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 (Arlene Bluth, J.), entered July 15, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, upon granting defendant’s motion for reargument of plaintiff’s summary judgment motion, which was granted in a prior order dated March 2, 2005, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover $1,791.73 in first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In March 2005, the court below granted plaintiff’s motion and denied defendant’s cross motion as moot. In July 2005, defendant moved by order to show cause for reargument of the court’s March order, which motion plaintiff opposed. By order entered July 15, 2005, the court granted reargument and, insofar as is relevant hereto, denied plaintiff’s motion for summary judgment.

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 to be considered by the court. The deficiency in plaintiff’s moving papers concerning proof of its submission of the claims to defendant was cured by the acknowledgment of receipt of the claims in the denial of claim forms annexed to plaintiff’s moving papers (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]). The burden then shifted to defendant to demonstrate a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Upon a review of the record, we find that defendant raised a triable issue of fact by showing that it timely requested verification and made the requisite follow-up requests (see 11 NYCRR 65-3.5 [b]), and, upon receiving the requested verification, timely denied the claims based on lack of medical necessity as set forth in detailed peer review reports (see A.B. Med Servs. PLLC v Travelers Prop Cas. Corp., 8 Misc 3d 139[A], 2005 NY Slip Op 51330[U] [App Term, 2d & 11th Jud Dists]; Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687 [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic and Acupuncture v Electric Ins. Co., 2 Misc 3d 135[A], 2004 NY Slip Op 50215[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., and Weston Patterson, 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 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: July 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, Kings County (Eileen Nadelson, J.), entered March 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.

Plaintiff commenced this action to recover $1,222.95 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an affirmation in opposition, defendant’s attorney argued that plaintiff failed to make out a prima facie case entitling it to summary judgment.

The deficiency in plaintiff’s moving papers concerning proof of its submission of its claim to defendant was cured by the denial of claim form, dated April 5, 2004, annexed to plaintiff’s moving papers, which states that defendant received the claim on January 30, 2004 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

While defendant acknowledged in its denial of claim form that it received the requested verification from plaintiff on March 19, 2004 and the denial of claim form is dated April 5, 2004, defendant failed to establish that it timely mailed its denial of claim form since it failed to submit an affidavit by one with personal knowledge that the denial of claim form was timely mailed or an affidavit containing a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of the timely mailing of same (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; S&M Supply Inc. v [*2]Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to raise an issue of fact regarding whether it paid or denied the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including the defense, in effect, of excessive charges (cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]). In light of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded 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 J., concur.

Golia, J., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 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, Kings County (Ellen Gesmer, J.), entered December 23, 2004. The order granted plaintiffs’ motion for summary judgment.

Order reversed without costs and plaintiffs’ motion for summary judgment denied. [*2]

In an action to recover first-party no-fault benefits for medical services rendered to its assignors, a plaintiff 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]). Although plaintiffs, in their motion papers, did not establish proof of proper mailing of the claim forms, defendant’s opposition papers, which included an affidavit of defendant’s claims examiner acknowledging the dates that defendant received the subject claim forms, as well as claim denial forms indicating the dates of receipt of the claims, adequately established that plaintiffs sent, and that defendant received, the claims (see Ultra Diagnostic Imaging d/b/a/ Kings Highway Diagnostic Imaging P.C. v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 2d & 11th Jud Dists 2005]; 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]).
Notwithstanding defendant’s contention that verification requests were timely made, which requests would operate to toll the 30-day period within which it is required to pay or deny the claim (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8), it did not establish by competent evidence that it did so (see S & M Supply v GEICO, 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]). Accordingly, having failed to pay or deny the claims within the 30-day prescribed period, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident, despite the untimely denial of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The affidavit of Dr. Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., was annexed to plaintiff’s moving papers, and specifically stated that “injuries sustained by the patient were caused by multiple motor vehicle accidents.” This statement was sufficient to support defendant’s allegations that its defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since [*3]defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: July 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 (Edgar G. Walker, J.), entered May 1, 2005. The order denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Order modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and by deleting the award of $50 costs to defendant, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment on its claim for $1,125.01, by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, its denial of claim form, indicating the date on which the claim was received, adequately established that plaintiff sent and that defendant received said claim (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant failed to establish that the denial for said $1,125.01 claim was mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually mailed. Nor did the affidavit contain a [*2]sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558; Nyack Hosp. v [*3]
Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant is precluded from raising its proffered defense of lack of medical necessity as to said $1,125.01 claim and plaintiff is entitled to summary judgment thereon.

