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 19, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff’s prima facie case to recover first-party no-fault benefits (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, due to plaintiff’s failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied
plaintiff’s motion for summary judgment (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]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129[A], 2006 NY Slip Op 50293[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130[A], 2005 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]).

As for defendant’s cross motion, it, too, should have been denied. Other than defense counsel’s conclusory affirmation stating that plaintiff “cannot show” timely mailing, defendant offers no admissible proof to establish that it never received plaintiff’s claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie [*2]showing entitling it to judgment as a matter of law.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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 (Dolores J. Waltrous, J.), entered August 16, 2005. The order, inter alia, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126.

Order affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 24, 2004, plaintiff was directed, among other things, to appear for a deposition no later than November 12, 2004. The stipulation further provided, in relevant part, that:
“[i]f [plaintiff] fails to appear for said EBT [plaintiff] shall be precluded from offering evidence [at] trial.

***
ALL DATES CONTAINED HEREIN RELATING TO COMPLETION OF ITEMS IN THIS ORDER MUST BE ADHERED TO. COUNSEL MAY NOT ENTER INTO ANY [*2]ADJOURNMENTS WITHOUT FURTHER ORDER OF THIS COURT, [e]xcept for [plaintiff’s] summary judgment motion” (emphasis in original).

Plaintiff failed to appear at the deposition and, instead, moved for summary judgment just prior to the date plaintiff was required to appear. Defendant cross-moved to strike plaintiff’s pleadings and dismiss the complaint or, alternatively, to preclude plaintiff from introducing evidence at trial based on plaintiff’s failure to appear at the deposition. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss, noting that plaintiff failed to appear at the deposition as directed. Plaintiff now appeals claiming, among other things, that the filing of its motion for summary judgment stayed all discovery and, thus, there was no requirement to appear on the scheduled date.

While CPLR 3214 (b) automatically stays discovery during the pendency of a summary judgment motion, it should not be invoked in this case where the court plainly directed otherwise. Pursuant to the so-ordered stipulation, plaintiff was to appear at a deposition on or before November 12, 2004 or face preclusion, and no extension of this date would be permitted without prior court approval. The stipulation unequivocally required prior court approval for any adjournments of dates set forth in the stipulation, “[e]xcept for [plaintiff’s] summary judgment motion.” Thus, while plaintiff was permitted to adjourn its time to file its summary judgment motion without prior court approval, this permission did not extend to any other deadlines set forth in the so-ordered stipulation. By requiring prior court approval, the court made clear that strict compliance with discovery was required, regardless of whether a summary judgment motion was served.

Plaintiff’s service of the summary judgment motion just before it was required to appear was nothing more than a ploy to avoid the court’s directives. Such flagrant disregard of a court order should not be condoned.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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 (Diccia T. Pineda-Kirwan, J.), entered June 16, 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 an action to recover assigned first-party no-fault benefits, a plaintiff 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]; 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, by annexing to its moving papers defendant’s claim denial form, the contents of which corresponded to the appended claim forms, plaintiff established that it sent and that defendant received the claims in question (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op [*2]50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s prima facie entitlement to summary judgment as to the aforementioned claims was established, and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, defendant’s denial of claim form indicated that defendant did not deny the claims within 30 days of their receipt. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof of having done so. The affidavit of defendant’s special investigator stated that the policy in effect at the time of the accident required an eligible injured person to submit to an examination under oath (EUO) if reasonably requested, and referred to documents to show that EUOs were in fact requested of plaintiff’s assignor. There were, however, no evidentiary submissions to establish that said requests were mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Thus, defendant’s time to deny the claim was not tolled, the denial was untimely and defendant was precluded from raising most defenses as a result of its untimely denial (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While defendant is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., “a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]). Accordingly, 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 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 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 (Eileen Nadelson, J.), entered September 9, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on January 10, 2006. The judgment, entered pursuant to the September 9, 2005 order granting plaintiff partial summary judgment, awarded plaintiff the sum of $2,580.09, including interest, costs and attorney’s fees.

