SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 21, 2006, deemed in part from a judgment of said court entered February 1, 2007 (see CPLR 5501 [c]). The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment on its second cause of action. The judgment, entered pursuant to so much of the June 21, 2006 order as denied plaintiff’s cross motion for summary judgment on its first and third causes of action and granted defendant’s cross motion for summary judgment to the

extent of awarding defendant summary judgment on plaintiff’s first and third causes of action, dismissed plaintiff’s first and third causes of action.

Judgment affirmed without costs.

Order, insofar as appealed from, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of granting plaintiff summary judgment on its second cause of action, and matter remanded to the court below for the calculation of statutory interest [*2]and attorney’s fees thereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to three assignors, defendant moved, pursuant to CPLR 603, to sever plaintiff’s causes of action, plaintiff cross-moved for summary judgment, and defendant cross-moved for summary judgment. The court below granted defendant’s severance motion, denied plaintiff’s cross motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of granting defendant partial summary judgment with respect to plaintiff’s first cause of action (regarding assignor Andree Sarjoo) and third cause of action (regarding assignor Romelle Archer). Plaintiff appeals, arguing that it was entitled to summary judgment upon its three causes of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (see e.g. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s “PIP Litigation Representative,” in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment.

In opposition to plaintiff’s cross motion, and in support of its own cross motion, defendant asserted that, with respect to plaintiff’s claims for services rendered to Mr. Sarjoo (the first cause of action) and Mr. Archer (the third cause of action), it timely denied the claims in question on the ground that the services provided were not medically necessary based on affirmed peer review reports. Contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation, as neither peer review doctor stated in his peer review report that his determination was based on a lack of documentation. Instead, both reports set forth a factual basis and medical rationale for the doctors’ opinions that the MRIs billed for were not medically necessary. Accordingly, since plaintiff did not rebut the evidence in support of defendant’s cross motion upon these causes of action, the court below properly granted defendant’s cross motion with respect to plaintiff’s first and third causes of action (see A. Khodadadi Radiology, 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]).

With respect to plaintiff’s remaining cause of action to recover upon the claim for services rendered to Sean-Anthony Cherry (the second cause of action), defendant denied the claim based upon Mr. Cherry’s alleged failure to appear at scheduled examinations before trial (EUOs). Since the affidavit submitted by defendant was insufficient to establish Mr. Cherry’s nonappearance at said EUOs, defendant failed to raise a triable issue of fact (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also Midisland Med., PLLC v New York [*3]Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51983[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, contrary to the determination of the court below, plaintiff was entitled to summary judgment with respect to its second cause of action.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
CROSSBRIDGE DIAGNOSTIC RADIOLOGY, P.C.
a/a/o ANDRE SARJOO, SEAN-ANTHONY CHERRY
and ROMELLE ARCHER,

Appellant, [*4]

-against-
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part, and votes to affirm the judgment, and the order insofar as appealed from, in the following memorandum:

I concur with the majority in its affirmance of the lower court’s denial of plaintiff’s cross motion for summary judgment as to the first and third causes of action and the granting of defendant’s cross motion for summary judgment as to the first and third causes of action, encompassing the dismissal of those causes of action. I dissent as regards the awarding of summary judgment to plaintiff with respect to the second cause of action.

With regard to the first and third causes of action, I agree with the majority’s finding that “contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation.” I, nonetheless, disagree with the majority’s finding relating to the second cause of action regarding the sufficiency of notice to the assignor Mr. Sean-Anthony Cherry.

Defendant denied those claims upon the assertion that Mr. Cherry failed to appear at a scheduled examination before trial (EUO). The majority finds, and I agree, that the affidavit submitted by defendant was insufficient to establish, in admissible form, the fact that Mr. Cherry failed to appear at the EUO. Indeed, defendant’s affiant failed to specify how she obtained the information that Mr. Cherry had failed to appear. The majority then cites to the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]) in support of its conclusion granting judgment to plaintiff.

I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (id.).

