegedly injured in a motor vehicle accident by the respondent’s insured, initially sought reimbursement pursuant to 11 NYCRR 65.10 through compulsory arbitration required for PIP loss transfer. In its initial decision dated October 13, 1998, Arbitration Forums held that the petitioner failed to prove liability [*2]in that it commenced the arbitration more than three years from the date of loss. Petitioner argued that the correct statute of limitations should have been three years from the date of first payment. The award was eventually vacated by the Appellate Term, by order dated October 20, 2000, holding that the imposition by the arbitrator of the wrong statute of limitations was arbitrary and capricious and remanded the matter for a new hearing before another arbitrator. The matter was set down for a new hearing, whereupon it was dismissed by the arbitrator on May 15, 2001 upon the same grounds. The court again vacated the arbitration award as the award was “based on an erroneous application of the statue [sic] of limitations” on or about September 10, 2001. The matter was once again submitted for arbitration and once again, on July 15, 2003, the arbitration award was granted in favor of respondent on the grounds that “no fault statue [sic] based on 3 yrs from date of loss not date of 1st payment.”

Scope of Review

The scope of review of compulsory arbitration decisions has long been held to be clearly beyond the restrictions engrafted in CPLR 7511. In 1980, the Second Department held that “[t]he test thus applicable for review of no-fault arbitrations where error of law is in issue is . . . whether any reasonable hypothesis can be found to support the questioned interpretation.” (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [2d Dept 1980].) The Court of Appeals further refined the test and held that where arbitration is mandatory, an award “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Thus, the stricter standard imposed upon review of compulsory arbitration applies to the case at bar as the petitioner herein sought reimbursement of no-fault payments pursuant to Insurance Law § 5105 and New York State Insurance Regulations (11 NYCRR) § 65.10, entitled “Mandatory arbitration procedures for insurers, self-insurers and compensation providers under section 5105 of the Insurance Law.” Therefore, there is no question that the underlying arbitration was compulsory, derived from statute and not voluntary. Thus, the question of law is whether the imposition of a three-year statute of limitations from the date of the accident was arbitrary and capricious.

Statute of Limitations

CPLR 214 imposes a three-year statute of limitations and, specifically, CPLR 214 (2) imposes a three-year statute on liabilities imposed by statute.

The Court of Appeals noted almost one decade ago that in determining the applicability of CPLR 214 (2):

“[T]he pertinent inquiry is whether the statute creates a liability ‘for wrongs not recognized in the common or decisional law,’ and which would not exist but for the statute (State of New York v Cortelle Corp., 38 NY2d 83, 86; see, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175; State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 88; Murphy v American Home Prods. Corp., 58 NY2d 293, 307; Siegel, NY Prac § 35, at 41 [2d ed]).” (Hartnett v New York City Tr. Auth., 86 NY2d 438, 444 [1995].)

Recently, the Fourth Department specifically held that in a loss transfer claim, which is [*3]statutorily created, the statute of limitations is governed by CPLR 214 (2) and “accrues on the date of payment of no-fault benefits to the claimant, because by then ‘all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain the relief in court.’ ” (Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42 [4th Dept 2003] [citations omitted].) This is true in spite of the recent pronouncement of the Court of Appeals wherein it found that plaintiff insurer seeking reimbursement from the tortfeasor was foiled by a three-year statute of limitations from the date of the accident as “it involves a traditional equitable subrogation, not a liability created by statute” (Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004]).

Respondent Eagle’s reliance on Allstate v Stein is therefore misplaced. The case at bar is not one that involves “traditional equitable subrogation,” rather it involves loss transfer plucked from New York State’s No-Fault Law, between two insurers. As the rights and relationships between the parties were created by statute and did not exist in the common law, the statute of limitations found in CPLR 214 (2) must be applied.

Further, the issue of which statute of limitations to impose for mandatory no-fault arbitrations is not new to the appellate courts in this department or to these respondents. The Appellate Term has consistently held in both published and unpublished decisions during 2003 that the statute of limitations of three years from the date of payment is applicable in mandatory loss transfer arbitrations between carriers and failure to apply the correct statute of limitations is arbitrary and capricious. (State Farm Mut. Auto. Ins. Co. v Eagle Ins. Co., 6 Misc 3d 27 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898[U] [App Term, 2d & 11th Jud Dists 2003].)

Moreover, as Allstate v Stein (supra) is not dispositive, the Appellate Term has spoken on this very dispute between these very parties, no appeal has been taken and, thus, its decision entered on October 20, 2000, wherein it held that the misapplication of the statute of limitations was arbitrary and capricious, remains the law of the case (see People v Evans, 94 NY2d 499 [2000]; Rubenfeld v Gambino, 289 AD2d 319 [2d Dept 2001]; Kowalski Enters. v Sem Intl., 278 AD2d 371 [2d Dept 2000]; Shroid Constr. v Dattoma, 250 AD2d 590 [2d Dept 1998]).

