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 16, 2005, deemed an appeal from a judgment of the same court entered May 16, 2006 (see CPLR 5501 [c]). The judgment, which awarded plaintiff the sum of $4,518.30, was entered pursuant to the order entered September 16, 2005 which, upon reargument, adhered to the prior determination granting plaintiff’s motion for summary judgment.

Judgment reversed without costs, order entered September 16, 2005 vacated and, upon reargument, plaintiff’s motion for summary judgment denied.

In this action by a health care provider 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, facts set forth in an attorney’s affirmation are of no probative value absent the attorney’s assertion of a basis for his or her personal knowledge of the facts (Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim forms were admissible under the business records exception to the hearsay rule (see CPLR 4518; see also People v Kennedy, 68 NY2d 569 [*2][1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant may have issued claim denial forms, said claim denials merely established that defendant received claim forms submitted by, or on behalf of plaintiff, but they did not concede the admissibility of the purported claim forms or the facts set forth therein. In light of plaintiff’s counsel’s apparent lack of 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; People v Kennedy, 68 NY2d 569, supra; Zuckerman v City of New York, 49 NY2d 557, supra; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Stahl v Stralberg, 287 AD2d 613 [2001]).

We note that even if plaintiff had established a prima facie case, in the instant matter, defendant’s opposition to plaintiff’s motion for summary judgment amply demonstrated the existence of a triable issue of fact as to whether “the alleged injur[ies] do[] not arise out of an insured incident,” a defense which may be raised for the first time in opposition to plaintiff’s motion for summary judgment (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, upon reargument, the court should have denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557, supra).

Pesce, P.J., Weston Patterson 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, Queens County (Timothy J. Dufficy, J.), entered August 11, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon the submission of proper papers.

Appeal held in abeyance and matter remanded to the court below to report whether the affidavit of plaintiff’s corporate officer included in plaintiff’s summary judgment motion papers as part of the record on appeal was the same affidavit as was submitted to the motion court. The Civil Court shall file its report with all convenient speed.

In an action to recover 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, plaintiff’s motion for summary judgment was supported by an affirmation of counsel and an affidavit of an officer of plaintiff provider, neither of which were sufficient to establish that the claim forms were submitted to defendant. However, plaintiff’s motion papers also contained copies of defendant’s denial of claim forms which acknowledge [*2]receipt of the claims on various specified dates. Such acknowledgment ordinarily cures any deficiencies in the motion papers with respect to the submission of the claim forms (see e.g. Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Nevertheless, the court below based its decision denying plaintiff’s motion for summary judgment, in part, upon the fact that the affidavit of plaintiff’s officer was both “signed in blank” and undated. The record on appeal, however, indicates that the affidavit submitted with the motion papers was signed and sworn to on a particular date.

Because of this discrepancy, we are unable to make a determination as to whether the affidavit submitted to the court below on the motion is the same affidavit as the one subject to review on this appeal. Accordingly, the matter is remanded to the court below to report whether the affidavit contained in the record on appeal was the same affidavit as was considered by the motion court.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 02, 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 L. Waltrous, J.), entered February 28, 2005. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s application to convert the action to a special proceeding to vacate the master arbitrator’s award.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical services provided by plaintiff, the court below granted defendant’s motion to dismiss the complaint. The court properly determined that plaintiff was not entitled to commence the instant action to adjudicate the dispute de novo, pursuant to Insurance Law § 5106 (c), since the master arbitrator’s award was less than $5,000. Contrary to plaintiff’s contention, Insurance Law § 5106 (c) is unambiguous and must be construed by a court so as to give effect to the plain and ordinary meaning of the words used, without limiting or extending its plain language (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 106-107 [1997]; McKinney’s Cons Laws of NY, Book 1, Statutes § 94). Insurance Law § 5106 (c) clearly indicates that the amount of the master arbitrator’s award must be at least $5,000 before an insurer or claimant may institute an [*2]action to adjudicate the dispute de novo. As the Court of Appeals noted in Matter of Greenberg (Ryder Truck Rental) (70 NY2d 573, 577 [1987]), “[t]he $5,000 award provision is simply a threshold to acquiring the de novo court adjudication.” Since the master arbitrator’s award herein was $2,024.50, the claimant may not commence an action to adjudicate the dispute de novo pursuant to Insurance Law 5106 (c).

