SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), entered January 9, 2008. The order, insofar as appealed from, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). In support of its cross motion, defendant submitted, inter alia, an affidavit of an employee of Independent Physical Exam Referrals, Inc. (IPER), the company which scheduled the IMEs. The District Court granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues only that defendant’s cross motion for summary judgment should have been denied because the affidavit executed by IPER’s employee was insufficient to establish that defendant’s request and follow-up request for an IME were mailed to plaintiff’s assignor.

Contrary to plaintiff’s contentions, the affidavit submitted by defendant was sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed to plaintiff’s assignor (see Chi Acupuncture, P.C. v Kemper Auto & Home Insurance Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is affirmed.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur. [*2]
Decision Date: February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 21, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,217.50.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, inter alia, that there was an issue of fact as to the medical necessity of the supplies furnished by plaintiff. By order dated August 22, 2007, the court granted plaintiff’s motion for summary judgment. Judgment was subsequently entered pursuant to the order. The instant appeal by defendant ensued.

On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d [*2]44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered October 29, 2007. The order, insofar as appealed from, denied plaintiff’s motion to, inter alia, compel the deposition of defendant.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the date of the order entered hereon.

In this action to recover assigned first-party no-fault benefits, plaintiff moved to, inter alia, compel the deposition of defendant. Defendant failed to oppose plaintiff’s motion or to seek a protective order. Accordingly, the motion should have been granted to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110, 112 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered September 4, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack
of medical necessity. In opposition, plaintiff asserted, inter alia, that defendant did not establish that the subject denial of claim form was timely mailed. The court granted defendant’s motion. This appeal by plaintiff ensued.

The affidavit submitted by defendant’s litigation examiner failed to establish that defendant timely mailed its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed, since it merely stated that the denial of claim form was mailed and did not sufficiently set forth the steps which comprise defendant’s mailing practices and procedures (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). [*2]Accordingly, the order granting defendant’s motion for summary judgment is reversed and defendant’s motion is denied.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: February 11, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 5, 2007. The order denied defendant’s motion for summary judgment.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services allegedly rendered to plaintiff’s assignor lacked medical necessity. Although the Civil Court found that defendant had timely denied the claims, the court denied defendant’s motion, apparently on the ground that the independent chiropractic examination report, upon which defendant had based its denials, was not in admissible form, notwithstanding the accompanying affidavit executed by the chiropractor. This appeal by defendant ensued.

Defendant demonstrated that it had timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant’s independent chiropractic examination report, together with the affidavit of the chiropractor, provided a factual basis and medical rationale for the chiropractor’s [*2]opinion that the services rendered were not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff failed to present any evidence to refute that showing, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; A. KhodadadiRadiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 09, 2009

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants.

Huenke & Rodriguez, Melville, N.Y. (Christopher C. Vassallo of counsel), for respondent.

In an action to recover no-fault medical benefits under insurance contracts, the plaintiffs St. Vincent’s Hospital & Medical Center and Mount Sinai Hospital appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated September 5, 2008, which denied the motion of the plaintiff St. Vincent’s Hospital & Medical Center to hold the defendant in contempt for failure to comply with an information subpoena, and granted the defendant’s cross motion, inter alia, to vacate a judgment of the same court entered January 24, 2008, upon its default in appearing or answering the complaint, which was in favor of the plaintiff St. Vincent’s Hospital & Medical Center and against the defendant in the principal sum of $72,721.53.

Ordered that the appeal by the plaintiff Mount Sinai Hospital is dismissed, as it is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed on the appeal by the plaintiff St. Vincent’s Hospital & Medical Center; and it is further,

Ordered that one bill of costs is awarded to the defendant payable by the plaintiff St. Vincent’s Hospital & Medical Center.

Under the circumstances of this case, the Supreme Court properly exercised its discretion in [*2]vacating the default judgment (see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]; see also DeStaso v Bottiglieri, 52 AD3d 453 [2008]). The remaining contentions of the plaintiff St. Vincent’s Hospital & Medical Center are without merit (see CPLR 3211 [a] [1]; Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]), or not properly before this Court. Santucci, J.P., Angiolillo, Belen and Chambers, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Stewart H. Friedman (John T. Ryan and Robert F. Horvat of counsel), for respondents.