Accordingly, the motion by petitioner to vacate the arbitration award is granted with costs, but the demand for sanctions is set down for a hearing on September 27, 2004, including but not limited to evidence of attorney’s fees expended on petitioner’s behalf for the various arbitrations and petitions to vacate after the Appellate Term decision, with memoranda of law respecting the imposition of sanctions on both Arbitration Forums, Inc. and respondent Eagle Insurance and its attorneys, including whether this court has the authority to impose sanctions in this matter and the basis therefor to be served and filed with [*4]the court prior to September 20, 2004. Respondent’s cross motion is denied in all respects.

[*1]

Civil Court of the City of New York, Kings County, September 14, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for plaintiffs. Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

OPINION OF THE COURT

Ann Elizabeth O’Shea, J.

Plaintiffs A.B. Medical Services PLLC and LVOV Acupuncture P.C. instituted this action to recover first-party, no-fault benefits for medical services rendered to their assignor, Danny Arenas, who was injured in an automobile accident on March 7, 2003. Plaintiffs provided medical services to Mr. Arenas between March 24, 2003 and June 5, 2003. Each of the plaintiffs made several claims for payment. Only four of those claims are in issue here, each originating from plaintiff A.B. Medical.

Under the no-fault insurance regulations, an insurer must pay or deny a claim within 30 days after it receives a properly completed proof of claim (11 NYCRR 65-3.8 [c]). While an insurer may request additional information to verify a claim, it must do so within 15 days after receiving the proof of claim (11 NYCRR 65-3.5 [b]), and it must then pay or deny the claim within 30 days after receipt of the requested information (11 NYCRR 65-3.8 [a] [1]; [c]).

In order to establish a prima facie case of entitlement to summary judgment on its claims for first-party, no-fault benefits, a plaintiff medical provider need only provide proof that it submitted and defendant received a properly completed claim form, including a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), and that defendant did not pay or deny the claim within 30 days after its receipt of the proof of claim or of additional information in response to a [*2]timely request for verification (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2d Dept 2004]).

All four claims were denied on the asserted ground that the services provided were not medically necessary. The forms denying three of the four claims in issue were dated more than 30 days after defendant had received complete proofs of claim. One—for $604.24—was received by defendant on April 29, 2003, and the denial form is dated June 3, 2003, 35 days after the claim was received. A claim for $240 and another for $1,972.08 were received by defendant on June 11, 2003; the denial form for each of those is dated July 22, 2003, 41 days after receipt of the claim. The fourth claim, for $360, was received by defendant on April 14, 2003. Although the denial form is dated May 14, 2003, exactly 30 days after receipt of the claim, the envelope in which the denial was mailed is postmarked May 19, 2003, 35 days after receipt of the claim. In that situation, the operative date for determining the timeliness of the denial must be the date on which the denial was mailed, not the date stated on the denial form (accord Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]). To conclude otherwise would undermine the primary goal of the no-fault system, which is the prompt consideration and processing of claims for losses resulting from automobile accidents (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), permit unwarranted delays in the notification of the denial, or encourage the backdating of denials.

Despite the untimeliness of its denials, defendant contends that the assignment of benefits submitted by plaintiff in conjunction with its proofs of claim is deficient because it is undated and the signature of the purported assignor is unauthenticated. While the no-fault regulations require that a proof of claim include a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), the Appellate Term has rejected the argument that the signature on an assignment of benefits must be authenticated for a plaintiff to meet its prima facie burden on a motion for summary judgment (see Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U] [2004], revg Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., Civ Ct, Kings County, July 7, 2003, Sweeney, J., Index No. 75326/02). There is no principled reason why the absence of a date on an assignment should be treated differently from the absence of an authentication of the signature (but see A.B. Med. Servs. v American Tr. Ins. Co., Civ Ct, Kings County, Apr. 13, 2004, Gesmer, J., Index No. 69587/03). Defendant had the opportunity to object to the form or sufficiency of the assignment and to request the original assignment pursuant to its right to seek verification of the claim at the claims stage of the proceeding (see 11 NYCRR 65-3.5 [a]-[c]; 65-3.11 [c]). Its failure to do so results in a waiver of any defense based upon an asserted infirmity in the assignment (New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]; Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U]), or on any other asserted deficiency in the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2d Dept 2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]), as well as any defense based upon lack of medical necessity (see e.g. Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists, June 27, 2002]).