In the event that the court disagreed with its trial de novo arguments, plaintiff made an application to convert the action, pursuant to CPLR 103 (c), to a special proceeding to vacate the master arbitrator’s award. It is well settled that “courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, making whatever order is necessary for its prosecution” (Matter of First Nat. City Bank v City of New York Finance Admin., 36 NY2d 87, 94 [1975]). We find, however, that conversion is inappropriate under the particular circumstances of this case (see Colonial Penn Ins. Co. v D’Aguilar, 151 AD2d 716 [1989]). The language of the complaint demonstrates that plaintiff elected to commence the instant action for a trial de novo on the erroneous ground that the master arbitrator’s award was $5,000 or more. Neither in the complaint nor in plaintiff’s moving papers in support of its motion does plaintiff assert any CPLR 7511 (b) or 11 NYCRR 65-4.10 ground for vacating the master arbitrator’s award. Accordingly, the court below properly denied plaintiff’s CPLR 103 (c) application.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 02, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Richmond County (Judith N. McMahon, J.), dated February 23, 2005, deemed (CPLR 5520 [c]) an appeal from a judgment of the same court entered August 12, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,666.17, plus interest and attorney’s fees (see 8 Misc 3d 423 [2005]).

Judgment reversed without costs and judgment directed to be entered in favor of defendant dismissing the action.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor, specifically three magnetic resonance imagings
(MRIs) of the brain, lumbosacral spine and cervical spine. At trial, after the parties stipulated to the admission of documents to establish plaintiff’s prima facie case, defendant’s expert medical witness, who had performed a peer review on defendant’s behalf, testified that the MRI services rendered to plaintiff’s assignor were not medically necessary. The trial court found that since plaintiff diagnostic center merely performed MRIs pursuant to the instructions of its assignor’s examining physician, and did not itself physically examine the patient, it could not, as a matter of law, be denied first-party no-fault benefits based upon a lack of medical necessity. Accordingly, the court awarded judgment to plaintiff and this appeal ensued.

A plaintiff provider’s “proof that it submitted completed claim forms setting forth the fact [*2]and the amount of the loss sustained, and that payment of no-fault benefits was overdue” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50650[U] [App Term, 2d & 11th Jud Dists]; see also Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]) establishes “a prima facie case of medical necessity on plaintiff’s motion for summary judgment. . . [thereby shifting the burden] to defendant who, if not precluded, may . . . establish the lack of medical necessity by submitting proof . . . that the health benefits provided were not medically necessary” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21-22 [App Term, 2d & 11th Jud Dists 2004]). Similarly, in the context of this trial, plaintiff’s submissions established a prima facie entitlement to judgment as a matter of law by proof of the submission of the claim forms. The burden then shifted to defendant to come forward with sufficient evidence to rebut the presumption of medical necessity which “attaches to plaintiff’s claim forms” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d at 23). Where the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity (see Prince, Richardson on Evidence §§ 3-104, 3-202 [Farrell 11th ed]).

In the instant case, after plaintiff established its prima facie case, defendant’s expert, Dr. McDonald, presented unrebutted testimony to the effect that the MRIs for which the plaintiff sought payment were medically unnecessary. While the court below was free to assess and reject her uncontradicted expert opinion (see Vasquez v Jacobowitz, 284 AD2d 326 [2001]; Mechanick v Conradi, 139 AD2d 857, 859 [1988]; 58A NY Jur 2d, Evidence and Witnesses § 676), the court never indicated that it was deciding the case based upon an evaluation of Dr. McDonald’s testimony, but instead came to the conclusion that a diagnostic center, which performs MRIs at the request of an independent treating or examining physician, but which does not itself perform a physical examination upon a patient-assignor, may not, as a matter of law, be denied first-party no-fault benefits by an insurer which asserts a defense of lack of medical necessity. We disagree with the conclusion of the trial court.