In an action to recover no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated August 5, 2008, which granted the defendants’ motion, inter alia, to vacate a judgment of the same court entered April 10, 2008, upon the defendants’ default in appearing and answering the complaint, in favor of the plaintiff and against the defendants in the principal sum of $16,571.91.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a judgment entered upon its default in appearing and answering the complaint must demonstrate a reasonable excuse for its delay in appearing and answering, as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]). Here, the defendants established that their employee reasonably believed that the action had been discontinued after she advised the plaintiff’s counsel’s office that no-fault benefits had been exhausted, thereby demonstrating a reasonable excuse for the short period of time in which they failed either to appear or to answer the complaint (see New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 554-555 [2005]). In addition, the defendants established that the policy limits had been partially exhausted through the payment of claims for prior services (see 11 NYCRR 65-3.15; Nyack [*2]Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 301 [2007]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 772 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528, 528-529 [2006]), thereby demonstrating the existence of a potentially meritorious defense to the action. Finally, the plaintiff did not demonstrate prejudice from the defendants’ relatively short delay in appearing and answering, and public policy favors the resolution of cases on the merits (see Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673). Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was to vacate the judgment (see St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 42 AD3d 525 [2007]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442, 443 [2006]; New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d at 555; cf. New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511 [2006]).

The plaintiff’s remaining contentions are without merit. Spolzino, J.P., Covello, McCarthy and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), entered July 24, 2006, deemed from a judgment of the same court entered September 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 31, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,970.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant contends that plaintiff failed to establish a prima facie case because plaintiff did not allege that defendant’s denial of claim forms were untimely. This contention
lacks merit since a plaintiff provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Payments are overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]). In the instant case, inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the court’s determination with respect thereto.

To the extent that defendant sought to demonstrate the existence of an issue of fact as to the medical necessity of the services rendered, the affidavit of defendant’s claims representative neither established actual mailing of the denials nor gave rise to a presumption that they were mailed because it did not set forth the standard office practice or procedure designed to ensure that items are properly addressed and mailed which was utilized in the office from which the subject denial of claim forms were allegedly mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, defendant is precluded from raising its proffered defense of lack of medical [*2]necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Consequently, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: January 26, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 27, 2006. The judgment, entered pursuant to an order granting defendant’s motion to dismiss the complaint and denying, as academic, plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126, dismissed the complaint and awarded defendant attorney’s fees and costs totaling $6,904.

Judgment reversed without costs, so much of the order as granted the branches of defendant’s motion which sought to dismiss the causes of action seeking to recover the sum of $593.94 for services allegedly provided by Dr. Patricia D’Imperio on April 5,
1999 and April 19, 1999, and the sum of $188.39 for services allegedly provided by Franklin Immediate Medical Care, P.C. on January 12, 1999, and so much of the order as awarded costs and attorney’s fees to defendant, vacated, the branches of defendant’s motion seeking dismissal of the aforesaid causes of action denied, and matter remanded to the court below for determination de novo of plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126.

Plaintiff commenced this action to recover the sum of $25,000, representing first-party no-fault benefits for medical expenses she allegedly incurred after she was injured in an automobile accident on November 9, 1998. The Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and awarded defendant attorney’s fees, finding that plaintiff had assigned her rights to collect no-fault benefits, and that, in any event, [*2]she did not plead or prove that she had paid her providers for the bills upon which she was suing, and did not demonstrate that payment was overdue. The court denied, as academic, plaintiff’s cross motion seeking to strike defendant’s answer pursuant to CPLR 3126. Judgment was entered, and plaintiff now appeals.

Defendant argued in its motion to dismiss (1) that plaintiff failed to state in her complaint that “a complete and proper proof of claim was submitted to the insurance company and the Insurance Company failed to pay or deny the claim within thirty (30) days,” (2) that defendant has no record of having received any notices of claims being made by plaintiff or documentation from plaintiff evidencing her out-of-pocket expenses
or direct payments to providers, and (3) that plaintiff lacks standing to sue because she has assigned all of her rights under the policy of insurance. We note that plaintiff is not required to prove that she issued payment for treatment (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

In opposition to defendant’s motion, plaintiff submitted, inter alia, NF-10 denial of claim forms, allegedly issued by defendant, denying claims for services rendered to plaintiff, submitted by Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., All County Open MRI & Diagnostic Radiology, and Dr. Patricia D’Imperio. To the extent that plaintiff seeks payment of the claims identified in her bill of particulars other than those submitted by these four providers, we find at the outset that plaintiff failed to defeat defendant’s CPLR 3211 (a) (7) motion (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530, 530 [2007] [where evidence is submitted on a CPLR 3211 [a] [7] motion to dismiss, the court may consider whether the plaintiff has a cause of action, rather than whether it has stated one]) by a showing that said claims were in fact submitted to defendant and that defendant failed to pay them within 30 days (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Where a provider commences suit to recover first-party no-fault benefits, the submission of an NF-10 denial of claim form, while not sufficient on its own to make out a no-fault provider’s prima facie case on its motion for summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), does establish prima facie that the insurer received the claims referenced therein as having been submitted by the provider (see e.g. Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), and that the insurer did not pay the claim. Accordingly, the submission of denial of claim forms must be deemed sufficient to defeat a CPLR 3211 (a) (7) motion to dismiss a provider’s action in which the defendant argues that the provider failed to allege that a claim was submitted and not paid within 30 days. The question before this court is whether, as in the instant case brought by the eligible injured person (EIP), the demonstration that an insurer received a claim from a provider for services rendered to such EIP, and that the claim was not paid, is sufficient to show that the plaintiff EIP has a cause of action for payment of that claim so that the insurer’s CPLR 3211 (a) (7) motion to dismiss should be denied.