In that case, although the Appellate Division, Second Department, nominally affirmed the majority ruling of the Appellate Term, the court specifically rejected the artificial distinction my colleagues created between “pre” and “post” claims. More importantly, the Appellate Division held that, “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis added]).

Inasmuch as the notices to appear for the EUO were sent directly to the assignor and, in addition, there is no affidavit from the assignor that he either appeared or that he did not receive such notice, the evidence of notice has not been rebutted (see A. Khodadadi Radiology, 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]). Consequently, it is now incumbent upon plaintiff to establish, in admissible form, that the assignor complied with the condition precedent, that is the assignor’s submission to the EUO. [*5]

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability (see also Quality Health Prods., Inc. v Progressive Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op _____, No. 2007-148 Q C, decided herewith).

Accordingly, I would deny both cross motions for summary judgment relating to the second cause of action, as was done in Stephen Fogel Psychological, P.C..

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 12, 2007, deemed from a judgment of said court entered February 16, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 12, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,740.62.

Judgment reversed without costs, order entered January 12, 2007 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. The court below granted the motion and the instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affirmation of plaintiff’s officer, submitted in support of the 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 a prima facie case. In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary. [*2]

In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; 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]).

We find that the affirmation submitted by the treating doctor, plaintiff’s officer, was not sufficient to establish a foundation for plaintiff’s claim forms. Contrary to plaintiff’s contention, defendant did not waive its objection to the admissibility of plaintiff’s claim forms by failing to raise it below (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]). To the extent plaintiff argues that it is possible to circumvent the requirement that said claim forms be submitted in admissible form by submitting the affirmation of the treating doctor, we need not reach that issue. Plaintiff’s doctor failed to sufficiently set forth the pertinent facts relevant to the claims. In light of the foregoing, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Dan Med., P.C., 14 Misc 3d at 47). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and said motion is denied.

Pesce, P.J., and Rios, J., concur.

Steinhardt, J., dissents in a separate memorandum.

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

To prevail on a motion for summary judgment in a no-fault claim, the plaintiff has the burden to demonstrate that the no-fault claim forms were submitted to the defendant and that the payment to the plaintiff is overdue (see Insurance Law § 5106 [a]; Fair Price Med Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To meet this burden, the plaintiff is required to establish the admissibility of the no-fault claim forms by demonstrating that the forms are business records (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d and 11th Jud Dists 2006]). To qualify a document as a business record, three foundational requirements must be met: (1) that the document was made in the regular course of business; (2) that it is the regular course of business to make such documents or records; and (3) that the document or record was made at the time of the act or transaction or within a reasonable time thereafter (see CPLR 4518). [*3]

In the instant matter, Boris Kleyman, M.D., executed affirmations in support of plaintiff’s claims. In each, he stated “I am an officer of . . . Plaintiff . . . who treated the Assignor . . . and having reviewed the Assignor’s file, I am fully familiar with the facts and circumstances of this matter and make this affirmation based upon personal knowledge” (emphasis added). Plaintiff submitted additional affidavits in support of the motion, including one by Enrique Escala, the “Office Services Supervisor” for the attorneys who handle the processing of plaintiff’s no-fault claims. Said affidavit outlined the procedures employed by him with reference to the mailing of the documentation in question to defendant.