Judgment 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 [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]). In the instant case, with respect to the appended claim forms for the amounts of $614.33, $300, $400 and $400, plaintiff established that it sent and that defendant received same by annexing to its moving papers defendant’s denial of claim forms corresponding thereto (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud [*2]Dists]). Accordingly, plaintiff established its prima facie entitlement to summary judgment as to the aforementioned claims and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s assertion that it timely denied the claims based on the assignor’s failure to appear for scheduled independent medical examinations (IMEs) and nonconformity with the Workers’ Compensation fee schedule is lacking in merit. While
a post-claim IME verification request may toll the 30-day statutory period within which an insurer has to pay or deny a claim (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]), the affidavit of defendant’s no-fault specialist was insufficient to establish the mailing of the IME request letters since she neither alleged that she had personal knowledge that said request letters were mailed nor set forth a sufficiently detailed description of defendant’s standard office mailing practice or procedure so as to give rise to the presumption of mailing (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). As a result, defendant failed to establish that the 30-day statutory time period within which it had to pay or deny plaintiff’s claims was tolled. Since defendant failed to establish that it timely denied plaintiff’s claims, it is precluded from asserting its defenses of lack of medical necessity and that the fees charged by plaintiff were excessive (see Presbyterian Hosp. in Cityof N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Therefore, the lower court properly granted plaintiff’s motion to the extent of awarding it partial summary judgment as to its claims in the sums of $614.33, $300, $400 and $400.

Pesce, P.J. Weston Patterson and Belen, JJ., concur.
Decision Date: November 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 (Ellen Spodek, J.), entered March 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.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for no-fault benefits (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 442 [1980]). Accordingly, 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. [*2]
Decision Date: November 15, 2006

—[*1]

In an action to recover no-fault medical payments, the defendants appeal from an order of the Supreme Court, Nassau County (Joseph, J.), dated October 31, 2005, which granted the motion of the plaintiff New York and Presbyterian Hospital for summary judgment on the third cause of action and denied the defendants’ cross motion for summary judgment dismissing that cause of action.

Ordered that the order is affirmed, with costs.

In support of its motion for summary judgment on the third cause of action, the plaintiff New York and Presbyterian Hospital, as assignee of William Browne, made a prima facie showing of entitlement to judgment as a matter of law by submitting a hospital bill with a signed certified mail return receipt and by submitting the affidavit of its third-party biller, who attested that he billed the defendants for the subject medical treatment and that the defendants failed to pay the claim or issue a denial of claim form (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). In opposition to the motion the defendants failed to raise a triable issue of fact, and in support of their cross motion for summary judgment dismissing the third cause of action the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law. The defendants’ failure to timely object to the adequacy of the claim forms or seek verification of the assignment constituted a waiver of any defenses based thereon (see Nyack Hosp. v Encompass Ins. [*2]Co., 23 AD3d 535 [2005], lv denied 7 NY3d 741 [2006]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]).

Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Schmidt, J.P., Adams, Skelos and Covello, 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 26, 2005. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, the court below denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment on the ground that neither party had established its prima facie entitlement to judgment as a matter of law by competent
proof in admissible form. Defendant appeals from so much of the order as denied its cross motion for summary judgment and we affirm.

Defendant timely denied the claim citing a peer review report which, according to the denial form, “revealed that the service provided was not medically necessary.” The denial form did not indicate that the peer review report was attached to the denial. Nor did defendant’s affiant state in its cross motion papers that the report was ever mailed to plaintiff, much less that defendant did so within 30 days of the claim’s receipt. The denial form otherwise contained no facts to satisfy the statutory claim form’s requirement that the insurer: “State reason for denial, [*2]fully and explicitly (attach extra sheets if needed)”. Even a timely denial does not avoid the preclusion sanction “where said denial is factually insufficient, conclusory or vague” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]; see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). While an insurer is not required to attach the peer review report to its denial of claim form (as implied by 11 NYCRR 65-3.8 [b] [4]), in such a case the denial form itself must set forth, with the requisite particularity, the factual basis and medical rationale for the denial (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11thain Jud Dists 2005]), or at the very least, the insurer must supply claimant with the report within 30 days of the claim’s receipt, absent a tolling of the statutory claim determination period (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 2006]). As defendant proved compliance with neither rule, it is precluded from asserting the defense (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra [a denial form’s factual insufficiency with respect to a lack of medical necessity defense is not cured by attaching a peer review report to papers opposing a motion for summary judgment]). In the absence of any other ground to support its cross motion, defendant failed to establish its prima facie entitlement to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 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, Queens County (Timothy J. Dufficy, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts 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 deficiencies, if any, with regard to plaintiff’s proof of mailing were “cured by defendant’s acknowledgment of receipt on its denial form” which was attached to plaintiff’s papers (Fair Price Med. Supply Corp. v ELRAC Inc. & Enterprise Rent-A-Car, 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists 2006]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). The denial form, dated [*2]December 3, 2003, alleged that defendant issued a verification request on November 17, 2003, 66 days after the claims’ receipt (September 12, 2003). Even if proof of such verification request had been presented in admissible form, the request was untimely (11 NYCRR 65-3.5 [a], [b]; 11 NYCRR 65-3.8 [a], [1]). Under the circumstances, defendant’s denial was untimely (11 NYCRR 65-3.8 [a] [1], [c]), precluding most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The untimely denial, however, did not preclude defendant from interposing the defense that the assignor’s injuries were not causally related to the accident (e.g. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]), that is, that there was no causal nexus between the accident and the injuries for which the assignor was treated (Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; see Valentine v Grossman, 283 AD2d 571, 572 [2001]). An accident analysis report in the form of a “low impact study” can be a proper basis for a denial (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]), “provided it is in admissible form” (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U], supra). However, defendant’s report was not in admissible form (see Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). Recognizing the deficiency, defendant resubmitted the report in admissible form, but only for the first time in sur-reply when plaintiff had no opportunity to respond to its content (Dannasch v Bifulco, 184 AD2d
415, 416 [1992]). The court below declined to consider the affidavit, and matters disregarded below as improperly raised in reply may not be considered on appeal (e.g. Wager v Hainline, 29 AD3d 569 [2006]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 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 (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied the branches of plaintiff’s motion which sought summary judgment upon plaintiff’s claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from the denial of the branches of its motion for summary judgment which sought to
recover upon its claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003. Plaintiff asserts that defendant’s denial of claim forms (NF-10) were defective because rather than fully and explicitly setting forth the basis for the denials, the NF-10s stated that plaintiff’s claims were denied based upon a peer review report, a copy of which accompanied the NF-10s. Where, as here, the insurer establishes that it provided a factually sufficient peer review report to plaintiff within the 30-day claim determination period, an NF-10 which states that the claim was denied based upon the peer review report provided to plaintiff is sufficient to preserve a defense of lack of medical necessity (see Psychological Practice, P.C. v Kemper Auto & Home Ins. Co., 12 Misc 3d 137[A], 2006 NY [*2]Slip Op 51289[U] [App Term, 2d & 11th Jud Dists]; Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]; see also 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 view of the fact that defendant’s opposition to plaintiff’s summary judgment motion included an affidavit from the peer reviewer which incorporated the unsworn peer review report, plaintiff was not entitled to summary judgment upon its claims in the
amounts set forth in the aforesaid claim forms (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 08, 2006