The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance [*3]
Department Regulations [11 NYCRR] § 65-3.11 [a]). In the absence of an assignment, a claim submitted by a health care provider must be deemed to have been submitted on behalf of the individual who has the right to be paid under the no-fault regulations. An insurer seeking dismissal pursuant to CPLR 3211 (a) (7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment.

Defendant proffered documents that, it claims, demonstrate that plaintiff assigned her claims under the no-fault regulations to Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology. Defendants did not submit any documentation purporting to demonstrate that plaintiff assigned her claims for any services rendered by Dr. Patricia D’Imperio. As plaintiff demonstrated that claims totaling $593.94 were submitted by Dr. D’Imperio for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

On the other hand, defendant submitted documents that clearly assign plaintiff’s claims for services rendered by Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology to those providers, respectively. As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211 (a) (7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.

Defendant argues that the claim submitted by Franklin Immediate Medical Care, P.C., should be dismissed because plaintiff assigned that claim as well. We disagree. The document signed by plaintiff states:
“I hereby authorize payment directly to the above named medical provider of the automobile no-fault benefits otherwise payable to me but not to exceed the balance due of the medical provider’s permissible charges under Article 18 of the Insurance Law for services rendered. I understand that I am financially responsible to the medical doctor for charges not covered by this authorization and permitted under Article 18.”
Such an authorization is specifically addressed by the current no-fault regulations, which state that the “[e]xecution of an authorization to pay benefits shall not constitute or operate as a transfer of all rights from the eligible injured person to the provider” (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [1], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]). An assignment, pursuant to the current regulation, must state that it assigns “all rights, privileges and remedies” to the assignee (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [2], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]; Insurance [*4]Department Regulations Appendix 13 [NYS Form NF-3, NF-4, NF-5, NF-AOB]). Under the clear and unambiguous language of the current regulations, the above-quoted document is not an assignment. However, this language was added on December 31, 2001, and therefore was not in effect during the relevant time periods involved herein. Nevertheless, assignment language must show “the intention of the owner of a right to transfer it” (Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 612 [2004]), and we find that the document executed by plaintiff does not show her intention to transfer her rights under the No-Fault Law to Franklin Immediate Medical Care, P.C. As plaintiff demonstrated that a claim in the amount of $188.39 was submitted by Franklin Immediate Medical Care, P.C. for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

In view of the foregoing, the court below improperly awarded defendant attorney’s fees, as plaintiff has demonstrated that she has a cause of action and this litigation cannot be deemed frivolous (see Rules of the Chief Administrator [22 NYCRR] § 130-1.1).

Inasmuch as the lower court denied plaintiff’s cross motion to strike the answer pursuant to CPLR 3126 as academic in light of its dismissal of the complaint, the matter is remanded to the court below for a determination de novo of said cross motion.

Pesce, P.J., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment in the following memorandum:

In the first instance, it should be understood that plaintiff is an individual who was involved as a pedestrian in an automobile accident which occurred on or about November 9, 1998. As a result of that accident, Ms. Lopes sought a variety of medical treatments, and consequently she executed documents which, at the very least, authorized each of the providers of those health care treatments to obtain payment directly from the responsible no-fault insurance carrier.

Those health care providers who had rendered treatment to Ms. Lopes without receiving payment from her then submitted claims to the no-fault insurance carrier. Each of those claims was denied. The reason for the denial was the insurance carrier’s assertion that the eligible injured person, Ms. Lopes, failed to submit to independent medical examinations on four separate occasions. Some of those health care providers nevertheless commenced legal proceedings seeking payment.

Ms. Lopes also commenced her own direct action, the instant action, against the no-fault insurance carrier, demanding the payment of $25,000 for no-fault benefits and $20,000 for legal fees. In support of her claims, she submitted a bill of particulars purporting to establish bills for treatment that amount to slightly more than $4,500. There is no explanation as to how she or her attorney arrived at a $25,000 demand based upon approximately $4,500 of unpaid bills.

