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 (George J. Silver, J.), entered July 11, 2005. The order, insofar as appealed from as limited by defendant’s brief, granted plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw .

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Herein, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [was submitted] in a timely manner” and that bills for the services rendered to the respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [*2][2005]). While a defendant insurer’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that defendant received the claims (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]), there are discrepancies herein between the claim
forms and denial of claim forms which are not explained on the record. Likewise, defendant’s letters to plaintiff did not set forth with sufficient particularity the specific claims to which the letters referred. Accordingly, since the denial of claim forms and letters are inadequate to establish receipt of the claim forms, and plaintiffs did not otherwise provide proof of proper mailing of the claim forms, the order of the court below is reversed and plaintiffs’ motion for summary judgment is denied (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 27, 2006

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant, Progressive Casualty Insurance Company, 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 December 22, 2004 [7 Misc 3d 18], as affirmed so much of an order of the Civil Court, Queens County (Markey, J.), entered March 19, 2003, as, in effect, denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, by permission, as limited by its brief, from so much of the same order as reversed that portion of the same order of the Civil Court which, in effect, granted its cross motion for summary judgment, and substituted a provision denying its cross motion.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant, Progressive Casualty Insurance Company (hereinafter Progressive), denied the claim of the plaintiff, Stephen Fogel Psychological, P.C. (hereinafter Fogel), as assignee of Kim Choy Chong (hereinafter Kim), for no-fault benefits on the ground that Kim had failed to appear for independent medical examinations (hereinafter IMEs) that Progressive demanded before [*2]Fogel submitted the statutory claim forms. Fogel brought this action seeking payment. Progressive moved for summary judgment on the ground that, by failing to appear for the IMEs, Kim had breached a condition precedent to payment on the policy. Fogel cross-moved for summary judgment on the expressly limited ground that, assuming Kim had failed to appear for the IMEs, Fogel was still entitled to payment on the policy for charges incurred before Kim’s failure to appear. The Civil Court, in effect, denied Progressive’s motion and, in effect, granted Fogel’s cross motion. The Appellate Term modified the Civil Court’s order to the extent of denying Fogel’s cross motion and otherwise affirmed the order. We affirm the order of the Appellate Term.

In support of its motion for summary judgment, Progressive was required to establish, prima facie, that it mailed the notices of the IMEs to Kim and that he failed to appear for the IMEs. Progressive failed to meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the mailings or of the nonappearances (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Given Progressive’s failure to meet its burden, denial of its motion was required without consideration of Fogel’s opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

With respect to the cross appeal, the Appellate Term correctly denied Fogel’s cross motion for summary judgment. We agree with the Appellate Term that appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [2004]). The mandatory personal injury endorsement (11 NYCRR 65.12, now 11 NYCRR 65-1.1) provides that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1).

We disagree, however, with the Appellate Term that there is a distinction between the contractual remedies depending on whether the failure to appear for IMEs occurs before submission of the claim form or after its submission. There is no basis for such a distinction, and we decline to impose one. 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). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_medicalexaminations.htm]). The State Insurance Department’s interpretation is entitled to deference unless “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]). This conclusion furthers, as well, the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224-225 [1986]) and preventing fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]).

Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs “when, and as often as, the [insurer] may reasonably require” (11 [*3]NYCRR 65-1.1). Thus, Fogel’s cross motion for summary judgment was properly denied. Crane, J.P., Krausman, Spolzino and Skelos, 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 (Alice Fisher Rubin, J.), entered August 8, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which, pursuant to CPLR 3126, sought an order dismissing the action due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, plaintiff’s counsel did not assert a basis of his personal knowledge of the facts and did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; People v Kennedy, 68 NY2d 569 [1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant issued a denial of claim form, said claim denial merely established that defendant received a claim form submitted by, or on behalf of, plaintiff, but it did not concede the admissibility of the purported claim form or the facts set forth therein (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]). In light of plaintiff’s counsel’s apparent lack of [*2]personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra).

Although plaintiff subsequently served an affidavit executed by its president, the affidavit, which was denominated a “Supplemental Affidavit,” was in reality a reply affidavit. Plaintiff could not establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in plaintiff’s moving papers (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D., P. C., 241 AD2d 439 [1997]; Calderone v Harrel, 237 AD2d 318 [1997]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Although defendant’s cross motion to, inter alia, compel discovery was unopposed, the discovery demands annexed to defendant’s cross motion pertained to a different action involving a different plaintiff and a different assignor. As a result, it is unclear what discovery demands defendant served in this action. Accordingly, defendant’s cross motion to, inter alia, compel discovery should be denied with leave to renew upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize 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.
Decision Date: December 15, 2006

