Decided on March 16, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim underlying plaintiff’s third cause of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant is not entitled to summary judgment dismissing plaintiff’s third cause of action.

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s remaining causes of action, defendant submitted affidavits from a number of its employees. The affidavits set forth that envelopes containing the underlying NF-10 denial of claim forms were picked up by third-party mailing services to be taken to the post office. However, defendant failed to demonstrate the existence of a standard office practice and procedure utilized by the third-party mailing services so as to given rise to a presumption that the envelopes had been mailed (see Health Needles Acupuncture, P.C. v United Servs. Auto. Assn., 39 Misc 3d 134[A], 2013 NY Slip Op 50537[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant was not entitled to summary judgment dismissing plaintiff’s remaining causes of action.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 2, 2015

APPEARANCES OF COUNSEL

Fuld & Karp, P.C., Brooklyn (Cheryl Scher of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment, finding that defendant demonstrated that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

It is undisputed that plaintiff’s patient, the assignor herein, initially granted plaintiff the right to bill defendant and receive direct no-fault payments from defendant by executing an “authorization to pay” on a prescribed NF-3 form, and that he executed a prescribed assignment of benefits in favor of plaintiff at a later date. Plaintiff’s main argument on appeal is that, because plaintiff was not the eligible injured person’s (EIP’s){**47 Misc 3d at 74} assignee at the time plaintiff submitted the NF-3 forms to defendant, the language in the mandatory personal injury protection (PIP) endorsement (11 NYCRR 65-1.1 [d] [Section I, Conditions, Proof of Claim]), which requires “the eligible injured person or that person’s assignee or representative” to “submit to examinations under oath,” did not require plaintiff to submit to an EUO, and, thus, defendant’s proffered defense, that plaintiff failed to appear for duly scheduled EUOs, lacks merit. In our view, the Civil Court properly rejected this argument, as we find that, pursuant to the regulations, both the recipient of an assignment of benefits and the recipient of an authorization to pay are required to submit to a duly scheduled EUO.

11 NYCRR 65-3.11 (a) states that an insurer shall pay benefits to an EIP “or, upon assignment by the applicant [or the applicant’s parent or legal guardian or any person legally responsible for necessities], shall pay benefits directly to providers of health care services.” 11 NYCRR 65-3.11 (b) provides two ways in which a health care provider can receive direct payment from the insurer—by submitting an “authorization to pay benefits as contained on NYS form NF-3, NF-4 or NF-5” (hereinafter prescribed authorization), or by submitting an assignment of benefits on an NF-3, NF-4, NF-5 or form NF-AOB (hereinafter prescribed assignment) (11 NYCRR 65-3.11 [b] [1], [2]). The prescribed authorization specifically states that the EIP retains “all rights, privileges and remedies” under the No-Fault Law; in contrast, the prescribed assignment states that such “rights, privileges and remedies” are assigned to the health care provider (which allows the provider to commence an action against the insurer to recover no-fault benefits). While the regulations clearly specify that a prescribed authorization and a prescribed assignment are different with respect to whether there is a transfer of rights, there is nothing in the prescribed assignment or prescribed authorization, both of which require the signatures of the EIP and the provider in order to be properly executed, differentiating between the two with respect to the EIP’s obligations (such as the requirement to submit to an EUO). Furthermore, in the provision dealing with direct payments to a health care provider, the regulations seem to conflate the prescribed assignment and the prescribed authorization. While an insurer is required to pay benefits directly to a provider “upon assignment by the applicant” pursuant to 11 NYCRR 65-3.11 (a), the word “assignment” in this context is not limited to a prescribed{**47 Misc 3d at 75} assignment, and indeed includes a prescribed authorization, since, pursuant to 11 NYCRR 65-3.11 (b), a provider demonstrates such “assignment” by submitting either a properly executed prescribed authorization or a properly executed prescribed assignment. Inasmuch as an “assignee” clearly must submit to an EUO, the regulations should be read to impose this obligation upon the recipient of both a properly executed prescribed authorization and a properly executed prescribed assignment.

Even if we did not find that a prescribed authorization falls within the umbrella of the word “assignment” as used in 11 NYCRR 65-3.11 (a), we would still hold that the recipient of an authorization to pay is obligated to submit to an EUO. This is because, in addition to requiring the EIP or that person’s assignee to submit to an EUO, the PIP endorsement also obligates the EIP’s representative to submit to an EUO. Written proof of claim may be submitted to an insurer by the EIP’s representative (see 11 NYCRR 65-1.1), and the recipient of a properly executed prescribed authorization who submits proof of claim is clearly acting as the EIP’s representative under those circumstances since the EIP retains “all rights, privileges and remedies.” Accordingly, plaintiff, as the entity which submitted the claim forms to defendant, was obligated to submit to an EUO whether such entity be viewed as its patient’s assignee or as his representative.

