CV-002459-19

Attorneys for Plaintiffs: Economou & Economou, P.C., 85 Cold Spring Road, Suite 200, Syosset, NY 11791 (516) 682-0010

Attorneys for Defendants: Martyn and Martyn, 330 Old Country Road, Suite 211, Mineola, NY 11501 (516) 739-0329

The following papers have been considered by the Court on this special proceeding submitted April 12, 2019

Notice of Petition w/ annexed supporting papers 1
Affirmation in Opposition w/ annexed supporting papers 2
Reply Affirmation 3

Petitioner brings this proceeding seeking an order, pursuant to CPLR 7511(1), vacating the master arbitration award herein, dated November 14, 2018, which affirmed the lower arbitration award, dated August 10, 2018. Petitioner further requests that, upon such award being vacated, it be awarded the amount of $2,027.00, together with statutory interest from December 29, 2016, as well as, costs and attorneys fees.

Specifically, petitioner contends that the master arbitrator’s award was arbitrary, capricious and incorrect as a matter of law in upholding a denial of benefits defense premised upon exhaustion of policy limits notwithstanding that the policy was not exhausted at the time petitioner’s otherwise valid claim was earlier denied in good faith by respondent carrier.

New York public policy strongly favors arbitration (Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146,155 [1995]; Maross Constr., Inc. v Central New York Regional Transp. Authority, 66 NY2d 341, 346 [1985]). Since the purpose of arbitration is to allow final, binding resolution of parties’ claims without resorting to the courts, the scope of review of an arbitration decision is extremely limited. “Moreover, courts are obligated to give deference to the decision of the arbitrator” (In re N.Y.C. Transit Authority v Transport Workers’ Union of America, Local [*2]100, AFL-CIO, 6 NY3d 332, 336 [2005]).

Judicial review of a master arbitrator’s award is restricted to the grounds set forth in CPLR 7511, except in those instances where the award is $5,000 or more (see Matter of Petrofsky (Allstate Ins. Co.), 54 NY2d 207, 210 [1981]). As applicable in this case, Section 7511(b)(1)(iii) of the CPLR allows the court to vacate an arbitration award upon the application of either party, if it finds that the arbitrator prejudiced the applicant’s right by exceeding the scope of his or her authority in making the award. In no-fault insurance cases, it is the role of the master arbitrator to review the lower arbitration award and determine whether it was made in a rational manner and that it was neither arbitrary nor capricious (see Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [2d Dept 1994]).

“A master arbitrator exceeds his statutory power by making his own factual determination, by reviewing factual and procedural errors committed during the course of the arbitration, by weighing the evidence, or by resolving issues such as the credibility of the witnesses (see Matter of Smith [(Fireman’s Ins. Co.) 55 NY2d 224 [1982]]” (Id.; see also Matter of Jasser v Allstate Ins. Co., 77 AD3d 751 [2d Dept 2010]). On the other hand, even if the master arbitrator’s decision vacates the lower arbitration award based upon the fact that the lower arbitrator made an error of law, this is within the scope of the master arbitrator’s review, and “the courts are limited in their further review of the master arbitrator’s resolution of that error of law, since we generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law, unless it is so irrational as to require vacatur” (Matter of Smith (Firemen’s Ins. Co.) 55 NY2d at 232 [citations and internal quotations omitted] [bold type added]).

Here, there is no claim that the master arbitrator made his own factual determination. Rather petitioner’s contention that the master arbitrator’s decision to affirm the lower arbitration was “contrary to controlling law” (Petition at ¶ 10) is necessarily premised on the contention that, as such, it is “so irrational as to require vacatur” within the meaning of Matter of Smith (Firemen’s Ins. Co.), supra.

