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 (Joseph Esposito, J.), entered June 17, 2005. The order denied plaintiff’s motion for summary judgment.

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

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider generally establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the [*2]
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]). A provider establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. In the instant case, the lower court properly found that plaintiff’s moving papers were insufficient to demonstrate that any of the claim forms were properly mailed. However, said deficiency was cured by defendant’s acknowledgment of receipt in its denial of 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]; 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]) and by the admissions of the claims’ receipt in the affidavits of defendant’s claims adjusters. Accordingly, plaintiff established a prima facie case, and the burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to the determination of the court below, defendant failed to establish that the denial of claim forms were timely mailed to plaintiff. The affidavits of defendant’s claims adjusters merely stated that the claims were timely denied without asserting personal knowledge of the mailing or setting forth sufficient facts to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). Accordingly, since defendant failed to demonstrate that it denied the claims within the 30-day prescribed period following their receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]), it was precluded from raising its defenses, with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; 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]).

We need not reach the issue of whether the letters which stated that payment of benefits was being delayed pending receipt of hospital/physician records were, in effect, verification requests since defendant’s acknowledged receipt of the information recommenced the running of the 30-day claim determination period. Since defendant failed to submit adequate proof of having mailed the claim denials within that period, it did not meet its burden of raising a triable issue of fact.

In view of the foregoing, the court below erred in denying plaintiff’s motion for summary judgment. Accordingly, the order is reversed, plaintiff’s motion for summary [*3]
judgment granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, 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 am constantly amazed by the continued failure of defendants to obtain and submit affidavits by someone with personal knowledge in order to establish sufficient proof of mailing of documents such as denials (NF-10), verifications, requests for independent medical examinations, etc.

Nevertheless, I wish to note that I do not agree with certain propositions of law set forth in cases cited by the majority which are inconsistent with my prior expressed positions and generally contrary to my views.

I further wish to note that I would find that the letters sent to plaintiff herein denoted as “delay letters” should serve to toll the 30-day claim determination period. They are, in fact, verification requests irrespective of terminology, indeed at the very least they are a functional equivalent of a verification request.

In support of this finding, I cite the majority opinion in the case of Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists]). Whereas I filed a concurrence in that case and did not reach the issue at hand, the case held that even if a document is labeled a verification request, it will not serve to toll the 30-day period if it merely informs that the claim is delayed pending an investigation but fails to specify the particular information sought.

The “delay letters” in the case at bar not only informed the plaintiff that payment of the claim was being delayed, but also specifically set forth the particular information sought, to wit: the hospital/physician records. Clearly these “delay letters” must serve as a verification request inasmuch as the plaintiff was well aware of what information was required to complete the claims filed. They therefore serve the same purpose. For me, this is a matter of substance over form.

I point to plaintiff’s counsel’s assertion in his moving papers that this information should have been requested from the prescribing physician and not from the plaintiff herein which does not maintain or have direct access to a medical file. Given that assertion, plaintiff has effectively acknowledged that the defendant must seek the requested information from a different source. That is exactly what the defendant herein did.

Decision Date: August 18, 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 (Joseph Esposito, J.), entered May 26, 2005. The order granted plaintiff partial summary judgment in the principal sum of $4,671.57 and denied defendant’s cross motion for summary judgment dismissing the action.

Order affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]). In the instant case, since defendant admitted that it received the five claim forms at issue, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, and in support of its cross motion for summary judgment, defendant asserted that it timely denied plaintiff’s claim which sought to recover the sum of $1,968.36 based upon a sufficiently detailed affirmed peer review annexed to defendant’s denial of claim form. The affidavit submitted by defendant’s no-fault specialist was sufficient to [*2]establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). As a result, both plaintiff’s motion and defendant’s cross motion for summary judgment upon this claim were properly denied.

However, defendant’s assertion that the plaintiff’s motion for summary judgment upon its claims for $390.85, $2,290, $205.77, and $1,784.95 should have also been
denied lacks merit. The affidavit executed by defendant’s no-fault specialist was insufficient to prove actual mailing of the verification requests or to create a presumption of mailing (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). In light of defendant’s failure to establish the mailing of its verification requests, defendant did not establish that the 30-day claim determination period was tolled. As a result, defendant was precluded from raising most defenses to the claims for $1,784.95, $205.77, $2,290 and $390.85, with exceptions not relevant herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; 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]). Consequently, the court properly granted plaintiff partial summary judgment upon these claims.