I note at the outset that in opposition to defendant’s motion to dismiss pursuant to CPLR 3211 (a) (7), plaintiff’s counsel asserted that various “documents” were attached to his affirmation when, in fact, they either were not attached at all, or, if attached, consisted of [*5]photocopies that are completely blacked out and therefore unreadable. Additionally, several purported bills that were attached to the bill of particulars did not include the service date in the photocopy submitted, or were simply handwritten pieces of paper and were not presented on a medical provider’s letterhead.

It is for these reasons and all of the facts within that I find it perfectly understandable why the motion court exercised its discretion in awarding counsel fees in favor of defendant in the sum of $6,904. Indeed, even a cursory reading of the majority opinion shows that, at best, plaintiff’s cause of action seeking $25,000 in compensatory damages and $20,000 in legal fees should be dismissed for failing to state a cause of action except for claims for $593.94 and $188.39, which amounts to a total of $782.33 out of $25,000. Indeed, those items are only allowed after a detailed analysis of the differences between an “authorization” and an “assignment,” a distinction plaintiff was clearly unaware of inasmuch as she demanded payment as to both. The majority’s finding that a claim filed by the provider for payment to it (the provider) may be deemed as a claim filed by the pro se plaintiff is unrealistic.

Here, the cause of action, as stated by Ms. Lopes in her complaint, contains the following facts she alleges establishes her claim:
“6. …The policy of insurance issued by defendant LIBERTY INSURANCE COMPANY, provided for payment of so-called no-fault benefits…’
7. The plaintiff was a pedestrian.
8. That plaintiff was involved in a no-fault’ accident on November 9, 1998 when the vehicle…insured by said defendant…was involved in a motor vehicle accident.
9. That solely as a result of that no-fault’ car accident, plaintiff sustained personal injuries.
10. That as a result…plaintiff sought hospital expenses, medical bills, loss of earnings…
11. That the defendant LIBERTY INSURANCE COMPANY has refused to pay and/or reimburse plaintiff for plaintiff’s hospital expenses, medical bills …”

I have included this reproduction of plaintiff’s complaint to emphasize the fact that there is no mention of any notice of claim being filed with the insurance carrier seeking payment. It certainly was not due to an understandable ignorance of the law or some oversight as occurs in complaints drafted by pro se litigants. Specifically, this complaint was drawn by an attorney. However, such fact is not of much significance. I submit the reason that there was no mention that a claim was filed by Ms. Lopes is simple: Ms. Lopes did not file any claims. [*6]

This failure, in and of itself, should prove to be fatal to the maintenance of this complaint.

Notwithstanding the foregoing, however, and for reasons to which I cannot subscribe, the majority herein finds that plaintiff not only does not have to assert this most elemental aspect of a no-fault cause of action, but also that plaintiff need not actually file the claim at all. While I have noted my disagreement therewith, both this Appellate Term and the Appellate Division, Second Department, have held that a plaintiff in a no-fault action need not provide any proof as to the validity of a claim (Uptodate Med. Servs., P.C. v Lumbermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists and dissenting op of Golia, J., 2008]; see e.g. Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The minimum requirement set by these courts is that a plaintiff need only make two assertions:

1) That a claim was filed, and

2) That payment is overdue.
By the holding in this case, the majority now provides that a plaintiff need only make one assertion, to wit, that payment is overdue. The majority reasons that it then can search the record and determine if any claim was filed. Indeed, the claim does not even have to come from the plaintiff, who is presumably seeking payment for the claim. It is now sufficient if the plaintiff’s medical provider has filed a claim, even though the claim was filed by the medical provider on its own behalf and not on behalf of the plaintiff.

For me, it is remarkable to find that an individual can commence an action for the nonpayment of a claim that the individual never submitted. Indeed, the individual may not even know whether any claim was ever submitted and certainly does not know when it was submitted or what information was included in the claim form. Further, I do not understand how the majority reaches the conclusion that the NF-10 denial of claim form by the insurance company relates to a certain claim of which plaintiff is unable to assert any knowledge.

Nevertheless, by implication, the majority’s ruling in effect will serve as a predicate for defendant insurer to be exposed to two lawsuits for the same claim, a claim that was denied here due to plaintiff’s refusal to submit to no less than four medical examinations by defendant’s doctor.In this case it is clear and not refuted that:

1. Ms. Lopes assigned (or authorized) her rights to receive payment to the medical providers;
2. She did not pay for any treatments;
3. She did not file any claims seeking payment for covered expenses;
4. She did not appear at any of the four independent medical examinations she was required to submit to as a condition precedent;
5. She or her attorney failed to annex certain exhibits that were stated to be annexed;
6. She or her attorney annexed obviously unreadable “blacked out” photocopies of other purported exhibits; and
7. Generally, she and her attorney filed a baseless action, as stated by the Court below.
All of the above occurred without plaintiff even knowing whether any claim was filed.