Where as here, both the arbitrator and the master arbitrator cited and considered the split between the First and Second Departments on the issue of policy exhaustion and priority of payment (compare Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137(A) [App Term 1st Dept [2015]; Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App Term 2d Dept [2017]), ultimately following the rationale of Harmonic, the master arbitrator’s award cannot be found to be irrational. As the master arbitrator did not exceed his authority in affirming the lower arbitration award, vacatur of that award is not warranted,

Accordingly, petitioner’s motion is denied in all respects, and the master arbitrator’s award is confirmed (CPLR 7511[e]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, PC, 67 AD3d 1017 [2d Dept 2009]).

So Ordered.

Dated: June 3, 2019
Hon. Ignatius L. Muscarella
DISTRICT COURT JUDGE

[*1]

District Court of Nassau County, Third District, May 13, 2005

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City, for defendant. Israel, Israel & Purdy, LLP, New York City, for plaintiff.

OPINION OF THE COURT

Scott Fairgrieve, J.

The defendant moves for an order pursuant to CPLR 3042 (c) compelling the plaintiff to respond to the defendant’s demand for a bill of particulars and for an order pursuant to CPLR 3124 compelling the plaintiff to produce a witness for examination before trial, or, in the alternative, to strike the plaintiff’s pleadings for noncompliance. The plaintiff opposes the defendant’s motion.

The defendant’s motion to strike the plaintiff’s complaint for plaintiff’s failure to respond to the defendant’s demand for a bill of particulars is denied as moot, as the plaintiff has since answered the defendant’s bill of particulars. Moreover, contrary to the defendant’s assertion in its reply affirmation, the court finds said responses to be sufficient.

The defendant also seeks to dismiss the plaintiff’s complaint upon the failure of the plaintiff’s treating physician to appear for an examination before trial (EBT).

The court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v Pei-Fei Lee, M.D. P.C., 192 AD2d 1008 [3d Dept 1993]).

UDCA 1101 (a) requires that the Nassau County District Court adopt all of the procedures set forth in the CPLR with regard to disclosure. [*2]

CPLR 3101 states, in pertinent part, that:

“(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:

“(1) a party, or the officer, director, member, agent or employee of a party;

“(2) a person who possessed a cause of action or defense asserted in the action . . . .”

Accordingly, pursuant to CPLR 3101 (a), in the Nassau County District Court there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” (Emphasis added.) The words “material and necessary” should be interpreted liberally to “require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test [to determine if the information sought is material and necessary] is one of usefulness and reason” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also U.S. Ice Cream Corp. v Carvel Corp., 190 AD2d 788 [2d Dept 1993]). The term “necessary” has been construed to mean “needful” rather than “indispensable” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968], supra). “If there is any possibility that the information [was] sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence material . . . in the prosecution or defense’ ” (Matter of Comstock, 21 AD2d 843, 844 [4th Dept 1964]). However, the Allen case makes clear that disclosure extends to all relevant information calculated to lead to relevant evidence not just information that can be used as evidence-in-chief (see, CPLR 3101; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:7, at 18, citing West v Aetna Cas. & Sur. Co., 49 Misc 2d 28 [1965], mod 28 AD2d 745 [3d Dept 1967]; see also Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]). “If the data elicited is within the broad scope of CPLR 3101 (a) as construed in the Allen case, the excursion should be called a ‘relevant inquiry’. That would leave [the term] ‘fishing expedition’ to describe the inquiry that goes beyond that extended compass” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:8, at 19). Furthermore, matters relating to disclosure lie within the broad discretion of the trial court, as it is in the best position to determine what is material and necessary (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968], supra; see also, Andersen v Cornell Univ., 225 AD2d 946 [3d Dept 1996]).