Contrary to the opinion expressed by my learned colleagues, I find that the documents submitted by plaintiff in support of the motion, taken in their totality, qualify as business records and that they clearly fulfill the requirements for admissibility as set forth in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [2006], supra). Plaintiff, therefore, in my opinion, met its burden and is entitled to the granting of summary judgment in its favor.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Order modified by providing that defendant’s cross motion to dismiss the complaint is denied; as so modified, 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 to dismiss the complaint pursuant to CPLR 3211 (a) (5), based upon a Virginia court’s order rescinding the subject insurance policy. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint. Plaintiff appeals.
An objection based on CPLR 3211 (a) (5) must be raised either by motion made before service of the responsive pleading is required or in the responsive pleading (see CPLR 3211 [e]). As defendant did neither, its post-answer cross motion to dismiss should have been denied. [*2]
Turning to plaintiff’s motion for summary judgment, we note that defendant raised no issue below or on appeal with respect to plaintiff’s establishment of its prima facie case, and we therefore do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant made the same collateral estoppel argument it proffered in support of its cross motion to dismiss. It submitted a petition commencing an action in a Virginia court seeking a declaratory judgment voiding the subject insurance policy on the ground that the insured made material misrepresentations on his application for insurance including, inter alia, that he resided in, and his car was to be garaged in, Virginia. Defendant further submitted an uncertified order of a Virginia court, dated April 4, 2005, which provided that the subject insurance policy was “rescinded, void ab initio, and of no effect.”
We note at the outset that defendant may not invoke the doctrine of collateral estoppel against plaintiff herein because plaintiff was not a party to the Virginia proceeding, which was commenced by defendant herein against its insured. Prior to the commencement of the Virginia proceeding, plaintiff was assigned the instant claims by two eligible injured persons, neither of whom are the named insured but both of whom were allegedly eligible for benefits under said policy. Plaintiff was therefore not “afforded a full and fair opportunity to contest” the Virginia order, nor was it in privity with one who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-487 [1979]). We find, however, that the submission of the aforementioned documents is sufficient to demonstrate a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant has raised a triable issue of fact as to whether there was coverage under the subject insurance policy (see Hernandez v City of New York, 35 AD3d 812, 813 [2006]; Matter of Eagle Ins. Co. v
Singletary, 279 AD2d 56 [2000]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90
NY2d 195 [1997], supra). Therefore, plaintiff’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
Respondent.
Golia, J., concurs in the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not [*3]the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 11, 2006. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on plaintiff’s claim for $694; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff’s $694 claim on the ground that the supplies provided were not
medically necessary based on an affirmed peer review report, and that it timely denied plaintiff’s $1,021 and $289 claims based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms since it described in detail the standard office practice and procedure [*2]used to ensure that the verification requests and denial of claim forms were properly addressed and 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]).

While plaintiff argues that the affirmed peer review report submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the supplies provided were medically necessary, this contention is raised for the first time on appeal. In any event, it lacks merit because the affirmed peer review report set forth a factual basis and medical rationale for the determination that the supplies provided were not medically necessary, thereby raising a triable issue of fact as to plaintiff’s $694 claim (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Turning to plaintiff’s remaining claims ($1,021 and $289), while defendant asserted that it timely denied said claims based on the assignor’s failure to appear for
two scheduled IMEs, defendant failed to establish by proof in admissible form that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the claim for $694.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
QUALITY HEALTH PRODUCTS, P.C.
a/a/o MALIK BUNNCHE,

Appellant,

-against- [*3]
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum.

I concur with the majority as to its affirmance of the lower court’s denial of plaintiff’s summary judgment motion with respect to the $694 claim, which claim was denied based on a sufficient and timely peer review report.

I also concur with the majority in its finding that “[c]ontrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms….”

However, I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]).

In that case, the Appellate Division, Second Department, while affirming the majority ruling of the Appellate Term, specifically rejected the distinction the Appellate Term created between “pre” and “post” claims. More importantly, the Appellate Division held that the “appearance of the insured for IMEs [independent medical examinations] at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis supplied]).

Inasmuch as my colleagues and I agree that the notices were sent, it is now incumbent upon plaintiff to establish compliance with the condition precedent, that is the assignor’s submission to an IME.

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance at the IME, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 18, 2006, deemed from a judgment entered August 22, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,257.05.

