[*1]

Supreme Court, Appellate Term, Second Department, April 24, 2007

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Michael Theodorou of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

{**16 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and, upon searching the record, summary judgment granted in favor of defendant dismissing the action.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In an affirmation in support of the motion, plaintiff’s counsel stated that plaintiff billed defendant for 35 sessions of acupuncture with its licensed acupuncturist at a rate of $90 per session, for a total of $3,150. Defendant paid plaintiff for 35 sessions at a reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services, for a total of $1,025.50. Plaintiff sought full reimbursement, or the remaining $2,124.50, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated. Plaintiff’s counsel stated that the prevailing fee for acupuncture services performed by licensed acupuncturists in New York City was between $85 and $100 per session, and added that said amounts were warranted given the extensive training required in order to become a licensed acupuncturist. [*2]

Defendant, in opposition, showed that it timely mailed its claim denial forms, which partially denied plaintiff’s claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. An employee of its claims division, who was responsible, inter alia, for reviewing fee schedules, noted in her affidavit that, since the workers’ compensation fee schedule did not specifically address acupuncture services performed by a licensed acupuncturist{**16 Misc 3d at 25} who was neither a licensed physician nor a licensed chiropractor, defendant had reviewed the acupuncture fee schedules “already adopted or established by the superintendent” (i.e., for licensed physicians and licensed chiropractors), pursuant to the mandates of 11 NYCRR 68.5 (b), and had concluded that licensed acupuncturists should be reimbursed at a rate consistent with the amount established in the fee schedule for licensed chiropractors in the geographic region, or at $29.30 per session (as opposed to the amount established in the fee schedule for acupuncture services performed by a physician, which would have called for a payment of $42.84 per session for that geographic region). This conclusion was deemed by defendant to be “reasonable and appropriate, given a comparison of the New York State requirements regarding the educational level, experiential requirements and licensing requirements for medical doctors, chiropractors and individuals simply licensed to perform acupuncture.”

The court below granted plaintiff’s motion for summary judgment, and defendant appealed, contending that plaintiff had been properly reimbursed in accordance with the rates set forth in the existing fee schedules. At issue is the appropriate fee to be paid for acupuncture services rendered by a licensed acupuncturist.

Insurance Law § 5102 (a) (1) defines “basic economic loss” as including “[a]ll necessary expenses incurred for . . . professional health services” subject to the limitations of Insurance Law § 5108. The latter statute limits the amounts to be charged by providers of health services, and states that the charges for services specified in Insurance Law § 5102 (a) (1) “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . . except where the insurer . . . determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). The statute also authorizes the Superintendent of Insurance to “promulgate rules and regulations implementing and coordinating the provisions of” the No-Fault Law and the Workers’ Compensation Law with respect to charges for the professional health services specified in Insurance Law § 5102 (a) (1), “including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workers’ compensation board” (Insurance Law § 5108 [b]).

Part 68 (also known as Regulation 83) of the New York Insurance Department Regulations (11 NYCRR) governs the charges{**16 Misc 3d at 26} for professional health services. The regulations provide that the “existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board . . . are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law” (11 NYCRR 68.1 [a]). The fee schedules for professional health services referred to in Insurance Law § 5102 (a) (1), for which schedules have not been prepared and established by the Workers’ Compensation Board, may be [*3]established by the Superintendent, and are made part of Appendix 17-C of the regulations (11 NYCRR 68.2). Appendix 17-C does not contain a fee schedule for acupuncture services performed by a licensed acupuncturist.