Applying the principles established in the Allen case to the issue of an insurance carrier’s right to an EBT of a medical provider in a no-fault case, the court finds that, provided certain conditions are met by an insurance carrier, the carrier is entitled to an EBT of a medical provider. The Court of Appeals has clearly held that, pursuant to the no-fault regulations, in a case in which no additional verification is timely sought, an insurance carrier must pay or deny a claim of no-fault benefits within 30 days from the receipt of a claim or be precluded from interposing a defense to the denial of the claim, with limited exceptions (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., [*3]90 NY2d 274 [1997]). In the case of a defense of “medical necessity,” the courts have held an insurance carrier is precluded from raising a defense of “medical necessity” where the denial was not timely and that summary judgment in favor of the medical provider is appropriate in such situations, provided the plaintiff submits proper proof of the claim and the amount of the loss (see, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997], supra; Howard M. Rombom, Ph.D., P.C. v Interboro Mut. Indem. Ins. Co., 186 Misc 2d 847 [App Term 2000]). Thus, when the insurance carrier has failed to issue a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible on any defense, except if the insurance carrier’s defense falls within limited exceptions. The limited exceptions set forth in the Presbyterian case are where untimely denials are of no consequence because the insurer is not required to pay the claim and where the claim is ultimately deemed invalid (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], supra). Such situations include, inter alia, fraud and a lack of coverage defense based upon a belief that the alleged injury does not arise out of the insured accident (see, 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]).

If an insurance carrier has made a timely denial, based upon “medical necessity,” then its objective in seeking an EBT of the medical provider is not a means of harassing the medical provider, but rather the insurance carrier is trying to obtain relevant information on its defense of “medical necessity.” Certainly in cases where an insurance carrier timely denied the no-fault claim, based upon the ground of “medical necessity,” the carrier is entitled to explore why the medical provider or treating physician determined the treatment to be necessary. However, if an insurance carrier seeks an EBT of a medical provider, to inquire about the “medical necessity” of the treatment provided to the plaintiff’s assignor, when the insurance carrier has failed to timely deny the medical provider’s claim, such failure will preclude an EBT of plaintiff and any other defenses not raised. The defendant must satisfy the following standard expressed in Socrates Psychological Servs., P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 642, 654 [Civ Ct, Queens County 2005]) which, in relying on Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [2005]), stated:

“[T]he lodestar for determining a no-fault first-party benefits case is the denial of claim, the NF-10. To avoid a plaintiff’s successful motion for summary judgment, an insurer must state, with a high degree of specificity, in its NF-10, any applicable defense, except for fraud (presently defined only as a staged accident) or lack of coverage, and must stand or fall upon those defenses. If not raised in a timely fashion and with specificity, those defenses will not be entertained later, no matter how meritorious they may be in substance (Metropolitan Radiological, [7 Misc 3d 675] [2005], supra [citing cases]; see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]; Socrates Psychological Servs., P.C. v Lumbermans Mut. Cas. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50690[U] [App Term, 1st Dept 2004] [per curiam]).”

The court in Metropolitan Radiological continued that the NF-10 is the only appropriate yardstick for measuring a discovery device’s propriety, not a perusal of any number of the “separate and complete” or “separate and distinct” affirmative defenses contained in the defendant insurer’s answer. The court stated:

“In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and was done so timely . . .

“Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.” (Metropolitan Radiological, 7 Misc 3d at 679.)

The reasoning of Metropolitan Radiological applies equally to the present situation of the appropriate scope of an EBT. This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10. The four corners of the denial of claim form, the NF-10, and defenses there stated with a high degree of specificity (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]) should yield the examining attorney at an EBT with sufficient and fertile avenues of disclosure.

In the instant case, neither party addresses the issue of whether the defendant has issued a timely denial and the basis for denial of plaintiff’s claim.

Accordingly, the defendant’s motion is denied.

District Court, Nassau County

32030/02

Randy Sue Marber, J.

Before this Court is another motion for summary judgment pursuant to CPLR §3212

brought by the plaintiff. In addition, the defendant cross-moves, pursuant to CPLR §3216, for an order dismissing the above entitled action for want of prosecution, and pursuant to CPLR 3212 dismissing the plaintiff’s complaint for failure to provide proof of its claim. Although not set forth in the Notice of Cross-Motion, the defendant also seeks to dismiss the complaint because the services were provided by independent contractors hired by the plaintiff, a professional corporation. The plaintiff cross-moved to compel discovery. The Court notes that by a stipulation of the parties, the plaintiff’s motion for summary judgment was withdrawn.