Judgment reversed without costs, so much of the order entered July 18, 2006 as granted 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, the complaint asserts seven causes of action based upon NF-3 claim forms and an eighth cause of action seeking attorney’s fees. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff’s billing manager, and various documents annexed thereto. The affirmation executed by plaintiff’s billing manager stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff’s billing manager failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Defendant also sought summary judgment upon its cross motion on the ground that the action was premature because plaintiff failed to respond to timely verification requests. The court [*2]granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to 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]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Defendant’s cross motion for summary judgment is predicated upon defendant’s timely requests for verification. Inasmuch as the affidavit executed by defendant’s no-fault litigation examiner failed to establish that defendant timely mailed its verification requests based upon its standard office practice or procedure designed to ensure that items are properly addressed and 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]; cf. Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant is not entitled to summary judgment upon its cross motion with respect to the seven causes of action on NF-3 claim forms.

Since the issue is not raised, we do not pass on whether the eighth cause of action, seeking attorney’s fees, constitutes a separate cause of action for pleading purposes under the No-Fault Law or whether it is merely an element of the damages recoverable on the substantive causes of action (see generally Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]). We note, however, that even were we to find that it is not a separate cause of action for pleading purposes, we would, upon dismissing said “cause of action,” deem the complaint amended to demand attorney’s fees as part of the damages sought in each of the remaining causes of action (see Bunker v Bunker, 73 AD2d 530 [1979]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
Golia, J., concurs in part and dissents in part and votes to reverse the judgment, vacate the entire order entered July 18, 2006 except the provisions thereof which denied defendant’s cross motion for summary judgment with respect to its first and eighth causes of action, and, upon such vacatur, deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment to the extent of dismissing plaintiff’s second through seventh causes of action, in the following memorandum:

I concur with the majority insofar as it denied summary judgment in favor of plaintiff for the reasons stated by the majority. I further concur with the majority insofar as it denied defendant’s cross motion for summary judgment with respect to the first and eighth causes of action, which portion of the cross motion I would deny based on defendant’s failure to provide adequate proof that the follow-up verification sought the same materials as the first verification request.

I dissent, however, as to the majority’s affirmance of the lower court’s denial of [*3]defendant’s cross motion for summary judgment with respect to the second through seventh causes of action. My disagreement with my colleagues turns, in large part, on the issue of what constitutes sufficient proof of mailing. I find that the affidavit of Ms. Annie Jordan, defendant’s no-fault litigation examiner, is more than sufficient to establish that the verification requests were mailed and that the follow-up requests were timely and properly sent in accordance with the protocols set forth in the regulations. Unlike the facts in Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374, 375 [2002]), in which the court found that the “employee had no personal knowledge that the . . . form had been mailed . . .,” in this case, Ms. Jordan specifically states that “I have personal knowledge that in compliance with that policy and business duty . . . the verification letters were dated and generated, copies of the verification letters were mailed to Horton Medical P.C., 40 Horton Ave., Lynbrook, N.Y. . . . .”

She further stated in her affidavit that:

“It is [defendant’s] office practice and [defendant’s] claims examiners are under a business duty to mail all verification letters to the address applicant lists on the bills on the same day the verification letters are dated and generated. I have personal knowledge that in compliance with that policy and business duty, on 08/24/05, 09/08/05, 09/14/05, 09/28/05, 09/29/05, 10/11/05. 10/14/05, 11/03/05, 11/16/05, 12/19/05, the dates the verification letters were mailed to [plaintiff at] the address listed on the bills. Copies were also mailed to Plaintiff’s assignor. I have personal knowledge that the postal service did not return the verification letters as being undeliverable.”

As stated by the Court of Appeals in Nassau Ins. Co. v Murray (46 NY2d 828, 830 [1978]), the real question is whether or not the party has established the following:

“office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed.”

To the best of my understanding, the only reason that I can intuit as to why the majority finds this affidavit of mailing procedures to be insufficient is that it does not deconstruct the process itself. That is, it does not state that the office procedure entails affixing the proper postage, placing the envelopes in the care and custody of the U.S. Postal Service, etc.

I do not believe that such a strict catechism is necessary in order to trigger the legal presumption of mailing. Indeed, the plain meaning of the word “mailing” in and of itself denotes a process and not a concept. It is applicable only to the U.S. Postal Service. Black’s Law Dictionary (8th ed 2004) defines “mail” as a noun meaning:

“one or more items that have been properly addressed, stamped with postage, and deposited for delivery in the postal system.”