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

Golia, J., concurs in a separate memorandum. [*3]

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.

I note that if defendant’s claim manager had expanded his affidavit by stating that requests for verifications follow the same mailing procedures as denial of claim forms, then it would have been sufficient, at least to me, to establish a timely mailing of the verification demands.
Decision Date: August 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 (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians to the extent of directing all parties to appear for examinations before trial.

Appeal from so much of the order as directed all parties to appear for examinations before trial dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment and defendant cross-moved to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of directing all parties to appear for examinations before trial. Plaintiff failed to submit written opposition to defendant’s cross motion, but instead argued in its reply papers that it was entitled to summary judgment without addressing defendant’s argument that it was entitled to examinations before trial. Since so much of the order as granted [*2]defendant’s cross motion to the extent of directing all parties to appear for examinations before trial was entered on default, the appeal therefrom by plaintiff, a defaulting party, must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]).

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was 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 and the post office ledger annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Moreover, plaintiff’s attorney’s affirmation was based on allegations by a person without personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the denial of claim form annexed to plaintiff’s moving papers was insufficient to establish that plaintiff sent, and that defendant received, the claim since the denial of claim form indicated that defendant received a claim for the sum of $1,922 from plaintiff and the bill annexed to plaintiff’s moving papers was for the sum of $1,804.50 (cf. 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]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment. Accordingly, the lower court properly denied plaintiff’s motion for summary judgment.

Pesce, P.J., 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: August 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 (Sandra K. Pardes, J.), entered March 22, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment,
which motion defendant opposed. By order entered April 4, 2005, the court below denied plaintiff’s motion on the ground that it failed to establish its prima facie entitlement to judgment, and awarded defendant $50 in costs. The instant appeal by plaintiff ensued.

Contrary to the determination of the court below, the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms, mailing receipts, denials (indicating that defendant received the claims) and other documents to be considered by the court. Consequently, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App [*2]Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC 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 burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims examiner established that the denials were timely mailed to plaintiff pursuant to defendant’s “routine office practice and procedures.” In addition, the affirmed peer review reports defendant annexed to its opposition papers present factual bases and medical rationales for the peer reviewers’ opinions and, therefore, raise triable issues of fact as to medical necessity (see e.g. A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs pursuant to UDCA 1906 (a).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 26, 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 (Jack M. Battaglia, J.), entered July 6, 2005. The order granted defendant’s motion to dismiss the complaint to the extent of directing plaintiff to, inter alia, produce responses to defendant’s discovery demands, and denied plaintiff’s cross motion for summary judgment with leave to renew after completion of discovery.

Appeal from so much of the order as granted defendant’s motion to dismiss the complaint to the extent of directing plaintiff to, inter alia, provide responses to defendant’s discovery demands dismissed.

Order, insofar as reviewed, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Defendant moved to dismiss plaintiff’s complaint for plaintiff’s failure to comply with defendant’s discovery demands and plaintiff cross-moved for summary judgment. By order entered July 6, 2005, the court below granted defendant’s motion to the extent of ordering plaintiff to, inter alia, produce responses to defendant’s discovery demands and also denied plaintiff’s cross motion for summary judgment with leave to renew after completion of discovery. Plaintiff failed to submit written opposition to defendant’s motion, but [*2]instead cross-moved for summary judgment without addressing defendant’s argument that it was entitled to discovery. Since so much of the order as granted defendant’s motion to the extent of directing plaintiff to, inter alia, provide responses to defendant’s discovery requests was entered on default, the appeal therefrom by plaintiff, a defaulting party, must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]).

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was 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 and the proof annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant since “there is no evidence that th[e] claim[s] w[ere] mailed to [defendant] under that certified mail receipt number” (New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the denial of claim form annexed to plaintiff’s moving papers was insufficient to establish that plaintiff sent, and that defendant received, the claims since items 23-32 on said denial of claim form, including the date on which defendant received the claims, were not filled out by defendant (cf. 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]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment. Accordingly, the lower court properly denied plaintiff’s cross motion for summary judgment.