Under the Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law art 51), more commonly known as the No-Fault Law, “first party benefits” are available to reimburse persons for “basic economic loss” resulting from injuries “arising out of the use or operation of a motor vehicle” (Insurance Law § 5102 [b]). Insurance Law § 5102 (a) (1) defines “basic economic loss” as including, inter alia, “[a]ll necessary expenses incurred for: (i) medical, hospital . . ., surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services” and “(iv) any other professional health services.” The Mandatory Personal Injury Protection Endorsement (11 NYCRR 65-1.1 [d]) defines “medical expenses” as consisting of “necessary expenses” for the services which are enumerated in the statute. Nowhere in the statutory or regulatory scheme is there any suggestion that services rendered by diagnostic centers or, for that matter, medical equipment suppliers, laboratories, or radiological facilities, all of which rely upon prescriptions or referrals from treating or examining medical providers, be exempt from the requirement that said services be “medically necessary.” While it may be argued that a diagnostic center is in no position to establish the medical necessity of a prescribed MRI, it is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor (see Matter of International Ribbon Mills [Arjan Ribbons], [*3]36 NY2d 121 [1975]). If a claim is not assigned, and is submitted to the insurer directly by the eligible injured person, the insurer may assert a defense of lack of medical necessity which, if established, will shift the burden to the eligible injured person to provide his or her own evidence of medical necessity. If the defense may be asserted against the eligible injured person, it follows that it may be asserted against the provider as well. Moreover, “[t]o permit medical providers to receive reimbursement even when the insurer has proven that the service provided was not medically necessary would encourage fraud, rather than combat it . . . . In fact, the construction urged by plaintiff would require insurers to pay for MRIs of the entire spine when the insured suffered a broken toe, or for full body scans for broken arms” (Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 439 [2005]).

In the exercise of our power to make new findings of fact (see CPLR 5501 [c]; see generally 5712 [c] [2]), based upon our review of the record, we find that after plaintiff made out its prima facie case, defendant’s expert’s testimony regarding the lack of medical necessity was sufficient to demonstrate a lack of medical necessity and, therefore, to shift the burden back to plaintiff to show that the MRIs were, in fact, medically necessary. Plaintiff, in response, failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the services rendered to its assignor were medically necessary. Accordingly, plaintiff was not entitled to judgment in its favor. The judgment, therefore, should be reversed, and judgment should be entered in favor of defendant dismissing the action.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 29, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from a judgment of the Civil Court of the City of New York, Kings County (Bernadette F. Bayne, J.), entered March 8, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,499.64.

Judgment affirmed without costs.

At the trial of this action to recover first-party no-fault benefits for medical services provided plaintiff’s assignor, plaintiff’s witness, an employee of its billing company, testified to the company’s business practices in generating and mailing no-fault benefits applications to insurers based upon information received from its clients,
the providers of the medical services. Defendant objected below that the witness was incompetent to establish the reliability, prima facie, of the information recorded therein. However, it is well-settled that where an entity “routinely relies upon the business records of another entity in the performance of its own business” (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]; see People v DiSalvo, 284 AD2d 547, 548 [2001]), and “fully incorporate[s]” said information into records made in the regular course of its business (Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [1986]), the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s [*2]accuracy (William Conover, Inc. v Waldorf, 251 AD2d 727, 728 [1998]). The lack of knowledge goes “to the weight, not the admissibility” of the record (id.).

Plaintiff otherwise established the business record foundation for the admission of the records produced on the basis of the information imparted by plaintiff to the billing company (CPLR 4518 [a]; People v DiSalvo, 284 AD2d at 548), that said information was maintained in the regular course of plaintiff’s business, and that plaintiff had a business duty to impart that information to the billing company (People v Cratsley, 86 NY2d 81, 90 [1995]).