The New York State Department of Insurance has stated that medically necessary acupuncture services rendered by a licensed acupuncturist are covered expenses, and are eligible for reimbursement under Insurance Law § 5102 (a) (1) (see Ops Gen Counsel NY Ins Dept No. 04-01-01). Where, as here, a professional health service has been performed which is reimbursable under Insurance Law § 5102 (a) (1), but such service is performed by a provider which is not included in the fee schedules established by the Workers’ Compensation Board, and if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

The Department of Insurance has also concluded that while a licensed acupuncturist may bill an insurer for services rendered based upon the prevailing rate charged by other licensed acupuncturists in the same geographic area, “such billed fees may be reduced by insurers to those fees established in existing fee schedules for similar procedures reimbursable at fee rates in existing fee schedules, pursuant to section 68.5 (b) in Department Regulation 83” (see Ops Gen Counsel NY Ins Dept No. 04-10-03). The Department has specifically stated that it is:

“reasonable and appropriate, as well as consistent with the intent of Section 68.5 (b), for an insurer to reduce a prevailing regional rate when there is an established fee for similar services. . . . [W]ere a{**16 Misc 3d at 27} No-Fault insurer to review and equate services provided by a licensed acupuncturist as similar to acupuncture services provided by doctors or chiropractors, and such rate is less than the prevailing regional fee rate, it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary{**16 Misc 3d at 28} services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service.” (Ops Gen Counsel NY Ins Dept No. 04-10-03.)

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (Insurance Law § 301), who has “broad power to interpret, clarify, and implement the legislative policy” (Ostrer v Schenck, 41 NY2d 782, 785 [1977] [internal quotation marks omitted]). It is a well-established principle of law that the Superintendent’s interpretation of its regulations, “if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; Matter of Medical Socy. of State of N.Y. v Serio, 100 [*4]NY2d 854, 864 [2003]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We are in agreement with defendant that the lower court erred in granting plaintiff’s motion for summary judgment. In support of its motion for summary judgment, plaintiff argued, in a conclusory affirmation of counsel, in anticipation of defendant’s position in opposition to the motion, that a licensed acupuncturist should receive a higher rate of reimbursement than the scheduled fee for acupuncture services rendered by a physician or a chiropractor because of the acupuncturist’s extensive training in the area. Significantly, plaintiff did not argue that the services performed by its licensed acupuncturist were dissimilar from acupuncture services listed for a physician or for a chiropractor provider on the established fee schedules, and that it was therefore entitled to a different reimbursement rate.

In opposition to the motion, defendant argued that it was following the guidelines of the Department of Insurance which authorized the insurer “to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service” (Ops Gen Counsel NY Ins Dept No. 04-10-03), that it had reviewed the amounts charged by plaintiff “for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent,” and that, based upon a comparison of the training and experience of licensed acupuncturists, physicians and chiropractors who perform acupuncture services, it was reducing the fee for the acupuncture services provided by plaintiff to the rates already adopted or established for chiropractors performing a similar service, in accordance with the provisions of 11 NYCRR 68.5 (b). We note that even though the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians, the Department of Insurance did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware of this differential (see Ops Gen Counsel NY Ins Dept 04-10-03).

Plaintiff’s sole ground for summary judgment, i.e., that its rate of reimbursement should exceed the amounts prescribed in the fee schedules for both physicians and chiropractors because of the extensive training and experience required to become a licensed acupuncturist, has therefore been rejected by the Department of Insurance, which limited the fee for licensed acupuncturists to either one or the other. In view of the fact that there has been a lack of clarity regarding the appropriate fee schedule to apply for acupuncture services rendered by licensed acupuncturists, and since there has been increasing litigation on the issue, we strongly urge the Superintendent of Insurance to consider adopting a separate fee schedule for health services rendered by licensed acupuncturists. However, in the absence of same, upon the record presented, we apply the chiropractor fee schedule to the instant services. While physicians who practice acupuncture need only obtain certification in order to perform acupuncture (see Education Law § 8216; 8 NYCRR 60.9), chiropractors who practice acupuncture must be licensed to do so (see Education Law § 8214). Thus, licensed acupuncturists and chiropractors who wish to practice acupuncture are subject to similar training and educational requirements.

Under the circumstances presented herein, since it is undisputed that defendant has fully [*5]paid plaintiff the amounts{**16 Misc 3d at 29} to which it is entitled under the fee schedules for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, the action is dismissed.