The majority, in support of its holding, asserts that pursuant to the regulations concerning “assignments” of benefits that were in effect at that time, there is a distinction to be made between a complete “assignment” of rights and a mere “authorization” to pay benefits directly to a provider.

As the majority has applied that proposition to this case, I disagree.

Instead, I am in accord with the reasoning of the Civil Court, Queens County case of Gingold v State Farm Ins. Co. (168 Misc 2d 62 [1996]), which relied on the 1981 Appellate Term, First Department case of Vasquez v Aetna Cas. & Sur Co. (NYLJ, Jan. 27, 1981, at 5, col 1). The Civil Court quoted the Appellate Term in Vasquez as stating, “We construe the hospital insurance form . . . authorizing payment directly to the hospital … as an assignment of first party benefits . . .” (Gingold, 169 Misc 2d at 64). The Gingold court went on to state that the assignee of a claim is the real party in interest and he alone can bring suit; the assignor loses control . . . when he makes the assignment” (id.).

In considering the import of the instant decision as it applies to the vast majority of auto accidents involving no-fault benefits, the typical eligible injured person seeks and obtains medical services shortly after the accident without any out-of-pocket expenses. The reason that the eligible injured person does not pay out-of-pocket expenses is that the medical provider, in general terms, accepts an “assignment” from its patient in lieu of payment. In other words, it is willing to provide medical services in expectation of subsequently receiving payment from the insurance carrier within 30 days of submission of the bill.

If the action by this plaintiff were to become commonplace, it would, I submit, ultimately lead to a medical provider’s refusing to provide medical treatment without first receiving immediate payment from the eligible injured person. If the provider did not require immediate payment, it may then subsequently discover that its patient, which it treated without immediate payment, has demanded and received payment from the insurance carrier for the services which the provider rendered. This is doubly troublesome in that, if medical providers refuse to provide treatment in exchange for an “assignment,” then the eligible injured person must not only pay up front, he/she must also seek reimbursement from the insurance carrier and comply with all the complex rules and regulations of the No-Fault Law.

It is also small comfort to the insurance company to know that after making payment to either the provider pursuant to the authorization or to the eligible injured person pursuant to the majority decision herein, that when it is sued by the one or the other upon nonpayment, it would have a valid defense of payment. Despite this valid defense, the lawsuit would nevertheless necessitate the opening of a litigation file by the insurance carrier with the associated expense of an employee’s time and loss of productivity; the insurance carrier would have to hire an attorney [*7]to answer the complaint and subsequently move for summary judgment with the associated expenses of attorney’s fees and court costs; it must also restrict and separately maintain certain of its liquid assets as a reserve against the file and even if the reserve is set at zero, it would nevertheless have to justify that to the Insurance Department at an audit — an unnecessary and protracted circumstance.

Further, I submit this could only lead to additional litigation, not only additional costs and fees associated with such litigation, but also increased insurance carrier rates vis-a-vis the public and, certainly, needless use of additional court resources, all of which negate the intended and speedy purpose of the No-Fault Law.

It is for all these reasons that I agree with and support the Civil Court’s granting of defendant’s motion to dismiss and its awarding defendant attorney’s fees and costs in the amount of $6,904 as against this plaintiff.

I vote to affirm.

Decision Date: January 26, 2009

[*1]

Second Department, January 20, 2009

Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 2007 NY Slip Op 34402(U), affirmed.

APPEARANCES OF COUNSEL

Stern & Montana, LLP, New York City (Richard Montana of counsel), for appellant.

Joseph Henig, P.C., Bellmore, for respondents.

{**61 AD3d at 14} OPINION OF THE COURT

Dillon, J.

We are asked to determine whether the definition of diagnosis and procedure codes adopted by the United States Department of Health and Human Services (hereinafter HHS) as part of its regulatory authority may be a proper subject for judicial notice under CPLR 4511. If so, we must also determine whether the defined diagnostic codes, in and of themselves, permit a finding that a patient’s hospital care and treatment is wholly outside the scope of no-fault automobile coverage. Until now, we are not{**61 AD3d at 15} aware of any appellate court that has addressed the issue of whether the diagnosis and procedure codes key of the United States government can be judicially noticed by courts, so that it may then be used to decipher no-fault billing forms.

I. Relevant Facts

On July 3, 2006, George Hafford was injured in an automobile accident and received treatment at the plaintiff White Plains Hospital Center (hereinafter White Plains Hospital) from [*2]the date of the accident until August 22, 2006. Hafford was insured by the defendant, Allstate Insurance Company (hereinafter Allstate), under an automobile liability insurance policy that contained a no-fault endorsement. White Plains Hospital rendered a bill for its services to Hafford in the total sum of $26,979.83. Hafford assigned to White Plains Hospital the right to seek reimbursement from Allstate for the amount billed.