Defendant’s argument with respect to the proof of assignment is likewise without merit. Defendant admits that “there is proof that some assignment of benefit form was mailed and received” and that its claim denial form records that plaintiff sought no-fault benefits “as [the eligible injured person’s] assignee.” Having received such a form, it was defendant’s burden to timely object to the completeness of the form or seek verification of the fact of the assignment, and its failure to do so waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered August 10, 2004. The judgment, after a nonjury trial, and upon the denial of defendant’s motion for judgment as a matter of law pursuant to CPLR 4401, awarded plaintiff the principal sum of $1,061.63.

Judgment reversed without costs, defendant’s motion which was for judgment as a matter of law granted, and complaint dismissed.

In this action to recover first-party no-fault benefits for health care services rendered to plaintiff’s assignor, at the close of plaintiff’s case defendant moved pursuant to CPLR 4401 for judgment as a matter of law. The court reserved decision until after defendant presented its case, and then denied the motion, which defendant had renewed, and awarded judgment to plaintiff in the principal amount sought.

Whether considered solely on plaintiff’s proof or upon all the evidence presented, defendant’s motions should have been granted. Plaintiff rested its case without calling any witnesses. As its only proof, plaintiff offered into evidence, without objection, defendant’s [*2]response to a written interrogatory which established only that defendant received from plaintiff several bills on a given date, and that defendant timely denied these bills on the ground of the absence of medical necessity for the health care services provided. As a matter of law, plaintiff failed to establish the fact and the amount of the loss sustained and that payment of no-fault benefits was overdue by proof that it submitted to defendant “prescribed statutory billing forms” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2004]; see Amaze Med. Supply v Eagle Ins. Co., 2
Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]) or its substantial equivalent (11 NYCRR 65-3.5 [f]). Accordingly, plaintiff failed to make out a prima facie case.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 21, 2006

—[*1]

Motion by the appellant for leave to reargue an appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Bucaria, J.), dated February 17, 2004, which was determined by decision and order of this Court dated May 23, 2005 [18 AD3d 756], or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is for leave to reargue is granted; and it is further,

Ordered that the motion is otherwise denied; and it is further,

Ordered that upon reargument, the decision and order of this Court dated May 23, 2005 is recalled and vacated and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the [*2]appeal is from an order and judgment (one paper) of the Supreme Court, Nassau County (Bucaria, J.), dated February 17, 2004, which granted the petition.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

On May 13, 1999 the appellant was involved in an automobile accident with nonparty Rajinder Dharamshot. She filed a no-fault claim dated May 14, 1999 with her insurer, the petitioner Nationwide Mutual Insurance Company (hereinafter Nationwide), and initially received no-fault benefits from Nationwide. Those benefits were cancelled in October 1999 after Nationwide conducted an independent medical examination of the appellant.

According to the appellant, while her injuries did not appear to be serious at first, they eventually proved to be serious. As a result, in June 2000 she commenced an action against Dharamshot. The appellant’s counsel subsequently learned, on or about April 25, 2001, that Dharamshot’s policy was limited and less than the appellant’s. Accordingly, by letter of April 26, 2001, he notified Nationwide that the appellant would be making a claim for underinsured coverage under the SUM provisions of her policy (hereinafter the SUM coverage).

By letter dated May 14, 2001, Nationwide asked the appellant to fill out a 25-page questionnaire. Before she could comply, by letter dated May 25, 2001, Nationwide disclaimed coverage based on the appellant’s failure to timely notify it of her SUM (underinsured motorist) claim, and failure to forward the summons and complaint in her personal injury action to it.

In April 2002 after Dharamshot’s carrier tendered its policy, Nationwide indicated that it had no objection to the appellant accepting the full policy and settling with Dharamshot. After Nationwide received the appellant’s demand for arbitration, it commenced this proceeding to stay the arbitration. The Supreme Court agreed and granted the petition without a hearing, finding that the appellant failed to timely comply with the notification provisions of her policy with Nationwide. We reverse.

Under Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 475-476 [2005]) where, as here, there was timely notice of the accident and a claim for no-fault benefits, the insurer must show that it was prejudiced before it can rely on the policy provisions requiring timely notice of the SUM claim and/or a claimant’s failure to promptly forward the claimant’s summons and complaint to it, to disclaim a demand for SUM coverage solely based on late notice by the claimant. Therefore, the Supreme Court should have held a hearing on the issue of prejudice to Nationwide prior to making a determination on its petition, and we remit the matter to the Supreme Court, Nassau County, for a hearing on the issue of prejudice to Nationwide and a new determination of the petition thereafter.