“Mail” is also defined as a verb to mean:

“to ensure that a letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup.”

It should not be the province of this Court to require that a party to an action recite all the component parts encompassed by the act of this unique word “mailing” in much the same way that “plebes” at a military academy are required to recite all the component elements of the act of “walking” before taking a walk. For the military to require such strict adherence can make sense. For the courts to do so is unreasonable. [*4]
Decision Date: July 30, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 11, 2006. The order granted defendant’s motion to vacate a default judgment and to compel plaintiff to accept a late answer.

Order reversed without costs and defendant’s motion to vacate the default judgment and compel plaintiff to accept a late answer denied.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment and to compel plaintiff to accept a late answer. The court below granted defendant’s motion, and this appeal by plaintiff ensued.

It is well settled that in order to vacate a default judgment, the defaulting party
must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). A court may, in the exercise of discretion, accept a claim of law office failure as an excuse (see CPLR 2005). However, counsel “must submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). In the case at bar, defendant’s attorney merely stated that law office failure constitutes a reasonable excuse for defaulting but did not elaborate as to why her office failed to serve a timely answer. Although defense counsel stated in her affirmation that the insurance carrier delayed in forwarding the summons and complaint to her office and made general statements regarding the summons and complaint having been “lost in the shuffle” by the insurance company, as well as [*2]lost or misplaced in the mail, her affirmation was not based on personal knowledge and therefore, has no probative value (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant failed to establish a reasonable excuse for its default.

Accordingly, the court below improvidently exercised its discretion in granting
defendant’s motion to vacate the default judgment and to compel plaintiff to accept a late answer. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: July 30, 2008

[*1]

Supreme Court, Appellate Term, Second Department, July 30, 2008

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Robin Grumet of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

{**21 Misc 3d at 11} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, modified by providing that the branches of defendant’s motion seeking to compel plaintiff to respond to the demand for discovery and inspection, the demand for verified written interrogatories and the supplemental demand for verified written interrogatories are granted to the extent of compelling plaintiff to produce its certificate of incorporation for discovery and inspection, and serve responses to numbers 1, 15 and 16 of defendant’s demand for verified written interrogatories and numbers 1, 15, 31, 37-40, and 44-46 of defendant’s supplemental demand for verified written interrogatories within 60 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to produce the discovery demanded in defendant’s demand for discovery and inspection, demand for verified written interrogatories and supplemental demand for verified written interrogatories. [*2]Plaintiff opposed the motion and cross-moved for a protective order. The court granted defendant’s motion to the extent of requiring plaintiff to provide documentation pertaining to the license of plaintiff’s owner, Anikeyeva, and to plaintiff’s corporate structure, and granted plaintiff’s{**21 Misc 3d at 12} cross motion to the extent of providing that Anikeyeva did not have to produce personal documents. This appeal by defendant ensued.

Plaintiff was required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiff failed to object to defendant’s demand for verified written interrogatories and to defendant’s supplemental demand for verified written interrogatories. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [2006], supra). However, the record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of, among other things, plaintiff’s certificate of incorporation, management agreements, and the names of plaintiff’s shareholders, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. Preferred Med. Imaging, P.C. v Liberty Mut. Ins. Co., 11 Misc 3d 1069[A], 2006 NY Slip Op 50437[U] [Suffolk Dist Ct 2006]). As a result, in addition to the discovery previously ordered by the Civil Court, which portion of the order we do not review since it is not the subject of this appeal, defendant is also entitled to production of plaintiff’s certificate of incorporation as well as responses to interrogatories numbered 1, 15, and 16 and responses to the supplemental interrogatories numbered 1, 15, 31, 38-40 and 44-46 since said items were not palpably improper or privileged.

We further note that special circumstances exist which warrant the disclosure of plaintiff’s corporate income tax returns (see CPLR 3101 [a]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term,{**21 Misc 3d at 13} 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; Preferred Med. Imaging, P.C. v Liberty Mut. Ins. Co., 11 Misc 3d 1069[A], 2006 NY Slip Op 50437[U] [2006], supra; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is also entitled to the information demanded in defendant’s supplemental interrogatory number 37.