The plaintiff, a health care provider, commenced this action to recover the sum of $4,020.66, in first party no-fault benefits for medical services rendered to its assignor.

The defendant has complied with the statutory requirements of CPLR §3216(b), in that issue has been joined, one year has elapsed since the joinder of issue, and the defendant has served by certified mail/return receipt request a ninety (90) day written demand to the plaintiff to proceed with the action.

The ninety (90) day notice was sent to the plaintiff on May 14, 2004. Accordingly, the [*2]plaintiff had until August 16, 2004 to file a notice of trial or request more time within the prescribed time period.

Page 2

Index No. 32030/02

On or about September 28, 2004, after the ninety (90) day period had expired, the plaintiff served a motion for summary judgment and further asserted that it did not file a notice of trial because there was outstanding discovery.

To withstand the defendants’ motion to dismiss, the plaintiff was obliged to demonstrate both a justifiable excuse for failing to file a notice of trial within ninety (90) days of the defendant’s demand and a meritorious cause of action (see, CPLR 3216[e]; Nichols v. Agents Serv. Corp., 133 AD2d 912, 913). The plaintiff has not demonstrated a justifiable excuse for failing to file a notice of trial. The plaintiff claims that the reason for the delay was that there was a pending summary judgment motion that has not yet been decided and that discovery remains outstanding. The proffered excuse is insufficient to justify the delay (cf., Carmen v. West Hudson Hosp., 129 AD2d 868; MacLeod v. Nolte, 106 AD2d 860). If additional time was required, the plaintiff’s remedy was a motion either to vacate the ninety (90) day notice or to secure an extension of the ninety (90) day period (see, Mason v. Simmons, 139 AD2d 880, 881). Moreover, the summary judgment motion was not filed until after the ninety (90) day period.

Accordingly, the plaintiff’s action is hereby dismissed.

This constitutes the decision and order of this Court.

Dated: April 20, 2005

ENTER:

_________________________________

Randy Sue Marber, District Court Judge

District Court, Nassau County

14015/04

Sondra K. Pardes, J.

The defendant’s motion and the plaintiff’s cross motion for summary judgment pursuant to CPLR 3212 are decided as follows.

FACTS OF THE CASE

This is an action for recovery of No-Fault Insurance benefits for medical services provided to the assignor in connection with an automobile accident that occurred on September 20, 2003. It is uncontroverted that the plaintiff medical provider provided medical services to the assignor and submitted bills for same, along with an assignment of benefits form dated October 25, 2003, to the defendant. The bills and Assignment of Benefits (“AOB”)form were received by the defendant on November 17, 2003. By letter dated November 19, 2003 the defendant requested that the plaintiff submit an AOB form signed by the plaintiff. The plaintiff forwarded a second AOB, (also dated October 25, 2003), which was received by the defendant on January 8, 2003. The defendant has not [*2]paid or denied the claim.

The defendant now moves for summary judgment on the grounds that the plaintiff failed to obtain a properly executed assignment of benefits pursuant to 11 NYCRR 65-3.11(b)(I). The defendant maintains that its requests for additional verification remains outstanding and therefore its time to pay or deny the claim has not run and this action must be dismissed as premature.

The plaintiff cross moves for summary judgment on the grounds that the AOB form received by the defendant on January 8, 2003 satisfied the request for additional verification and the defendant’s time to pay or deny the claim ended thirty days after that date.

No-Fault Insurance regulations 11 NYCRR 65-3.11(b)(2) provide, in pertinent part, that in order for a health care provider to receive direct payment from an insurer, it must submit “a properly executed assignment on: (i) the prescribed verification of treatment by the attending physician or other provider of service form (N.Y.S. form NF-3), or (ii) the prescribed verification of hospital treatment form (N.Y.S. form NF-4), or the prescribed hospital facility form (N.Y.S. form NF-5), or (iii) the prescribed no-fault Assignment of Benefits form (N.Y.S. form NF-AOB) contained in Appendix 13, infra, or an equivalent form containing nonsubstantive enhancements, but no changes may be made to the assignment language itself…”.