In light of this determination, we need not reach the appellant’s remaining contentions. Florio, J.P., Schmidt, Rivera and Lifson, JJ., concur.

—[*1]

In an action for a declaratory judgment, (a) the plaintiff appeals from so much of (1) an order of the Supreme Court, Nassau County (Parga, J.), entered March 23, 2005, as denied that branch of his motion which was for summary judgment declaring that he is not obligated to reimburse the defendant Incorporated Village of Lake Success for the money paid to him pursuant to General Municipal Law § 207-c, and granted the cross motion of the defendant Incorporated Village of Lake Success for summary judgment, in effect, declaring that the plaintiff is obligated to reimburse it for the money paid to him pursuant to General Municipal Law § 207-c, and (2) an order of the same court dated July 22, 2005, as denied his motion, in effect, for leave to reargue that branch of his prior motion which was for summary judgment declaring that the plaintiff is not obligated to reimburse it for the money paid to the plaintiff pursuant to General Municipal Law § 207-c and the prior cross motion, and (b) the defendant American Protection Insurance Company separately appeals from so much of (1) the order entered March 23, 2005, as denied that branch of its motion which was for summary judgment declaring that the defendant Incorporated Village of Lake Success is not entitled to a lien in the amount it paid the plaintiff pursuant to General Municipal Law § 207-c against any underinsured motorist arbitration award that is made to the plaintiff, and granted the cross motion of the Incorporated Village of Lake Success for summary judgment declaring that the [*2]defendant Incorporated Village of Lake Success is entitled to a lien against any award the plaintiff obtains in his arbitration for underinsured motorist benefits in the amount paid to him pursuant to General Municipal Law § 207-c, and (2) the order dated July 22, 2005, as denied its motion which was denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue that branch of its prior motion which was for summary judgment declaring that the plaintiff is not obligated to reimburse it for the money paid to the plaintiff pursuant to General Municipal Law § 207-c and the prior cross motion of the defendant Incorporated Village of Lake Success.

Ordered that the appeals from the order dated July 22, 2005 are dismissed, as no appeal lies from an order denying reargument (see Fischer v RWSP Realty, LLC, 19 AD3d 540 [2005]; Matter of Lloida W., 18 AD3d 665, 666 [2005]); and it is further,

Ordered that the order entered March 23, 2005 is reversed insofar as appealed from, on the law, the cross motion is denied, that branch of the plaintiff’s motion which was for summary judgment declaring that he is not obligated to reimburse the defendant Incorporated Village of Lake Success for the money paid to him pursuant to General Municipal Law § 207-c is granted, that branch of the motion of the defendant American Protection Insurance Company which was for summary judgment declaring that the defendant Incorporated Village of Lake Success is not entitled to a lien in the amount it paid the plaintiff pursuant to General Municipal Law § 207-c against any underinsured motorist arbitration award that is made to the plaintiff is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant Incorporated Village of Lake Success is not entitled to a lien in the amount it paid the plaintiff pursuant to General Municipal Law § 207-c against any underinsured motorist arbitration award that is made to the plaintiff, and that the plaintiff is not obligated to reimburse the defendant Incorporated Village of Lake Success for the money paid to him pursuant to General Municipal Law § 207-c; and it is further,

Ordered that one bill of costs is awarded to the appellants.

The plaintiff, a police officer employed by the defendant Incorporated Village of Lake Success (hereinafter the Village), was injured in the line of duty when an underinsured motorist collided with his police vehicle. Pursuant to General Municipal Law § 207-c, the Village paid the plaintiff’s salary and medical expenses during the period of his disability. The plaintiff received a settlement from the underinsured motorist’s liability insurer, and thereafter filed a claim for underinsured motorist benefits (hereinafter the UIM claim) with the defendant American Protection Insurance Company (hereinafter API), the insurer of the police vehicle. When the UIM claim was set down for arbitration, the Village sought to assert a lien against any arbitration award the plaintiff might recover from API, in the amount that the Village had paid to the plaintiff pursuant to General Municipal Law § 207-c. The Supreme Court determined that the Village had a lien against any such award. We reverse.