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

Golia, J., concurs in a separate memorandum.

[*3]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 disagree 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: July 26, 2006

[*1]

Supreme Court, Appellate Term, Second Department, July 26, 2006

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (David S. Rubackin of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn, for respondent.

{**13 Misc 3d at 59} OPINION OF THE COURT

Memorandum.

Order reversed, without costs, plaintiff’s motion for summary judgment denied and defendant’s cross motion to dismiss the complaint granted to the extent of directing that plaintiff shall respond to those discovery demands which seek information regarding whether plaintiff was fraudulently incorporated, within 30 days of the date of the order entered hereon or within such other reasonable time period as the parties stipulate to in writing.

In this action to recover $1,107.51 in first-party no-fault benefits for health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted 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 2003]). Defendant failed to deny the claims within the 30-day claim determination period and failed to establish that it tolled the statutory time period by mailing verification and follow-up requests to plaintiff (see e.g. Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644[U] [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Nevertheless, the defense that plaintiff, a provider of health care services, is not eligible for reimbursement of no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) is not subject to preclusion (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, summary judgment should be denied where{**13 Misc 3d at 60} the opposition papers set forth that facts essential to justify opposition may exist but cannot then be stated (see CPLR 3212 [f]).

In Mallela (4 NY3d 313 [2005], supra), the Court of Appeals found that insurers may withhold payment of first-party no-fault benefits provided by fraudulently licensed medical service corporations to which patients have assigned their claims. Consequently, we find that discovery requests seeking information to determine whether the owners of a medical service corporation are improperly licensed are germane to the question of whether said corporation is eligible for reimbursement. Pursuant to 11 NYCRR 65-3.16 (a) (12),

“A provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service[s] in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

The Education Law provides that only persons licensed or certified can practice acupuncture in the State of New York (see Education Law § 8212). The Business Corporation Law provides that each shareholder, director or officer of the corporation must be licensed to practice the profession for which the corporation was organized (see Business Corporation Law § 1503 [b]; § 1507).

We find that defendant’s papers establish that so much of defendant’s discovery requests as seek information regarding whether plaintiff was fraudulently incorporated are material and necessary (see CPLR 3101) and, thus, defendant’s papers set forth that facts essential to justify opposition may exist but cannot now be stated. Consequently, plaintiff’s motion for summary judgment is premature pending the completion of discovery (see CPLR 3212 [f]). It is noted that plaintiff did not oppose the cross motion in the court below. Accordingly, plaintiff’s motion for summary judgment is denied and defendant’s cross motion is granted to the extent of directing that plaintiff shall respond to defendant’s discovery demands which seek information regarding the ownership, control and licensing of plaintiff corporation within 30 days of the date of the order entered hereon.{**13 Misc 3d at 61}

Golia, J.P. (concurring with the result only). 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.

Rios and Belen, JJ., concur; Golia, J.P., concurs in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, July 26, 2006

Metroscan Imaging, P.C. v GEICO Ins. Co., 8 Misc 3d 829, affirmed.

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, LLP, Mineola (David M. Barshay and Michael C. Rosenberger of counsel), for appellant. Cadwalader, Wickersham & Taft LLP, New York City (William J. Natbony of counsel), and Stern & Montana LLP, New York City (Robert Stern of counsel), for respondent.

{**13 Misc 3d at 36} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, affirmed without costs.

This appeal raises the question of whether, as a result of the Court of Appeals decision in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), a medical corporation that was fraudulently incorporated under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c) is entitled to be reimbursed by insurers for medical services rendered by licensed medical practitioners prior to the effective date of 11 NYCRR 65-3.16 (a) (12).^[FN*] In [*2]Mallela, the New York Court of Appeals was asked the following certified question by the United States Court of Appeals, Second Circuit:

“Is a medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508 and N.Y. Education Law § 6507(4)(c) entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq. and its implementing regulations, for medical services rendered by licensed medical practitioners” (State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 509 [2004]).