We note that inasmuch as plaintiff’s constitutional arguments were not raised in the court of first instance, they were not preserved for appellate review, and we therefore decline to reach them (see Giordano v O’Neill, 131 AD2d 722 [1987]).

Rios, J. (concurring in part and dissenting in part in the following memorandum). Although I am in agreement with the majority that the judgment should be reversed, the order granting plaintiff’s motion for summary judgment vacated, and plaintiff’s motion for summary judgment denied, in my opinion, we should not search the record to grant summary judgment in favor of defendant dismissing the action. Rather, the matter should be remanded for a trial on developed facts as to which specific services were provided by plaintiff to its assignor. While it is true that workers’ compensation fee schedules have been established for acupuncture services performed by a chiropractor, the record is silent as to whether the subject billing refers to treatment which is usually rendered by a chiropractor within the scope of his or her chiropractic license (see Education Law § 6551), or whether the billed services are for treatment for which a license as an acupuncturist is needed (see Education Law § 8214), in which event, the procedures performed by plaintiff’s acupuncturist would be sufficiently dissimilar from those rendered by a chiropractor that the fee schedules established for chiropractors should not be invoked.

Weston Patterson, J.P., and Belen, J., concur; Rios, J., concurs in part and dissents in part in a separate memorandum.

—[*1] Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated May 12, 2006, which granted the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action is denied.

In support of its motion for summary judgment on the second cause of action, the plaintiff Nyack Hospital, as assignee of Flora Schnee (hereinafter Nyack), made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and an affidavit of its biller attesting to the facts that, among other things, the defendant Government Employees Insurance Company (hereinafter GEICO) failed to either pay the bill or issue a timely denial of claim form in 30 days (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). However, in opposition to the motion, GEICO raised triable issues of fact by demonstrating that it timely requested medical verification of the claim, and timely denied it based upon a peer review report concluding that the subject treatment was the result of a preexisting [*2]medical condition and did not arise from a no-fault-covered accident (see Insurance Law § 5102 [a] [1], [b]; 11 NYCRR 65-3.8 [a] [1]; [b] [4]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Accordingly, the Supreme Court should have denied Nyack’s motion for summary judgment on the second cause of action.

Contrary to the Supreme Court’s conclusion, GEICO was not required to set forth a medical rationale in its denial of claim form. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007] [decided herewith]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]).

We decline GEICO’s request to search the record and award summary judgment in its favor on the second cause of action (see Gonzalez v Plain Edge High School Dist., 300 AD2d 540 [2002]).

GEICO’s remaining contention is improperly raised for the first time on appeal (see Castro v Homsun Corp., 34 AD3d 616 [2006]).

Motion by the respondent Nyack Hospital, as assignee of Flora Schnee, on an appeal from an order of the Supreme Court, Nassau County, dated May 12, 2006, to strike Point III of the appellant’s brief, and the addendum thereto, on the ground that they contain and refer to material dehors the record. By decision and order on motion of this Court dated January 12, 2007, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is, [*3]

Ordered that the motion is denied. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

—[*1] Bee Ready Fishbein Hatter & Donovan LLP, Mineola, N.Y. (Joshua M. Jemal, Robert E. Fekete, and Peter A. Bee of counsel), for appellant.

Marylou A. Paolucci, Smithtown, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated November 21, 2005, as reversed so much of an order of the Civil Court of the City of New York, Kings County (E. Spodek, J.), dated June 30, 2004, as denied that branch of the motion of the plaintiff A.B. Medical Services, PLLC, which was for summary judgment on the cause of action to recover the sum of $1,999.12, and granted that branch of the motion.

Ordered that the order dated November 21, 2005, is reversed insofar as appealed from, on the law, with costs, and the order of the Civil Court of the City of New York, Kings County, dated June 30, 2004, is affirmed insofar as it was appealed from.

To the extent the Appellate Term’s order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the [*2]carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided (see A.B. Med. Servs. v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007] [decided herewith]).