General Municipal Law § 207-c (1) provides, inter alia, that a village must pay an officer on its police force who is injured in the line of duty the “full amount of his regular salary or wages . . . until his disability arising therefrom has ceased,” in addition to covering the costs of “all medical treatment and hospital care necessitated by reason of such injury.” The Village predicates its entitlement to the lien it seeks on General Municipal Law § 207-c (6), which provides that “a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused [*3]by such third party.” Contrary to the Village’s position, that provision does not provide a basis for the lien it asserts here.

A municipality’s right, pursuant to General Municipal Law § 207-c (6), to the reimbursement of the salary and medical expenses it had previously paid to or on behalf of an officer injured in the line of duty, is subject to the limitations articulated in the no-fault provisions of Insurance Law § 5104 (see Village of Suffern v Baels, 215 AD2d 751 [1995]). Insurance Law § 5104 (a) limits the items of damage that may be recovered in an action commenced by a person injured in a motor vehicle accident against another motor vehicle operator or owner, here the uninsured motorist, to noneconomic loss, i.e., pain and suffering (see Insurance Law § 5102 [c]), plus only that economic loss which exceeds basic economic loss, defined by statute as $50,000 for medical and hospital expenses, lost wages, and incidental expenses, with certain exceptions not applicable here (see Insurance Law § 5102 [a]; see generally Matter of Adams [Government Empls. Ins. Co.], 52 AD2d 118, 120 [1976]). The plaintiff’s UIM claim, by definition, could only seek recovery only for noneconomic loss and economic loss greater than basic economic loss (see Matter of Shutter v Philips Display Components Co., 90 NY2d 703, 710 [1997]). Thus, there can be no Insurance Law § 5104 (b) lien imposed upon any amount he might recover on account of noneconomic loss in the arbitration which will determine that claim (see Matter of Adams [Government Empls. Ins. Co.], supra). Where no Insurance Law § 5104 (b) lien attaches, there can be no recovery under General Municipal Law § 207-c (6) (see Village of Suffern v Baels, supra).

“[A]n insured who has sustained personal injury should not be required to pay for his no-fault benefits out of his recovery for pain and suffering” (Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 42; see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 176 [1986]; Lang v City of New York, 98 AD2d 792, 793 [1983]; see also Dymond v Dunn, 148 AD2d 56, 59 [1989]; Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635, 636 [1981]; Matter of Adams [Government Empls. Ins. Co.], supra at 119). As it pertains to the plaintiff’s arbitration claim for noneconomic loss, the situation presented here is no different.

Moreover, the statutory lien sought to be asserted by a third party on a recovery obtained by a person injured in a motor vehicle accident, on account of the sums paid by the third party to compensate the injured person for lost wages and medical expenses (see Insurance Law § 5104 [b]), extends only to so much of the recovery as also compensated the injured person for lost wages and medical expenses (see Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 42 [1983]). Here, it is unclear whether the plaintiff, by pursuing arbitration with API, seeks to recover economic loss greater than basic economic loss, and thus, whether part of his claim is for lost wages and medical expenses greater than $50,000. In any event, while the Village has, in fact, compensated the plaintiff for lost wages and medical expenses in excess of basic economic loss, and thus asserts that the plaintiff, if successful, would unfairly recover the identical sum in arbitration, the lien created by Insurance Law § 5104 (b), by its terms, applies only to a recovery obtained by an injured person “in any action.” The recovery sought by the plaintiff from API is not pursuant to an action. The plaintiff, by seeking arbitration pursuant to the SUM endorsement contained in the policy issued by API, is not commencing an “action . . . against a non-covered person,” as required by Insurance Law § 5104 (b), but is instead seeking to enforce a contractual right he has pursuant to statute against API. Hence, the limitations on the assertion of a lien, imposed by Insurance Law § 5104, as applied to General Municipal Law § 207-c (6), preclude the result sought by the Village here.