The attorney for the defendant argues that in the instant case the defendant elected to utilize the NF-AOB form. That AOB form, which was received by the defendant on January 18, 2003, contains a line for “Signature of Provider”. The following hand printed statement appears above that line: “- on behalf of Amy Beth Goldman, M”. There is no “signature” on that line. In addition, there is no identification of the individual who allegedly signed “on behalf of” Amy Beth Goldman. Although counsel for the defendant argues “there is no requirement” that a NF-AOB form contain a signature by the provider, the form the plaintiff elected to utilize clearly requires a “Signature of Provider”. The plain language of the No-Fault Insurance regulations requires that the provider submit a “properly executed assignment” on whatever form it chooses to submit.

It is well established that the No-Fault law is in derogation of the common law and must therefore be “strictly construed” (Presbyterian Hosp. In the City of NY v. Atlanta Casualty Co., 210 Ad2d 210, 211 [2nd Dept., 1994]). Based on the above, the court finds that the plaintiff failed to submit a properly executed AOB and therefore it has failed to comply with the defendant’s request for additional verification pursuant to 11 NYCRR 65.15(g)(I). Consequently, this court finds that the defendant’s time to pay or deny the [*3]claim has not begun to run.

Accordingly, based on the above, the plaintiff’s cross motion for summary judgment is denied and the defendant’s motion for summary judgment is granted; and it is

Ordered that the plaintiff’s complaint is dismissed.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: March 29, 2005

CC:Friedman, Harfenist, Langer & Kraut

Freiberg & Peck, LLP

District Court, Nassau County

33887/02

Freiberg & Peck, LLP, New York City, for defendant.

Belesi, Donovan & Conroy, P.C., Garden City, for plaintiff.

Scott Fairgrieve, J.

Defendant Progressive Insurance Company moves for an order pursuant to Section 2221 of the CPLR to modify this Court’s previous order dated June 29, 2004. Previously, this Court denied defendant’s motion for summary judgment based upon plaintiff commencing this within action to recover no-fault benefits without first having responded to the verification demands sent by defendant.

This Court denied the defendant’s motion for summary judgment and instead, ordered plaintiff to respond to the verification demands within 30 days.

After plaintiff served the responses to the verification requests to the defendant’s attorney (not to the defendant insurance company), defendant allegedly failed to issue a timely denial of no-fault benefits. Based upon this failure, plaintiff cross moves and claims it is now entitled to summary judgment.

This Court has reconsidered this issue based upon a review of all papers submitted. This Court now recalls its initial decision of June 29, 2004 and grants summary to the defendant because defendant was under no duty to issue a denial until plaintiff responded to the verification requests. [*2]Thus, plaintiff’s action to recover no-fault was premature because there was no issue in controversy and the action should have been dismissed.

A case directly on point is Psych & Massage Therapy Association, PLLC v. Progressive Cas. Ins. Co., 5 Misc 3d 723, 2004 WL 2563584 (NY City Civ. Ct, 2004), wherein the court held that the failure of the plaintiff to respond to a proper verification request precludes an action to recover no-fault benefits because:

Accordingly, as defendant complied with the letter and spirit of the No Fault regulations, and plaintiff suffered no prejudice from defendant’s expeditious response to plaintiff’s claim, defendant’s verification requests are deemed timely and proper. As plaintiff never responded to defendant’s timely and proper verification requests, defendant was under no duty to issue a denial. See Westchester Medical v. Travelers Prop., 2001 WL 1682931 (Nass. S.C. 2001). Therefore, plaintiff commenced the action prematurely. As there are no issues of fact in dispute, defendant’s motion is granted. This constitutes the decision and order of the Court.