While the plaintiff A.B. Medical Services, PLLC (hereinafter A.B. Medical), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]), in response, the defendant raised a triable issue of fact with respect to its argument that the claimed benefits were properly denied on the ground of lack of medical justification (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Civil Court of the City of New York correctly denied that branch of A.B. Medical’s motion which was for summary judgment on the cause of action to recover the sum of $1,999.12. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

—[*1] Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant.

Amos Weinberg, Great Neck, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 6, 2006, which modified an order of the Civil Court of the City of New York, Kings County (R. Garson, J.), dated May 17, 2004, granting the plaintiff’s motion for summary judgment awarding the sum of $4,061.96, plus interest and an attorney’s fee, to provide that the plaintiff’s motion for summary judgment was granted only to the extent of awarding the plaintiff the sum of $3,971.20, and remitting the matter for the calculation of interest and an assessment of an attorney’s fee.

Ordered that the order of the Appellate Term is reversed, on the law, with costs, the order of the Civil Court of the City of New York, Kings County, is reversed, and the plaintiff’s motion for summary judgment is denied.

Under the circumstances presented, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; cf. Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). Accordingly, the plaintiff’s motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).

Even assuming the plaintiff had made a prima facie showing of entitlement to summary judgment, we conclude that the defendant succeeded in raising a triable issue of fact in [*2]response (see Alvarez v Prospect Hosp., supra). For the reasons set forth in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (39 AD3d 779 [2007] [decided herewith]), and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (39 AD3d 832 [2007] [decided herewith]), we disagree with the Appellate Term’s conclusion that the defendant’s denial of claim forms were insufficient because they failed to set forth with sufficient particularity the factual basis and medical rationale upon which they were based. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided.

In light of the foregoing determination, we need not address the defendant’s remaining contentions. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

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 (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for renewal of its prior motion for summary judgment.

Order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto.
In opposition to plaintiff’s motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff’s officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff’s motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known to plaintiff at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior [*2]determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T&B Port Washington, Inc. v McDonough, 32 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff which purportedly represented such changes were neither dispositive of the
issue of the sufficiency of plaintiff’s officer’s affidavit nor did they actually represent changes in the decisional law. Accordingly, the motion was properly denied.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 19, 2007

—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (David S. Gould of counsel), for appellant.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 5, 2006, which granted that branch of the motion of the respondent Daniel Davalos which was for reargument of the petition, which had been granted in an order of the same court dated August 15, 2005, and upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents.

Ordered that the order is modified, on the law, by deleting the provisions thereof which, upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents, and substituting therefor a provision granting that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme [*2]Court, Kings County, for an evidentiary hearing on the issue of whether Allstate Insurance validly disclaimed coverage of the offending vehicle for the subject accident and for a new determination thereafter of that branch of the petition which was to permanently stay arbitration.

“Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007] [internal quotation marks omitted]; see Marini v Lombardo, 17 AD3d 545 [2005]; Carrillo v PM Realty Group, 16 AD3d 611 [2005]; Viola v City of New York, 13 AD3d 439 [2004]). Contrary to the petitioner’s contention, the Supreme Court providently exercised its discretion in granting reargument to consider whether its original determination to permanently stay arbitration was proper in light of a recent Court of Appeals decision that had been overlooked.

Furthermore, upon granting reargument, the court properly concluded that the petitioner was not entitled to a stay of arbitration based upon the failure of the respondent Daniel Davalos to provide notice of his claim for uninsured motorist benefits “as soon as practicable” as required by the supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement of the subject insurance policy. Where, as here, timely notice of an accident has been given and the injured claimant has applied for no-fault benefits, an insurer cannot disclaim coverage under a SUM endorsement unless it establishes that it has been prejudiced by late notice of the SUM claim (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Nationwide Mut. Ins. Co. v Perlmutter, 32 AD3d 947 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, 27 AD3d 476 [2006]). Timely notice of the accident is “sufficient to promote the valid policy objective of curbing fraud or collusion” underlying notice requirements (see Rekemeyer v State Farm Mut. Auto. Ins. Co., supra at 475). Although the petitioner argues that the rationale of the Court of Appeals in Rekemyer v State Farm Mut. Auto. Ins. Co. (supra), should be limited to claims for underinsured motorist benefits, we find it equally applicable to claims for uninsured motorist benefits made pursuant to a SUM endorsement. Since the petitioner has not claimed any prejudice arising from the late notice of the SUM claim, the court correctly determined that it is not entitled to a stay of arbitration on this ground.