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Fernando Castillo-Gomez appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated August 15, 2005, which denied his motion to dismiss the proceeding as untimely and granted the petition.

Ordered that the order is reversed, on the law, with costs, and the appellant’s motion to dismiss the proceeding as untimely is granted.

The appellant claimed that he was injured as a result of an accident on March 30, 2003 caused by an allegedly uninsured vehicle. On April 9, 2003 his attorney sent to his insurer, the petitioner Government Employees Insurance Company (hereinafter Geico) a letter by certified mail, return receipt requested, claiming no-fault insurance benefits, uninsured motorist benefits, and supplemental uninsured motorist (hereinafter SUM) benefits. The letter contained a statement pursuant to CPLR 7503 (c) that the appellant “intends and provides this notice of claimant’s intention to demand arbitration” and that Geico would be precluded from objecting, inter alia, that a valid agreement had not been made or complied with unless it applied to stay arbitration within 20 days after receipt of the notice.

By document entitled “Request for SUM Policy Arbitration” received May 3, 2005, [*2]the appellant notified Geico that he was demanding arbitration before the American Arbitration Association. Within 20 days of receipt of this demand, Geico commenced this proceeding to stay arbitration on the ground that the offending vehicle was insured on the date of the accident. The appellant moved to dismiss on the ground that the proceeding was not timely commenced, relying on the letter dated April 9, 2003 containing his notice of intention to arbitrate.

The Supreme Court stayed arbitration, finding that the proceeding was timely. It determined that the letter dated April 9, 2003 was not a valid demand for arbitration as it did not contain all of the information required by the American Arbitration Association Rules governing arbitration of SUM disputes, and thus, the 20-day period would be measured from the later demand for arbitration. This was error.

Where an insurance policy contains an agreement to arbitrate, CPLR 7503 (c) “requires a party, once served with a demand for arbitration, to move to stay such arbitration within 20 days of service of such demand, else he or she is precluded from objecting” (Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084 [1996]). The validity of the 20-day limitation depends on compliance with the requirements of CPLR 7503 (c) (see State Farm Mut. Auto. Ins. Co. v Szwec, 36 AD2d 863 [1971]) and not those of the rules promulgated by the American Arbitration Association. Since the appellant’s April 9, 2003 notice of intention to arbitrate complied with all of the statutory requirements, it was sufficient to commence the 20-day period of limitations (see Matter of Blamowski [Munson Transp.], 91 NY2d 190, 195 [1997]). Accordingly, the instant proceeding to stay arbitration, which was commenced more than 20 days after service of the intention to arbitrate, is time-barred (see Matter of Transportation Ins. Co. v Desena, 17 AD3d 478 [2005]; Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500 [1998]). Florio, J.P., Schmidt, Krausman and Lifson, JJ., concur.