See also Westchester Medical Center v. Travelers Property & Casualty Ins. Co., 2001 WL 1682931 (Nass. Sup Ct 2001), which also dismissed a plaintiff’s action because it was premature:

Based upon the foregoing, the plaintiff’s lawsuit was premature in that a lawsuit with regard to no-fault benefits cannot be commenced until such time as there is an actual dispute with regard to the payment of the benefits. The benefits were not overdue in light of the fact that the time within which to pay or deny the claim(s) of the plaintiff was extended pending the receipt of further verification. See: 11 NYCRR Section 65.15(h). The First Cause of Action is dismissed.

Also on point is New York Presbyterian Hosp. v. American Transit Ins. Co., 233 AD2d 431, 650 N.Y.S.2d 258 (2nd Dept 2001).

CONCLUSION

Based upon the foregoing, the plaintiff’s action was filed prematurely because plaintiff had failed to properly respond to the defendant’s verification requests. The decision of this Court dated June 29, 2004, is vacated in light of the above. The plaintiff’s action is dismissed. Thus, the plaintiff’s cross motion is denied.

So ordered:

DISTRICT COURT JUDGE

Dated:March 22, 2005

CC:

[*1]

District Court of Suffolk County, Third District, December 23, 2004

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiffs. Carman, Callahan & Ingham, Farmingdale (James M. Carmen and Jason Tenenbaum of counsel), for defendants.

{**6 Misc 3d at 649} OPINION OF THE COURT

Toni A. Bean, J.

{**6 Misc 3d at 650}A hearing was held on November 19, 2004 to address certain ethical concerns raised by irregularities in the papers submitted by plaintiffs’ counsel in the above-captioned actions, as set forth in this court’s interim memorandum decision and order dated October 28, 2004. Edward Shapiro and his associate Jason Moroff appeared at the hearing as directed, as well as counsel for the defendants.

The plaintiffs, represented by Edward Shapiro and his law firm, have moved for summary judgment in each of these seven actions for assigned first-party no-fault benefits. Each of the plaintiffs’ motions for summary judgment contains an affirmation by Edward Shapiro in which Mr. Shapiro affirms that the plaintiff’s “bills” were mailed on a particular date by “Edward Shapiro, Attorney at Law.” This affirmation has been offered to establish the timely mailing of each plaintiff’s no-fault claim as part of that plaintiff’s prima facie case.

In response to Mr. Shapiro’s affirmation, defendants Progressive Northeastern Insurance Company and General Assurance Co. have cross-moved for summary judgment and to disqualify Edward Shapiro as attorney for the plaintiffs under the witness-advocate rule, set forth at Disciplinary Rule 5-102 of the Code of Professional Responsibility (22 NYCRR 1200.21), on the ground that Mr. Shapiro’s testimony is necessary to establish a material element of each plaintiff’s cause of action.

The matter was set down for a hearing after it was noted that there were obvious differences in the signatures of Mr. Shapiro and his associate, Mr. Moroff, in papers filed with the court, and that affirmations submitted by Mr. Shapiro and Mr. Moroff contained patently contradictory and misleading language. Specifically, Mr. Shapiro’s affirmations in support of summary judgment indicated that he personally mailed each plaintiff’s no-fault claim, while Mr. Moroff’s affirmations opposing disqualification stated that a nonlawyer employee of the law firm submitted the claims and that “at no time does an attorney submit the bills to the insurance carrier.” These irregularities are of particular concern given the fact that Mr. Shapiro’s law firm has commenced hundreds of actions in the Third District Court on behalf of medical providers for assigned first-party no-fault benefits, and has brought similar motions for summary judgment in many of those actions. The stated purpose of the hearing was to determine whether counsel’s actions constituted sanctionable conduct under 22 NYCRR 130-1.1 (a).{**6 Misc 3d at 651}

At the hearing, both Mr. Shapiro and Mr. Moroff stated that the plaintiffs’ bills were not actually mailed by Mr. Shapiro, but by a representative of the firm. It was their contention that, at the time the bills were mailed to the carriers, the name of the firm was “Edward Shapiro, Attorney at Law.” In January of 2004, the firm’s name [*2]was changed to “Edward Shapiro, P.C.” Both maintained that the office inadvertently failed to change the template on the attorney’s “Affirmation” of mailing to read “Bills were sent . . . by Edward Shapiro, P.C.” Counsel for the plaintiffs contend that it was not their intent to deceive the court and expressed their apologies if that impression was given.