The New York Court of Appeals stated that such medical corporations were not entitled to reimbursement (see 4 NY3d at 320). In addition to certifying the preceding question to the New York Court of Appeals, the Second Circuit stated that “defendants raise another issue of New York law that would arise only if the initial question is answered as State Farm wishes. This is: would the applicable revised regulation, 11 N.Y.C.R.R. § 65-3.16(a)(12), if it is read to bar reimbursement, be given retroactive effect” (372 F3d at 508). Consequently, the Second Circuit “welcome[d]” the Court of Appeals’ “guidance with respect to any issues that could arise depending on its answer to the question certified” (id. at 509-510). In Mallela, the Court of Appeals did not explicitly state whether 11 NYCRR 65-3.16 (a) (12) was to be given retroactive effect so as to bar{**13 Misc 3d at 37} reimbursement to a medical corporation that was fraudulently incorporated under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c). Rather, the only portion of the Court of Appeals decision which expressly dealt with the retroactivity of the regulation concerned an insurer’s ability to maintain a cause of action sounding in fraud or unjust enrichment to recoup payments made by the insurer to a fraudulently incorporated medical corporation prior to the effective date of the regulation. On this question, the Court of Appeals indicated that the regulation was not to be applied retroactively, but rather prospectively (4 NY3d at 322).

The court below concluded that because the claims at issue in Mallela arose prior to the effective date of 11 NYCRR 65-3.16 (a) (12), the Court of Appeals held that the regulation applied to unpaid claims for medical services rendered without regard to the date on which such services were rendered (8 Misc 3d 829 [2005]). Although the court below was not alone in reaching this conclusion (see Allstate Ins. Co. v Belt Parkway Imaging, P.C., 11 Misc 3d 810 [2006]; A.T. Med., P.C. v State Farm Mut. Ins. Co., 10 Misc 3d 568 [2005]; Multiquest, PLLC v Allstate Ins. Co., 9 Misc 3d 1031 [2005]), other trial courts have reached a contrary determination (see Multiquest, PLLC v Allstate Ins. Co., 10 Misc 3d 1069[A], 2005 NY Slip Op 52209[U] [2005]; Multiquest, PLLC v Allstate Ins. Co., 10 Misc 3d 1061[A], 2005 NY Slip Op 52071[U] [2005]; Multiquest, PLLC v Allstate Ins. Co., 10 Misc 3d 1061[A], 2005 NY Slip Op 52069[U] [2005]; Multiquest, PLLC v Allstate Ins. Co., 10 Misc 3d 877 [2005]). While the Court of Appeals did not expressly address whether 11 NYCRR 65-3.16 (a) (12) was applicable to unpaid claims for assigned first-party no-fault benefits arising from medical services [*3]which were rendered prior to the effective date of said regulation, we nevertheless read the Court of Appeals decision as holding that, irrespective of the date on which the medical services were rendered, a provider of medical services may not recover therefor if it is a fraudulently incorporated medical corporation.

In Mallela, the medical corporation defendants which were allegedly fraudulently incorporated in violation of Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c) asserted that they were entitled to reimbursement notwithstanding their alleged fraudulent incorporation because the medical care rendered to their assignors was within the scope of the licenses of those who treated the assignors and{**13 Misc 3d at 38} thus the medical corporation defendants were within the regulatory framework for reimbursement. In advancing such an argument, some of the defendants’ separate briefs to the Court of Appeals relied, in part, upon the Court of Appeals decision in Charlebois v Weller Assoc. (72 NY2d 587 [1988]).

In Charlebois, the Court of Appeals held that a contract which required payment to an unlicensed business corporation for engineering services performed by an independent licensed professional engineer was valid because the corporation was not engaged in the unauthorized practice of engineering. By contrast, in Mallela, although the medical treatments were rendered by apparently licensed medical practitioners, said licensed practitioners were not the “providers” for billing purposes under the No-Fault Law. Instead, the “providers” for no-fault billing purposes were their employers, medical service corporations, which were incorporated in violation of Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c). This critical distinction apparently prompted the Court of Appeals, in Mallela, to reject the defendants’ position stating, “The fact remains that the reimbursement goes to the medical service corporation that exists to receive payment only because of its willfully and materially false filings with state regulators” (4 NY3d at 321).