Finally, General Municipal Law § 207-c (6) permits a municipality to seek reimbursement of wages and medical expenses only from “any third party against whom the policeman shall have a cause of action for the injury sustained . . . caused by such third party.” The plaintiff, from whom the Village seeks reimbursement, and API, upon whose obligation the Village [*4]seeks to impose a lien, are not parties who caused the injury. Hence, the cause of action created by General Municipal Law § 207-c (6) is not available to the Village insofar as it seeks to assert it against either the plaintiff or API. Furthermore, General Municipal Law § 207-c, “includes no . . . provision for an equitable lien. It ‘merely gives the [municipality] a direct remedy against the person liable to the employee in negligence’ ” (Foy v Florczuk, 51 AD2d 534, 535 [1976] quoting City of Buffalo v Maggio, 21 NY2d 1017, 1018 [1968]).

Contrary to the Village’s contention, Matter of City of Newburgh v Travis (228 AD2d 497 [1996]) does not require a contrary result. In that case, the self-insured City of Newburgh, which was required to arbitrate an employee’s underinsured motorist claim, was entitled, pursuant to a specific provision of the subject insurance policy, to offset the payments it already made against the employee’s arbitration award (see Matter of City of Newburgh v Travis, supra at 498-499). Unlike the City of Newburgh, the Village is not self-insured, and it has nothing to offset, as any arbitration award will be paid by the insurer, API. Nor does the API insurance policy contain a specific offset provision. The “non-duplication” provision in the API policy relied upon by the Village does not similarly create a right of offset (see generally Reilly v United States Fid. & Guar. Co., 139 AD2d 796, 797 [1988]).

For all of these reasons, the Village is not entitled to assert a lien pursuant to General Municipal Law § 207-c (6), and the Supreme Court therefore improperly granted the Village’s cross-motion. Rather, it should have granted the relevant branch of the plaintiff’s motion for summary judgment and the relevant branch of API’s motion for summary judgment.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the Village is not entitled to a lien, in the amount of salary and medical expenses it paid to the plaintiff pursuant to General Municipal Law § 207-c, against any award the plaintiff receives in his underinsured motorist arbitration, and that the plaintiff is not obligated to reimburse the Village for the money it paid pursuant to General Municipal Law § 207-c (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Miller, J.P., Goldstein, Spolzino 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, Queens County (Charles John Markey, J.), entered on March 3, 2005. The order, insofar as appeal from as limited by plaintiff’s brief, denied plaintiff’s motion for summary judgment seeking to recover the sum of $1,856.42.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment in the sum of $1,856.42 granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment, which, on appeal, plaintiff has limited to the sum of $1,856.42 (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In opposition, defendant argued that it properly denied the claim for $731.04 because the fees were not in accordance with the Workers’ Compensation fee schedules due to the fact that the treatment rendered constituted “concurrent care.” Defendant further argued that the remaining claims, which totaled $1,125.38, were properly denied based upon the assignor’s failure to attend independent medical examinations (IMEs).

Plaintiff was entitled to summary judgment upon the $731.04 claim as defendant failed to proffer sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact pertaining to this claim (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). With respect to the claims which totaled $1,125.38, where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in [*2]admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen
Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). While defendant timely denied claims based on the nonattendance of plaintiff’s assignor at the pre-claim IMEs, defendant failed to submit proof in admissible form of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) and defendant did not create a presumption of mailing by submission of an affidavit describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the assignor’s failure to attend the pre-claim IMEs did not raise an issue of fact warranting the denial of plaintiff’s motion for summary judgment (see Ocean Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, summary judgment is granted in favor of plaintiff in the sum of $1,856.42, 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: September 14, 2006

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 (Howard S. Miller, J.), dated September 26, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action. Plaintiff appeals from so much of the order as denied its motion for summary judgment. Plaintiff’s motion for summary judgment was properly denied because plaintiff’s submission of inconsistent affidavits from its treating physician raised a triable issue of fact (see generally Amaze Med. Supply Inc. v Eagle Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50389[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: August 22, 2006