Although it is Mr. Shapiro’s assertion that it was not his intent to deceive the court as to who actually mailed the claims to the carriers, after reviewing the testimony of both Mr. Moroff and Mr. Shapiro, this court is constrained to conclude otherwise. It is this court’s opinion that Mr. Shapiro engaged in a pattern of behavior which can only be characterized as a deliberate attempt to mislead the court. Each affirmation in support of the motions for summary judgment sets forth the elements for establishing a prima facie case for a no-fault claim. The inclusion of the affirmation of mailing in each of these cases conclusively establishes the awareness by counsel that such documentation was an important element in determining whether summary judgment was appropriate. Moreover, it is inconceivable that Mr. Shapiro, whose practice involves substantial work in the no-fault field, was unaware that an affirmation or affidavit of mailing must be submitted by the person who actually did the mailing. (See, e.g., Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 9th & 10th Jud Dists 2004]; Oceanside Med. Healthcare, P.C. v Progressive Ins., NYLJ, May 23, 2002, at 22, col 4; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290-291 [2000].)

The assertion that it was not their intent to deceive this court is further unbelievable upon this court’s review of Mr. Moroff’s affirmation in MZ Dental, Inc. v Progressive Northeastern Ins. Co. The affirmation of mailing by Mr. Shapiro states that the bills were mailed by “Edward Shapiro, Attorney at Law.” Mr. Moroff in his affirmation states: “In this instance Edward Shapiro, P.C. did not submit the bill in question” (emphasis added). However, in paragraphs 12 and 13, it states that an employee of their office mailed the bill. In raising these arguments in opposition to disqualifying Edward Shapiro, Esq. as attorney for plaintiff, {**6 Misc 3d at 652}it would stand to reason that his reference in paragraph 6 to “Edward Shapiro, P.C.” is in fact Edward Shapiro, Esq.

Notwithstanding the protestations of Mr. Moroff and Mr. Shapiro to the contrary, the language utilized by Mr. Shapiro, i.e., that the bills were mailed by “Edward Shapiro, Attorney at Law,” can only be construed as a representation that Mr. Shapiro personally mailed the bills. There can be no doubt that the statements purportedly made by Mr. Shapiro in these “affirmations” were deliberately false.

Equally disturbing to this court is Mr. Shapiro’s admission that none of the documents purportedly executed by Mr. Shapiro were, in fact, executed by him. Clearly, Mr. Shapiro cannot once again contend [*3]that it was not his intent to deceive the court. Pursuant to the Rules of the Chief Administrator of the Courts, all documents prepared by counsel that are “served on another party or filed or submitted to the court shall be signed by an attorney” (22 NYCRR 130-1.1a [a]). There was not a single excuse or good cause offered by counsel for his failure to execute any of these documents. Mr. Moroff similarly admitted that on at least two occasions he instructed someone else to sign his name to documents submitted to the court even though he was present in the office.

The original signature by counsel is intended to certify that the presentation of the papers or the contents contained therein are not frivolous. (See, 22 NYCRR 130-1.1a [b].) The purported unintended error in the attorney affirmation of mailing may be considered a mistake or an inadvertent error on the first few submissions of these similar motions. However, had counsel reviewed the moving papers, the error would have or should have been detected and corrected. The acknowledgment that the error was only corrected most recently, after this hearing was ordered, demeans the integrity of this court and the profession. The methods practiced by Mr. Shapiro and Mr. Moroff strongly suggest a greater interest in their own monetary benefit than in the integrity of the documents submitted.