However, the court should have added Allstate Insurance (hereinafter Allstate) and the owner and operator of the offending vehicle as additional respondents. In support of its petition, inter alia, to permanently stay arbitration of Davalos’s claim for uninsured motorist benefits, the petitioner submitted the police accident report which contained the offending vehicle’s insurance code designation, and Allstate’s letter disclaiming coverage to the owner of the offending vehicle based upon his alleged noncooperation. This proof raised a question of fact as to whether Allstate validly disclaimed coverage of the offending vehicle (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629 [2004]; Matter of Eagle Ins. Co. [Villegas—State Farm Mut. Auto. Ins. Co.], 307 AD2d 879 [2003]; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496 [2003]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579 [1998]). Accordingly, we remit the matter to the Supreme Court, Kings County, for an evidentiary hearing on the issue of whether Allstate validly disclaimed coverage of the offending vehicle for the subject acccident (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, supra; Matter of Lumbermens Mut. Cas. Co. v Beliard, supra). Santucci, J.P., Krausman, Lifson and Dillon, 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, Kings County (Kathy J. King, J.), dated December 27, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee 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 affidavit by plaintiff’s employee 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. The court granted plaintiff’s motion for summary judgment and this 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 plaintiff’s moving papers. Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]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]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

To the extent defendant asks this court to search the record and grant it summary judgment, defendant is not entitled to such relief since, among other things, the record does not contain any proof that defendant’s denials were timely issued.

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, Kings County (Jack M. Battaglia, J.), entered November 18, 2005, deemed an appeal from a judgment entered on January 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2005 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the sum of $55,272.72.

Judgment reversed without costs, the branch of the November 18, 2005 order which 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, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint for lack of subject matter jurisdiction. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

While plaintiff listed in its complaint under the heading “First Cause of Action” all three of its claims for no-fault benefits, the recovery of which was assigned to it by three different assignors, it is clear that all three claims were separate and distinct and each was within the Civil Court’s monetary jurisdictional limit of $25,000 (CCA 202, 211; see Karp v Manhattan Mtge. Co., Inc., 11 Misc 3d 142[A], 2006 NY Slip Op 50699[U] [App Term, 1st Dept]). Therefore, the court below properly denied defendant’s cross motion to dismiss the action for lack of subject [*2]matter jurisdiction.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, 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. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the judgment is reversed, the branch of the order entered November 18, 2005 which granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 2007

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 January 25, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer 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 affidavit by plaintiff’s officer was insufficient to submit proof in admissible form. The court below denied the motion on
the ground that plaintiff failed to make a prima facie case. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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 was properly denied. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007

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 (Bernard J. Graham, J.), entered January 17, 2006. The order, insofar as appealed from, 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 an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal 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.

In opposition to plaintiff’s motion, defendant’s attorney stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at an examination under oath (EUO). As plaintiff [*2]correctly asserted, defendant was required to establish by proof in admissible form that the EUO scheduling letters were mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant submitted an affidavit from an administrative assistant who stated that the first request was forwarded to plaintiff’s assignor and that she forwarded a second request to plaintiff’s assignor. Her affidavit was insufficient because she did not state that she actually mailed the letters and since she did not set forth proof of defendant’s office practice or procedure designed to ensure that items are properly addressed and mailed, it did not give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, because defendant did not
establish that the EUO scheduling letters were mailed, defendant failed to raise a triable issue of fact.

In view of the foregoing, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the 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., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007