In so holding, the Court of Appeals implicitly recognized that medical service corporations which are fraudulently incorporated in violation of Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c), i.e., which “fail[ed] to meet the applicable state licensing requirements” (4 NY3d at 320), were not entitled to reimbursement since their authority to render professional services was obtained through fraudulent means and possession of such authority was a prerequisite to reimbursement (see Education Law § 6507 [4] [c]; see also Business Corporation Law § 1503; Valley Physical Medicine & Rehabilitation v New York Cent. Mut. Ins. Co., 193 Misc 2d 675 [App Term, 9th & 10th Jud Dists 2002]). Such a result is in accord with the common law, which has historically denied compensation to unlicensed providers of services for which a regulatory license is required (see Spivak v Sachs, 16 NY2d 163 [1965]; Bendell v De Dominicis, 251 NY 305 [1929]; Mavco Realty Corp. v M. Slayton Real Estate, Inc., 12 AD3d 575 [2004]; Price v Close, 302 AD2d 374 [2003]; Gordon v Adenbaum, 171 AD2d 841 [1991]; P.C. Chipouras & Assoc. v 212 Realty Corp., 156 AD2d 549{**13 Misc 3d at 39} [1989]; Unger v Travel Arrangements, 25 AD2d 40, 44 [1966]; 13 NY Jur 2d, Businesses and Occupations § 61), and the regulations, which permit a medical service corporation to recover for medical services provided so long as the treating medical practitioner was an employee of the medical service corporation as opposed to an independent contractor (see 11 NYCRR former 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005] [because a billing [*4]provider is not a “provider” of the medical services if the medical services were rendered by an independent contractor rather than by an employee of the billing provider, it is not permitted to recover direct payment of assigned no-fault benefits from an insurer]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). Indeed, where an action is based upon a contract which violates public policy or which is being used to circumvent public policy, courts have refused to enforce such a contract and have left the parties where they stand (see Spivak v Sachs, 16 NY2d at 168; McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]; Veazey v Allen, 173 NY 359 [1903]; Matter of Ungar v Matarazzo Blumberg & Assoc., 260 AD2d 485 [1999]; LoMagno v Koh, 246 AD2d 579 [1998]; United Calendar Mfg. Corp. v Huang, 94 AD2d 176 [1983]). Accordingly, under the common law, prior to the effective date of 11 NYCRR 65-3.16 (a) (12), such fraudulently incorporated medical corporations were not entitled to recover a judgment against an insurer for assigned first-party no-fault benefits. The promulgation of 11 NYCRR 65-3.16 (a) (12) by the Superintendent of Insurance merely codified the common-law rule to the extent it barred recovery by unincorporated or fraudulently incorporated medical service corporation providers for assigned first-party no-fault benefits.

Our reading of Mallela is buttressed by the Court of Appeals holding therein that a cause of action by an insurance carrier sounding in fraud or unjust enrichment would not lie prior to the effective date of 11 NYCRR 65-3.16 (a) (12). This too comports with the common-law rule, to wit, the lack of a required license will prevent recovery for services rendered, but the lack of a license does not permit recovery of the fee by the payer after it was paid (see Johnston v Dahlgren, 166 NY 354 [1901]; Goldman v Garofalo, 71 AD2d 650 [1979]; see also 13{**13 Misc 3d at 40} NY Jur 2d, Businesses and Occupations § 68). However, we read Mallela as holding that the promulgation of 11 NYCRR 65-3.16 (a) (12) by the Superintendent of Insurance altered the common law prospectively such that an insurance carrier may maintain a cause of action against a fraudulently incorporated medical service corporation to recover assigned first-party no-fault benefits which were paid by the insurer to such medical service corporation after the regulation’s effective date (4 NY3d at 322). [*5]

In light of the foregoing, the order, insofar as appealed from, is affirmed.

Golia, J.P., Rios and Belen, JJ., concur.

Footnotes

Footnote *: Insofar as is relevant, the regulation provides: “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]).

[*1]

Supreme Court, Appellate Term, Second Department, July 26, 2006

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Carman Callahan & Ingham, LLP, Farmingdale (Paul A. Barrett of counsel), for respondent.

{**13 Misc 3d at 26} OPINION OF THE COURT

Memorandum.

Appeal as taken by plaintiff Lvov Acupuncture P.C. dismissed.

Order modified by granting so much of the motion as sought summary judgment on behalf of plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. to the extent of awarding partial summary judgment to plaintiff D.A.V. Chiropractic P.C. in the principal sum of $370.70 and awarding summary judgment to plaintiff A.B. Medical Services PLLC in the principal sum of $8,682.82, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims; as so modified, affirmed insofar as reviewed without costs.