On November 7, 2006, White Plains Hospital, as assignee of Hafford, mailed to Allstate by certified mail, return receipt requested, NF-5 and UB-92 forms demanding payment of the sum of $26,979.83. The UB-92 form contained code numbers to identify the diagnoses that had been made of Hafford’s conditions and the treatments provided to him in furtherance of the diagnoses. The delivery of the forms to Allstate on November 8, 2006 is not at issue. White Plains Hospital alleges that pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), Allstate’s payment of no-fault benefits became due on December 8, 2006, but Allstate failed to make payment or issue a denial of claim.

This action ensued. Allstate’s answer to the complaint set forth 11 affirmative defenses, including the “fourth” affirmative defense that the injuries for which Hafford received treatment did not arise out of the use or operation of an insured motor vehicle and, as such, are not covered by its policy of insurance.

The plaintiffs moved for summary judgment, submitting, in connection with the third cause of action asserted by White Plains Hospital, documentary evidence to establish the service by White Plains Hospital upon Allstate of the required billing documents for no-fault reimbursement and Allstate’s failure to either pay the claim or issue an appropriate denial. Allstate opposed the motion and, by cross motion, sought summary judgment in its favor dismissing the complaint. With respect to the third cause of action asserted by White Plains Hospital, Allstate{**61 AD3d at 16} argued that it was entitled to summary judgment on the ground that the treatment afforded to Hafford was unrelated to his motor vehicle accident. Specifically, Allstate’s counsel provided the court with the diagnosis and procedure codes key from the official Web site of HHS, Centers for Medicare and Medicaid Services. Allstate requested that the Supreme Court take judicial notice of the codes and their definitions, as public documents. According to the codes key, Hafford’s diagnoses and treatment at White Plains Hospital included rapid heart rate associated with infection, acute and chronic respiratory failure, heart damage caused by alcoholism, convulsions, potassium deficiency, blood poisoning, brain damage caused by lack of oxygen, and expectoration of blood. Allstate’s counsel argued, without a supporting affidavit from a medical expert, that these code-defined conditions could not have been related to the automobile accident or, at least, raised an issue of fact as to whether the conditions arose from the accident.

The plaintiffs opposed Allstate’s cross motion for summary judgment by raising two principal arguments in connection with the third cause of action. First, White Plains Hospital argued that the interpretation of the billing codes cannot be judicially noticed as it does not rest upon knowledge or sources widely accepted as unimpeachable. Second, White Plains Hospital argued that Allstate’s counsel was not qualified as a medical expert to render an opinion on whether the hospital’s care and treatment was, or was not, related to the underlying automobile accident.

In the order appealed from dated November 15, 2007, the Supreme Court held, with respect to the third cause of action, that White Plains Hospital established its demand upon proper forms that Allstate pay the sum of $26,979.83, and that Allstate failed to pay the claim or issue a denial of claim within the required 30 days thereafter (2007 NY Slip Op 34402[U]). With respect to Allstate’s opposition and the cross motion, the Supreme Court implicitly took judicial notice of the HHS codes key and held that counsel’s affirmation, which argued that invoiced treatment was unrelated to the automobile accident, was medically insufficient. The Supreme Court, inter alia, granted that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action asserted by White [*3]Plains Hospital. For the reasons set forth below, we affirm the order insofar as appealed from.{**61 AD3d at 17}

II. The Payment of First-Party Benefits Under Insurance Law § 5106

Article 51 of the Insurance Law is known as the “Comprehensive Motor Vehicle Insurance Reparations Act” and is commonly referred to as the “No-Fault Law.” The purpose and objective of this statute 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’ ” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]).

Section 5106 of article 51 is entitled “Fair claims settlement” and provides, in pertinent part, that

“(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.”

Pursuant to the statutory and regulatory framework governing the payment of no-fault benefits, insurance companies are required either to pay or deny a claim for first-party benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]). Within 10 business days after receipt of the claim notice, the insurer may send an initial request for verification of the claim (see 11 NYCRR 65-3.5 [a]). After receipt of verification, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt (see 11 NYCRR 65-3.5 [b]). The 30-day period in which to either pay or deny a claim is{**61 AD3d at 18} extended where the insurer makes a request for additional verification within the requisite 15-day time period (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Thus, a timely additional verification request tolls the insurer’s time within which to pay or deny a claim (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]).