Having submitted proof that it mailed and defendant received its claim forms demonstrating the amount of the loss sustained and that defendant failed to request verification of the assignments or claims or to pay or deny those claims within the applicable time limits, plaintiff established its prima facie entitlement to summary judgment on each of its claims (see New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]). Since defendant is precluded from raising any defense with respect to the sufficiency of the claim forms or the medical necessity of the services provided, there are no issues of fact or law that remain in dispute.

Accordingly, plaintiffs’ motion for partial summary judgment is granted.

Civil Court of the City of New York, Queens County

119001/02

Baker, Barshy & Neuwirth, LLP By: David M. Barshay Esq., Attorneys for plaintiff,1393 Veterans Memorial highway, Ste 21N New York,11788, (631) 979-2906; Short & Billy P.C., By: Ellen Burach-Zion Attorneys for defendant, 217 Broadway Ste 300 New York, N.Y., 10007.

Timothy J. Dufficy, J.

Plaintiff East Way Chiropractic P.C. brought this action against Allstate Insurance Company to recover four separate no-fault payments under a uniform contract of insurance. A non-jury trial was held before this court on May 25, 2004.

FINDINGS OF FACTS

Tammy Figueroa, testified she worked in the billing department for the plaintiff East Way Chiropractic for approximetly five years. She stated that she was responsible for entering data in a computer program for medical bills and was responsible for keeping patient files and billing files in the ordinary course of business.

Ms. Figueroa was familiar with the files of Johnny Concepcion, Charles Taylor, Connie Charles and Jose Martin. Before any assignments were accepted, the office practice was to verify the identity of the patient. Ms. Figureoa stated that no payments were made to the plaintiff East Way except for partial payments made on behalf of Connie Charles. The claim form, to wit “the NF3” and assignments were accepted into evidence except for Jose Martin’s assignment which could not be located.

ISSUES

After plaintiff established a prima facia case, the issue of a timely denial was raised by the plaintiff. The only proof submitted by the defendant was the “NF10” denials which were timely on their face. Defendant’s witness Hector Herrera testified that he was a claim adjuster for defendant Allstate Insurance Company for the past three years and was familiar with the Taylor, Martin and Charles no-fault files. Mr. Herrera received training as to the procedure used by Allstate when a claim is denied. Mr. Herrera testified that the information is entered into the network or main frame computer with a claim number and the injured party’s name. Mr. Herrera stated he was assigned to the instant claims a few days before trial. He testified through the in house training he learned how data is entered into the computer. Denial forms are mailed from a central office in Texas. Mr. Herrera testified through his training, he learned that the forms are mailed out the same day they are entered into the computer or at latest the next day, unless it was a Friday or a holiday weekend. On cross examination, Mr. Herrera admitted that he testified at a prior proceeding that he thought the mailing were done by a third party. However, Mr. Herrera was later permitted to correct his testimony at that proceeding. The court finds that Mr. Herrera [*2]lacks personal knowledge of the of the mailing procedure used in the Texas facility and in fact never visited or worked in the Texas office. No other evidence of a timely mailing was offered by defendant.

As pointed out by the plaintiff in their trial memorandum of law, the law is well settled in that for an insurer’s denial of claim form to be deemed timely pursuant to 11 NYCRR 65.15(g) (3) and Insurance Law§5106(a), the insurer must not only prove that it generated the denial document within thirty (30) days of receipt of the applicants claim, but that it also mailed the denial to the applicant within the same time period. See, Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 A.D.2d 374 (2nd Dept. 2001); A. B. Medical Services, PLC v. GEICO Ins., 2 Misc. 3rd 26 (APP. Term 2nd and 11th J.D. Dist. 2003). The court holds that personal knowledge of the actual mailing or at least personal knowledge of the actual procedure is required. See, S& M Supply Inc. V. GEICO Ins., 2003 N. Y. Slip Op. 51192 (U) (App. Term. 2nd and 11th J.D. Dist. 2003). In the case at bar, the witness did not have personal knowledge of the Texas mailing procedure and in fact never visited or worked at the Texas office. Therefore, the defendant failed to establish that the denials were timely mailed to the applicant within thirty (30) days.

Accordingly, judgment is awarded to the plaintiff for the amount sought in the complaint for services provided to Johnny Concepcion ($122.14), Charles Taylor ($1615.58), Jose Martin ($1916.46). As for the claim for services provided to Connie Charles partial judgment in the amount of $470.96. The plaintiff is directed to submit a judgment to the court together with statutory interest and attorney fees.

Dated: June 23, 2004 _________________________

TIMOTHY J. DUFFICY, J.C.C.