In this action to recover first-party no-fault benefits for health services rendered to their [*2]assignor, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established their prima facie entitlement to summary judgment by proof that they submitted 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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 burden shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the determination of the court below, plaintiffs did not have to establish the validity of the assignments as part of their prima facie case. Defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian{**13 Misc 3d at 27} Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Medwide Med. Supply Inc. v Country-Wide Ins. Co., 8 Misc 3d 131[A], 2005 NY Slip Op 51078[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that defendant timely denied plaintiff A.B. Medical Services PLLC’s $604.24 claim based upon the conclusions of an affirmed peer review report which was annexed to the denial. Plaintiff contends that the report is insufficient since defendant did not provide its reviewer with the narrative report and the follow-up reports it had previously provided to defendant. Indeed, the reviewer stated that he was not provided with reports from any of the assignor’s health care providers and, therefore, medical necessity could not be established. In view of the foregoing, since the peer review report was incomplete in that it did not take into account all of the documents plaintiff provided to defendant, the denial was inadequate to establish a factual basis and medical rationale sufficient to demonstrate the lack of medical necessity (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]).

Defendant also timely denied plaintiff A.B. Medical Services PLLC’s $1,999.12, $71.40 and $752.62 claims, by its denial of claim form dated April 30, 2003, on the ground that the assignor failed to appear for independent medical examinations (IMEs). However, in opposition to plaintiffs’ motion for summary judgment, defendant merely established the mailing of a single IME request. The insurance regulations provide that if any verification request is not supplied to the insurer within 30 calendar days after the original request, then, within 10 calendar days, the insurer shall follow up with the party from whom the verification was sought (see 11 NYCRR 65-3.6 [b]). Inasmuch as defendant did not show that it complied with the follow-up verification regulation, it has failed to rebut plaintiff’s prima facie showing as to these claims (see e.g. Metro Med. Diagnostics v Lumbermens Ins. Co., 189 Misc 2d 597 [App Term, 2d & 11th Jud Dists 2001]).

As to plaintiff A.B. Medical Services PLLC’s remaining claims, defendant failed to show a triable issue of fact since its denial of claim form dated June 10, 2003 is incompletely filled out and is, thus, insufficient to assert a defense.

“A proper denial of claim must include the information called for in the prescribed denial of claim form{**13 Misc 3d at 28} (see 11 NYCRR 65-3.4 [c] [11]) [*3]and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ . . . Moreover, ‘[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law’ (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004])” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2004]).

Furthermore, although plaintiff D.A.V. Chiropractic P.C. contends that it is entitled to summary judgment in the principal sum of $1,586.44, a review of the claim forms annexed to its moving papers as exhibit E indicates that said plaintiff is only entitled to $370.70 since the mailing receipts annexed to establish its mailing of its other three claims list the provider as A.B. Medical Services PLLC. Accordingly, upon the record presented, there has been an insufficient showing that D.A.V. Chiropractic P.C. mailed said three claims to defendant. As noted above, defendant’s June 2003 denial of claim form is insufficient and, therefore, does not raise a triable issue of fact or rebut plaintiff’s prima facie showing as to its $370.70 claim (see Nyack Hosp., 11 AD3d at 664).

In view of the foregoing, plaintiff A.B. Medical Services PLLC is awarded summary judgment in the principal sum of $8,682.82 and plaintiff D.A.V. Chiropractic P.C. is awarded partial summary judgment in the principal sum of $370.70, and the matter is remanded to the court below for entry of judgment and the calculation of statutory interest and attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Inasmuch as Lvov Acupuncture P.C. is not an aggrieved party, the appeal as taken by it is dismissed (see CPLR 5511).