Eleven years ago, the New York Court of Appeals carved out a narrow exception to the requirement that an insurer must pay or deny a claim within the 30-day period prescribed by the No-Fault Law. The Court of Appeals held that an insurer “may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563). The Court stressed, however, that the lack of coverage “exceptional exemption” does not apply where the insurer claims that the hospital treatments were medically excessive, since the defense of medical excessiveness seeks to excuse only part, but not all, of the no-fault benefits (90 NY2d at 199, 202). Thus, where an insurer alleges excessive treatment as a basis for denying coverage, a denial of claim must be served within the [*4]time-sensitive deadline of the No-Fault Law, at least as to the portion of the demand that is deemed excessive.

Two years later in Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]), this Court applied the Central General Hospital rationale and, in so doing, explained that the insurer who asserts entitlement to the “exceptional exemption” must “come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (id. at 19-20). This Court determined that in applying Central General Hospital, “the question of whether an injury was entirely preexisting (i.e., not covered) or was in whole or in part the result of an insured accident (i.e., covered) is hybrid in nature, and cannot be resolved without recourse to the medical facts” (id. at 19 [emphasis added]).

This Court further emphasized that the underlying purpose of the No-Fault Law would be undermined if a plaintiff hospital were required to prove as a threshold matter that a patient’s{**61 AD3d at 19} condition was caused by the accident and unrelated to his or her entire medical history. Under such circumstances, “insurers would be motivated to refrain from issuing timely disclaimers in order to impose such an onerous threshold burden upon claimants” (id. at 20). The burden of proving the lack of a nexus between an accident and medical treatment therefore falls upon the insurer seeking to deny payment (id. at 19-20).

Against this backdrop, the judicially noticed admissibility of the proffered diagnosis and procedure codes key published by HHS, and whether the deciphered codes, if admitted, establish that medical diagnosis and treatment was or was not related in whole or in part to Hafford’s automobile accident, assumes dispositive significance to the resolution of this appeal.

III. Judicial Notice

CPLR 4511 (b) provides that upon request of a party, a court may take judicial notice of federal, state, and foreign government acts, resolutions, ordinances, and regulations, including those of their officers, agencies, and governmental subdivisions. While the concept of judicial notice is elastic (see Richardson, Evidence § 52 [Prince 10th ed]) and applicable to a wide range of subject matter, official promulgations of government appear to be particularly appropriate for judicial notice, given the manner that CPLR 4511 expressly singles them out for such treatment.

Judicial notice has never been strictly limited to the constitutions, resolutions, ordinances, and regulations of government, but has been applied by case law to other public documents that are generated in a manner which assures their reliability. Thus, the concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720 [2001]; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 827 [1999]; Mackston v State of New York, 126 AD2d 710 [1987]), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532 [1975]), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791 [1998]; Matter of Maidman, 42 AD2d 44, 47 [1973]), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183 [1930]), legislative journals (see Browne v City of New York, 213 App Div 206, 233 [1925]), the consumer price index (see Sommers v Sommers, 203{**61 AD3d at 20} AD2d 975, 976 [1994]; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947 [1978]), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24 [1979]), death certificates maintained by the Department of Health (see Matter of Reinhardt, 202 Misc 424, 426 [1952]), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505 [2008]; Walker v City of New York, 46 AD3d 278, 282 [2007]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11, 18 [2002]). Even material derived from official government Web sites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc 3d 295 [Sup Ct, Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A], 2008 NY Slip Op 50925[U] [Civ Ct, Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A], 2007 NY Slip Op 50336[U] [Civ Ct, Kings County 2007]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A], 2006 NY Slip Op 51242[U] [Buffalo City Ct 2006]).

White Plains Hospital argues that the codes key available on the HHS Web site does not qualify for judicial notice by relying upon the language of this Court in Ptasznik v Schultz (247 AD2d 197 [1998]). In Ptasznik, then-Justice Albert Rosenblatt defined the test for judicial notice as “whether the fact rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven” (id. at 198, citing Hunter v New York, Ontario & W. R.R. Co., 116 NY 615 [1889]). White Plains Hospital maintains that code numbers which require deciphering do not constitute general information widely accepted by the average layperson. However, Ptasznik discusses specifically, and the universe of case law recognizes generally, two disjunctive circumstances where information may be judicially noticed. The first is when information “rests upon knowledge . . . [that is] widely accepted” (Ptasznik v Schultz, 247 AD2d at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 199). The second “rests upon . . . sources [that are] widely accepted and unimpeachable” (id. at 198 [emphasis added]), such as reliable uncontested governmental records.

Here, the diagnosis and procedure codes key maintained by the United States Government on its HHS Web site is of sufficient authenticity and reliability that it may be given judicial notice. The accuracy of the codes key is not contested by White Plains Hospital, and is not subject to courtroom fact-finding (see{**61 AD3d at 21} Affronti v Crosson, 95 NY2d at 720). The fact that the code system might not be readily understood by the lay public is of no significance, as the information is proffered for judicial notice not on the basis of being generally understood by the public, but rather, on the basis of its reliable source.