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 (Peter Paul Sweeney, J.), entered September 14, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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 to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses 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]). The denial of claim forms, annexed to plaintiff’s moving papers, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant established that it mailed denial forms within the prescribed 30-day period (11 NYCRR 65-3.8 [c]) through the affidavit of defendant’s representative detailing the standard office procedure for such mailing, which affidavit was sufficient to give rise to the presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Attached to each denial form was a detailed peer review report which purported to be “affirmed” by defendant’s doctor pursuant to CPLR 2106. They contained a stamped facsimile of the doctor’s signature. On appeal, plaintiff objects, as it did in the court below, to the admissibility [*2]of the reports on the ground that they did not comply with CPLR 2106. In our view, under the circumstances presented, the peer review reports were not in admissible form (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632
[1971]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 102 [1965]) and, thus, defendant has failed to raise a triable issue of fact as to medical necessity. We note in passing that there is nothing in the record to indicate that the doctor himself stamped his signature. In view of the foregoing, plaintiff is entitled to summary judgment 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 and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

In my view, the stamped facsimile of the doctor’s signature does not render his affirmed peer review reports inadmissible. General Construction Law § 46 states, “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing” (emphasis added) (see also Rulle v Ivari Intl., 192 Misc 2d 266 [App Term, 2d & 11th Jud Dists 2002]). Consequently, even if the doctor’s signature was stamped, it is sufficient to comply with CPLR 2106, which requires the statement to be “subscribed and affirmed.”

Accordingly, defendant’s submissions raise a triable issue of fact as to medical necessity, and I would vote to affirm.
Decision Date: December 15, 2006

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 (Lila Gold, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2005]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of any of the appended claim forms to defendant. However, said deficiency was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and defendant received, said claim forms (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]).

This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon a lack of medical necessity, the defendant is precluded from asserting said defense (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists]; SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s NF-10 denial of claim forms merely advised plaintiff that the claims were denied pursuant to peer review reports [*2]and that a copy of these reports would be furnished upon written request. Since there is no evidence that the peer review reports were sent to plaintiff within the 30-day claim determination period, and the denials were otherwise devoid of any factual basis to support them, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], supra) and plaintiff is entitled to summary judgment upon said claims.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with 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.
Decision Date: December 13, 2006

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 (Lila Gold, J.), entered November 7, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York,
49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In this action to recover assigned, first-party no-fault benefits, plaintiff’s moving papers did not establish that plaintiff ever submitted the subject claim form to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent plaintiff’s counsel submitted a reply affirmation in which counsel attempted to introduce a purported verification request allegedly sent by defendant to plaintiff in an attempt to demonstrate, for the first time, a critical element of plaintiff’s prima facie case, such evidence was neither in admissible form nor properly before the court (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D.,
P.C., 241 AD2d 439 [1997]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). As a result,plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Golia and Belen, 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 (Eileen Nadelson, J.), entered September 9, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms to defendant (see A.B. Med. Servs. v State
Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim forms by demonstrating proof of proper mailing, which gives rise to the presumption that the claim forms were received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer was insufficient to establish that plaintiff mailed the claims to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendants and, as such, has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th [*2]Jud Dists 2004]). Furthermore, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its moving papers two delay letters from defendant is unavailing since said letters did not specifically refer to the claims at issue in that they did not set forth the amounts of the claims. Accordingly, since plaintiff failed
to establish its prima facie entitlement to summary judgment, the lower court properly denied its motion.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 12, 2006

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 (Bernice Daun Siegal, J.), entered September 30, 2005. The order denied plaintiff’s motion for partial summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment. Three of plaintiff’s five claim forms indicate that the treating health care providers were independent contractors. Where a billing provider seeks to recover no-fault benefits for services which were not
rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the health care services rendered within the meaning of 11 NYCRR 65-3.11 (a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (see Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d & 11th Jud Dists]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). The [*2]remaining two claim forms have “N/A” typed in the box in which the business relationship of the treating provider was to be provided. Such lack of specificity does not establish plaintiff’s prima facie entitlement to summary judgment as a matter of law inasmuch as it fails to exclude all triable issues of fact. Accordingly, plaintiff’s motion for partial summary judgment was properly denied.

We pass on no other issue.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
V.S. MEDICAL SERVICES, P.C.
A/A/O MIRIAM MALDONADO,
Appellant,

-against-

NEW YORK CENTRAL MUTUAL FIRE INSURANCE CO.,
Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize 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.
Decision Date: December 11, 2006

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 (Peter Paul Sweeney, J.), entered January 31, 2005. The order denied the petition to vacate the master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Avenue N Medical, PC (Avenue) initiated this compulsory arbitration proceeding against New York Central Mutual Fire Insurance Company to recover $2,167.07 in first-party no-fault benefits for medical services rendered to its assignor for injuries he
sustained in an automobile accident. Following an arbitration hearing, by award dated February 18, 2004, the arbitrator denied Avenue’s claim, which decision Avenue appealed to the master arbitrator. By award dated August 13, 2004, the master arbitrator affirmed the arbitrator’s award. Avenue then commenced the instant special proceeding to vacate the award of the master arbitrator. By order entered January 31, 2005, the court below denied the petition.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator (see e.g. Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d [*2]442 [1980]). Consequently, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 11, 2006