Golia, J., dissents in part and concurs in part, and votes to affirm the order in the following memorandum:

At the outset, I concur with the majority in the dismissal of the appeal as taken by plaintiff Lvov Acupuncture P.C. As regards the claim of A.B. Medical Services PLLC and D.A.V. Chiropractic P.C., I find that plaintiffs are required, at the very least, to submit proof of a properly executed assignment. Here, plaintiffs A.B. Medical and D.A.V. Chiropractic failed to do so. Consequently, I respectfully dissent and vote to affirm.{**13 Misc 3d at 29}

The insurance regulations provide, in relevant part, that a health care provider must submit to the insurer “a properly executed assignment” on one of the following forms: (1) the prescribed verification of treatment by the attending physician or other provider of service form (NYS Form NF-3); (2) the prescribed verification of hospital treatment form (NYS Form NF-4), or the prescribed hospital facility form (NYS Form NF-5); or (3) the prescribed no-fault assignment of benefits form (NYS Form NF-AOB) (see 11 NYCRR 65-3.11 [b] [2]; see also A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70, 71 [App Term, 2d & 11th Jud Dists 2004]). The plain language of the regulations clearly mandate submission of a properly executed assignment, and since the No-Fault Law is in derogation of the common law, its regulations must be strictly construed (see Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211 [1994]).

In my view, the submissions of A.B. Medical and D.A.V. Chiropractic fail, on their face, to demonstrate a properly executed assignment. As the court below correctly noted, the forms submitted by these plaintiffs appear to be copies of a single assignment form which was signed by the assignor in blank. Plaintiffs’ names were inserted thereafter on copies of the original form. Under these circumstances, it cannot [*4]be said that plaintiffs A.B. Medical and D.A.V. Chiropractic presented evidence of a properly executed assignment as required under the insurance regulations. Accordingly, plaintiffs’ motion for summary judgment was properly denied.

Pesce, P.J., and Weston Patterson, J., concur. Golia, J., dissents in part and concurs in part in a separate memorandum.

—[*1]

In an action to recover no-fault benefits, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated October 3, 2005, as, upon renewal, adhered to so much of a prior determination in an order of the same court dated July 15, 2004, as denied that branch of their motion which was made on behalf of the plaintiff Montefiore Medical Center for summary judgment on the first cause of action, asserted on behalf of the plaintiff Montefiore Medical Center, and granted the defendant’s cross motion dismissing that cause of action.

Ordered that the appeal by the plaintiffs Hospital for Joint Diseases and Mary Immaculate Hospital is dismissed, without costs or disbursements, as they are not aggrieved by the order; and it is further,

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

The Supreme Court correctly determined that the defendant, Liberty Mutual Insurance Company, established a meritorious defense to the first cause of action. The defendant established that it had cancelled the policy of insurance covering the subject vehicle before the date of the accident. It is well settled that no notice of disclaimer is required where the policy does not provide coverage for the claim, nor do principles of waiver or estoppel preclude the insurer from denying coverage in this case (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]; Commissioners of State Ins. Fund v Aetna Cas. & Sur. Co., 283 AD2d 335 [2001]). [*2]

Contrary to the contention of the plaintiff Montefiore Medical Center, the affidavit of the defendant’s claims representative based on records maintained by the insurer in the ordinary course of business was sufficient to establish the defense (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). Similarly, the documents submitted on the cross motion demonstrate that the insurer effectively canceled the policy (see Hughson v National Grange Mut. Ins. Co., 110 AD2d 1072 [1985]). Schmidt, J.P., Adams, Luciano and Lifson, 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 (Robin S. Garson, J.), entered May 12, 2005. The order, insofar as appealed from, granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment upon its claim for $1,546.20 and denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, modified by providing that, upon searching the record, plaintiff’s motion for summary judgment is granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of any of the appended claim forms to defendant, the deficiency in plaintiff’s moving papers concerning proof of its submission of the claims was cured by defendant’s NF-10 denial of claim forms which adequately established that plaintiff sent, and that defendant received, said claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). [*2]

Although defendant’s submissions were sufficient to establish that defendant mailed, within the 30-day claim determination period, its NF-10 forms (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App Term, 2d & 11th Jud Dists]; cf. Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]), plaintiff was nevertheless entitled to summary judgment upon said claims. Defendant’s denial of claim forms and the accompanying explanation of benefit forms merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denial of claims were otherwise devoid of any factual basis for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). As a result, upon searching the record, we find that plaintiff is entitled to summary judgment on both of its claims and grant plaintiff’s motion for summary judgment in its entirety. The matter is remanded to the[*3]court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., concurs in a separate memorandum. [*4]

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.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 19, 2006