Plaintiff’s remaining argument is improperly raised for the first time on appeal. It is, in any event, without merit (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

[*1]

Mura & Storm, PLLC, Buffalo, N.Y. (Roy A. Mura of counsel), for appellant.

Gregory W. Bagen, Brewster, N.Y., for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Putnam County (Nicolai, J.), entered August 16, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $210,587.30, comprising $72,000 in principal arrears and $138,587.30 in accrued compound interest. Justice Rivera has been substituted for former Justice Angiolillo, Justice Skelos has been substituted for former Justice Belen, and Justice Dillon has been substituted for former Justice Lott (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff compound interest in the sum of $138,587.30; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith, and the entry of an appropriate amended judgment thereafter.

On August 9, 2004, Sharon Heidei, also known as Sharon Rollman (hereinafter the decedent) was injured in an automobile accident. On November 13, 2004, the decedent filed a claim with the defendant, Hereford Insurance Company, to recover for basic economic loss and additional personal injury protection benefits. The defendant thereafter disclaimed coverage. On October 17, 2008, the decedent commenced this action, seeking to recover those benefits. On August 16, 2010, after a nonjury trial, the Supreme Court entered a judgment in favor of the decedent and against the defendant. The defendant appeals.

On October 28, 2011, approximately one month after oral argument on this appeal was heard, the decedent died, and the matter was stayed by operation of CPLR 1021, pending substitution of the decedent’s personal representative. In 2012, the defendant petitioned the Surrogate’s Court, Putnam County, to appoint an administrator of the decedent’s estate. On July 9, 2014, the Surrogate’s Court granted the defendant’s petition, and appointed Putnam County Commissioner of Finance William J. Carlin, Jr., as the administrator of the decedent’s estate. By decision and order dated November 21, 2014, this Court granted the defendant’s motion to substitute Carlin as the respondent in place of the decedent, and lifted the stay. Pursuant to the terms of that order, the appeal was subsequently deemed to have been submitted on the original briefs.

Since three of the four justices who heard oral argument were no longer on the bench [*2]when the stay was lifted, three other justices of this Court have been substituted for them (see 22 NYCRR 670.1 [c]).

In connection with policies of automobile insurance, Insurance Law § 5102 (d) defines “basic economic loss” as up to $50,000 per person for combined expenses incurred by a covered person as a consequence of an automobile accident for medical, hospital, surgical, dental, and similar charges, loss of earnings, and other reasonable and necessary expenses. Insurance Law § 5103 (a) mandates that all automobile insurance policies written in New York provide for such coverage, commonly known as no-fault coverage. The defendant’s contention that, in light of the nature of the underlying accident, the plaintiff was not a covered person under the no-fault provisions of the subject automobile insurance policy is not properly before this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Moreover, this defense does not raise a pure question of law apparent on the face of the record that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $50,000 in unpaid basic no-fault benefits.

The automobile insurance policy issued by the defendant also provided optional additional personal injury protection, with limits of $150,000, for covered persons who sustained extended economic loss as a consequence of an automobile accident. This coverage is commonly known as excess no-fault coverage. The defendant failed to preserve for appellate review its contention that the plaintiff was ineligible for coverage under the additional personal injury protection provisions of the subject policy since, at trial, it made no reference to the governing insurance regulations, nor did it request that the Supreme Court take judicial notice thereof (see CPLR 4511 [b]; cf. Matter of Damian M., 41 AD3d 600 [2007]; Matter of Olympia Victoria R., 261 AD2d 191 [1999]). The defendant’s contention on appeal that the plaintiff was ineligible for excess no-fault coverage does not raise a pure question of law that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]; cf. Block v Magee, 146 AD2d 730, 732-733 [1989]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $22,000 in unpaid excess no-fault benefits.

Although the defendant also failed to raise before the Supreme Court its contention that the court erred in applying compound interest accruing at 2% per month to the unpaid no-fault benefits (see CPLR 4017; cf. Corsi v Town of Bedford, 58 AD3d 225, 228 [2008]), we review this issue on appeal because it presents a pure question of law that could not have been avoided if brought to the Supreme Court’s attention at the proper juncture (see Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700, 701 [2011]; Block v Magee, 146 AD2d at 732-733). The Supreme Court erred in awarding compound interest, since the pertinent New York insurance regulations provide for the accrual of simple interest on improperly withheld no-fault benefits at a rate of 2% per month (see 11 NYCRR 65-3.9 [a]; Insurance Law § 5106 [a]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]).

Accordingly, we remit this matter to the Supreme Court, Putnam County, for the recalculation of the interest accrued on the award of the principal sum of $72,000 in unpaid no-fault benefits, by applying simple interest at the rate of 2% per month, from January 15, 2005, through July 15, 2010, and the entry of an appropriate amended judgment thereafter. Mastro, J.P., Rivera, Skelos and Dillon, JJ., concur.