Finally, Mr. Moroff and Mr. Shapiro contend that whether the affirmation of mailing satisfies a requirement of their prima facie case is no longer at issue once the carrier acknowledges receipt of the bill on the NF-10 denial of claim form. In support of their argument reference is made to the case of A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists 2004]).{**6 Misc 3d at 653}

Recognizing the court’s holding in A.B. Med. Servs., the finding therein is not applicable to at least three of the seven matters herein. In the cases of Olmecs v Progressive, Olmecs v General Ins. Co. and Olmecs v Progressive, an NF-10 was not contained in the moving or opposing papers. Accordingly, the plaintiff was required to make out a prima facie case in the first instance. However, as admitted by counsel, the affirmation of mailing was not executed by the person who actually mailed the bills. The plaintiff has therefore not established a prima facie case in these matters. In addition, the supporting affirmation of mailing was not actually executed by counsel.

In any event, such arguments are not relevant to the court’s concerns regarding counsel’s pattern of misrepresentation. An attorney, as an officer of the court, has an ongoing professional duty to state the truth in papers filed with the court. (See, Advisory Comm Notes, reprinted following NY Cons Laws Serv, Book 4C, CPLR 2106, at 440.) In acknowledgment of the attorney’s awareness of this duty and of the consequences for making a false statement, CPLR 2106 authorizes the attorney to simply sign his or her own statement [*4]and to affirm its truth subject to the penalties of perjury. Such affirmation has the same effect as an affidavit sworn to before a notary public. (See, V. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2106.)

An “affirmation” of an attorney which has not been signed by the attorney is of no force and effect. (See, Matter of American Sec. Ins. Co. v Austin, 110 AD2d 697 [2d Dept 1985].) Moreover, an affidavit purported to be that of one person, but signed by another is worthless and a nullity. (See, A.B. Med. Servs. PLLC v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists 2004]; Reboul, MacMurray, Hewitt, Maynard & Kristol v Quasha, 90 AD2d 466, 466 [1st Dept 1982], citing 1 NY Jur 2d, Acknowledgments, Affidavits, Oaths, Notaries and Commissioners § 58, at 257.) A falsely subscribed attorney’s affirmation is not only worthless, but may be sanctionable as well. (See, e.g., Park Health Ctr. v Country Wide Ins. Co., 1 Misc 3d 906[A], 2003 NY Slip Op 51529[U] [Civ Ct, Queens County 2003].)

In the court’s opinion, the failure of counsel to sign the affirmations filed with this court in each of these seven actions, without good cause shown, nullifies the motions. (See, 22 NYCRR 130-1.1a.) Plaintiffs’ motions for summary judgment are accordingly denied.{**6 Misc 3d at 654}

Similarly, in each of the actions the original summons and complaint, as admitted by counsel, does not bear his true signature. The fraudulent signatures offered by counsel in feigned compliance with the requirements of 22 NYCRR 130-1.1a are part of the pattern of deceptive practices engaged in by Mr. Shapiro and Mr. Moroff which has prejudiced the defendants in these actions. The court in its memorandum decision in these actions dated October 24, 2004 apprised Mr. Shapiro and Mr. Moroff of the differences in attorney signatures. This irregularity was one of the issues for which the hearing was scheduled. With full knowledge of the false signatures on the summonses and complaints, there was never an attempt or offer to correct the signatures in each action. Consequently, the complaint in each action shall be dismissed without prejudice. (See, 22 NYCRR 130-1.1a [a].) The cross motions are thereby moot.

Viewing the actions in totality, this court finds the actions of Mr. Shapiro and Mr. Moroff to be sanctionable under 22 NYCRR 130-1.2. Despite the comments by Mr. Moroff and Mr. Shapiro, these actions demonstrate an intent to deceive the court and their adversaries. Material factual statements were falsely presented to this court. This conduct is deemed frivolous and sanctionable. The egregious actions by counsel cannot be ignored. A total fine of $35,000 ($5,000 for each action) is hereby assessed against counsel for the plaintiffs to be paid to the Lawyers’ Fund for Client Protection, 119 Washington Avenue, Albany, New York 12210.