Defendant’s contention that the court erred in denying the branch of its motion which sought to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial is without merit. The notice of examination before trial served by defendant sought to require Anikeyeva to appear for an examination before trial at defendant’s counsel’s office in “Lake Success, New York 11042.” However, as noted by plaintiff, since Anikeyeva is “an [*3]officer, director, member or employee” of plaintiff, defendant improperly noticed the deposition for a location outside New York City (see CPLR 3110). Consequently, the court did not err insofar as it declined to compel plaintiff to produce Anikeyeva for an examination before trial at the location sought (see e.g. Mamunes v Szczepanski, 70 AD2d 684 [1979]).

Defendant’s argument that the court should have denied the branch of plaintiff’s cross motion which resulted in a protective order as to Anikeyeva’s “personal documents” lacks merit. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant failed to meet its burden of establishing that Anikeyeva’s personal tax returns and personal bank account records are needed, particularly where, as here, defendant is entitled to disclosure of plaintiff’s tax returns and the requested financial information with respect to said corporation. Thus, based upon the record before it, the court did not improvidently exercise its discretion in issuing its protective order.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

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

Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s motion for summary judgment and that plaintiff failed to submit a timely claim for reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff timely mailed the bills to defendant. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.
Decision Date: July 25, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

DECISION

Motion by respondent for leave to appeal to the Appellate Division from the order of this court dated January 15, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court, dated January 15, 2008, in the above entitled action, is granted and, upon reargument, the order and decision of this court dated January 15, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 9, 2006, deemed from a judgment entered November 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 9, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $5,805.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, contending that plaintiff failed to make a prima facie showing because plaintiff did not establish the existence of a valid assignment; that plaintiff’s claim for $82.89 was timely denied on the ground that it was subject to the personal injury protection deductible contained within the insurance policy issued to plaintiff’s assignor; and that plaintiff’s remaining claims were timely denied based upon affirmed peer review reports. In reply, plaintiff asserted that defendant’s peer review reports did not constitute evidence in admissible form in that they failed to comply with CPLR 2106 since the doctor’s signatures were affixed by stamp or generated by computer. The court held that plaintiff [*2]made a prima facie showing and that defendant’s peer review reports did not constitute evidence in admissible form because the signatures were not affixed in accordance with CPLR 2106. As a result, the lower court granted plaintiff’s motion for summary judgment, and judgment was subsequently entered thereon. This appeal by defendant ensued.

Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor’s signature was on file,’ such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). Since defendant raises no other issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff’s $746.01 claim form. (We note that the supervisor of defendant’s no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23.’ The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant’s opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.

Further, with respect to plaintiff’s remaining claims, the court below held that the peer review reports submitted by defendant in opposition to plaintiff’s motion were inadmissible inasmuch as they failed to comply with CPLR 2106. Where, as here, the signatures appear to be affixed by stamp or generated by a computer, plaintiff’s assertion, in its reply papers, that such peer review reports did not constitute evidence in admissible form due to a failure to comply with CPLR 2106 would ordinarily raise an issue of fact that cannot be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; see also James v Albank, 307 AD2d 1024 [2003]). However, inasmuch as defendant’s counsel has submitted papers to this court in opposition to plaintiff’s motion for leave to appeal to the Appellate Division from the original order of this court dated January 15, 2008, (which motion has been rendered academic by the issuance of this decision and order), conceding that [t]he reports in question contain stamped signatures,’ and there is nothing in the record to indicate that the stamped signatures were placed on the reports by the doctor who performed the peer reviews or at his direction, it is our view that defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

Accordingly, the judgment is affirmed.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish [*3]to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut Cas. Co. (___ Misc 3d ___, 2008 Slip Op ______ [App Term, 2d & 11th Jud Dists 2008]), an appellate court
“should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: July 25, 2008