We hold, therefore, that the diagnosis and procedure codes key published by the United States Government on its HHS Web site may properly be given judicial notice (see CPLR 4511 [b]), as the key is reliably sourced and its accuracy not contested.

Using the codes key in evidence, the appellant, Allstate, accurately deciphered for the Supreme Court the medical diagnoses and treatments administered by White Plains Hospital to Hafford during the course of Hafford’s hospital stay.

IV. The Medical Evidentiary Value of the Deciphered Codes

The plaintiffs established their prima facie entitlement to summary judgment on the third cause of action asserted by White Plains Hospital to recover no-fault benefits on behalf of its assignor, Hafford (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), by submitting the prescribed statutory billing forms, the affidavit of its biller, the certified mail receipt, and the signed return receipt card referencing the patient and the forms (see Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 904; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683, 683-684 [2007]). Unlike negligence actions where plaintiffs must prove causation, plaintiffs seeking to recover first party no-fault payments bear no such initial burden, as causation is presumed (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 20; Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97, 99 [2007]).

In opposition, Allstate relies upon the judicially-noticed diagnosis and procedure codes key published by HHS to argue, via an attorney’s affirmation, that care and treatment rendered to Hafford by White Plains Hospital was causally unrelated to Hafford’s automobile accident. [*5]

Allstate has failed to come forward with proof in admissible form, as is its burden in opposing summary judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19{**61 AD3d at 22}-20), to raise a triable issue as to ” ‘the fact or founded belief that the alleged injury does not arise out of an insured incident’ ” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19, quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997] [emphasis omitted]; see New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]). While the existence of the diagnostic codes and the clinical definitions of Hafford’s treated medical conditions may not be in dispute, the question of whether such conditions were wholly unrelated to his automobile accident or not exacerbated by the accident “cannot be resolved without recourse to the medical facts” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Here, Allstate’s counsel, in his affirmation, failed to set forth any basis on which to conclude that he was a medical expert qualified to render an opinion on causality (see Contacare, Inc. v CIBA-Geigy Corp., 49 AD3d 1215 [2008]; Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296 [2000]). No physician or other medical expert affidavit was included in Allstate’s submissions to explain the codes, the diagnoses and, most importantly, the causation or exacerbation, or lack of causation or exacerbation of conditions, in relation to the subject automobile accident. The mere deciphered codes, in and of themselves, are insufficient.

We acknowledge that there are rare but recognized instances where medical issues can be resolved by a trier of fact without resort to expert opinion. A classic example is if a surgeon leaves a foreign object inside a patient’s body, the absence of the surgeon’s proper exercise of care and skill speaks for itself without the need for an expert (see Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997]). Here, Allstate argues that no medical expert affidavit is required (see St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743, 744 [2003]) as “the codes speak for themselves and merely require the application of simple logic.” We do not agree. The deciphered codes identify Hafford’s diagnoses and treatments but do not address causality. Certain of the deciphered codes such as infection, acute respiratory failure, convulsions, and expectoration of blood are not necessarily conditions unrelated to an automobile accident. An expert’s affidavit is required for a court to conclude the absence of proximate causality as to these conditions (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19) or to at least find a nonspeculative question of fact as to causality (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d at 1020).{**61 AD3d at 23} The remaining coded conditions, which on their face might appear unrelated to an automobile accident, could conceivably represent exacerbations of preexisting conditions in the absence of expert medical opinion attesting otherwise. Exacerbations of preexisting conditions are covered by the No-Fault Law (see Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 660-661 [2004]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 18).

Allstate’s submissions therefore suffer from an inescapable paradox. If the diagnostic codes pertain to conditions unrelated to Hafford’s accident, Allstate was required to submit an affidavit from a medical expert (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). If, on the other hand, the diagnostic codes represent conditions related to the accident, then Allstate was required to either pay the no-fault claim, or deny payment on other grounds, within 30 days of receiving the demand (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 903; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 569). Either way, Allstate failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of White Plains Hospital on the third cause of action.

Based upon the foregoing, we conclude that the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action [*6]asserted by White Plains Hospital.

To the extent that Allstate argues that the branch of its cross motion which was for summary judgment dismissing the third cause of action should have been granted, this contention is not properly before this Court as Allstate’s notice of appeal limited the scope of the appeal to that part of the Supreme Court’s order which awarded summary judgment to White Plains Hospital on the third cause of action (see CPLR 5515 [1]; Spencer v Crothall Healthcare, Inc., 38 AD3d 527, 528 [2007]; Yannotti v Four Bros. Homes at Heartland Condominium I, 24 AD3d 659, 660-661 [2005]).

Accordingly, we affirm the order insofar as appealed from.

Fisher, J.P., Miller and Eng, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.