Plaintiff’s moving papers were insufficient to raise a presumption that it submitted the claims in the amounts of $1,200.92 and $540.56. The affidavit of plaintiff’s corporate officer did not state that he actually mailed these claims, nor did he describe his office’s practice and procedure for mailing no-fault claims to insurers. The certified mail receipt does not prove that the particular claims were actually received where, as here, there is no evidence that these claims were mailed to defendant under these certified mail receipts and no signed certified mail return receipt card has been produced (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558, supra). Accordingly, plaintiff failed to shift the burden as to said claims.

Consequently, plaintiff’s motion should have been granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and the matter is remanded to the court below for the calculation of statutory interest and an [*4]
assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

In view of the foregoing, the award of $50 costs to defendant should be stricken.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 17, 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, First District (Sondra K. Pardes, J.), dated March 29, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover $676.61 in first-party no-fault benefits for medical services rendered to its assignor on the ground that payment of no-fault benefits was overdue. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order dated March 29, 2005, the court below granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

In January 2004, plaintiff provided defendant with an assignment of benefits form by submitting a “NYS form NF-AOB” in response to defendant’s timely November 2003 request for verification and December 2003 follow-up request (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). However, the statutory NF-AOB form plaintiff submitted contains a section for the signature of the provider (see 11 NYCRR 65-3.11 [b] [2] [iii]) which was left blank. Defendant objected to the incomplete form and informed plaintiff that it wanted an assignment containing the provider’s signature. Since plaintiff has yet to provide the requested verification consisting of an assignment with the provider’s signature, the statutory period in which defendant has to pay or deny the claim has been tolled (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). Consequently, defendant has established that payment of no-fault benefits was not overdue. Plaintiff’s remaining contentions regarding the validity of the NF-AOB form it sent to defendant in January 2004 are lacking in merit. [*2]

Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered June 30, 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 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]). In the instant case, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see e.g. Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Although defendant’s denial of claim form was timely mailed to plaintiff, it simply stated that the claim was denied because a peer reviewer determined that the treatment was not medically necessary. Since there is no evidence that the peer review report was sent to plaintiff within the 30-day claim determination period, and the denial of claim was otherwise devoid of any factual basis or medical rationale for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claim (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 [*2]NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claim. [*3]

Consequently, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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:

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 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered June 28, 2005. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,941.01.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment in the sum of $3,012.49, the portion of the claims for which defendant refused payment. The court awarded plaintiff partial summary judgment in the principal sum of $2,941.01.

Plaintiff established its prima facie entitlement to summary judgment as to the disputed amounts in that it proved it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of a portion of the claims 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]). Defendant does not dispute that the denial of the initial claim was untimely on its face, and contrary to defendant’s assertions below and on appeal, an untimely denial precludes the defenses set forth therein, all of which were based on the application of the fee schedules to the specific services provided (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002] [defense based on claimant’s alleged use of an incorrect billing code [*2]precluded by an untimely denial]; Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists] [defense based on “nonconformity with the Worker’s Compensation fee schedules” precluded]; S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists] [defense, “in effect, of excessive charges” precluded]). Defendant may not avoid the preclusion sanction by casting billing code issues as matters of “coverage,” whether as exceeding the compensation allowed for a given treatment or the maximum allowable compensation per diem, or that the schedules do not compensate for treatments not approved as medically “useful” for the purposes alleged. Issues of medically unnecessary or excessive treatment “[do] not ordinarily implicate a coverage matter” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and fee schedule disputes are subject to the preclusion sanction. Thus, the court properly awarded plaintiff summary judgment on the first set of claims in the amount of $1,397.06.

With regard to the remaining two sets of claims, which alleged underpayments in the amounts of $1,062.67 and $481.28, the denial forms, which were timely, set forth in detail the specific grounds for the denials of part or all of the itemized claims, and state the bases thereof with the requisite specificity to satisfy the requirements of an effective denial. However, as to the claims marked with codes EX022 and EX028 on the second set of claims, and X322 on the third set of claims, denying specific claims with the explanation that the necessity of the medical services provided was not substantiated by the documents submitted or were supported by no documentation at all, said denials are ineffective inasmuch as properly submitted proofs of claim establish the medical necessity thereof prima facie (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and if an insurer requires further documentation in relation thereto, the remedy is the verification protocols. Thus, said denials are factually insufficient, conclusory and vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]) in that they failed to set forth with the requisite particularity the factual basis and medical rationale for the denial (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and the defense is unavailing notwithstanding the timely denials.

In view of the foregoing, defendant’s denials were effective to the extent of $146.03 of the $1,062.67 balance due on the second set of claims, and $199.56 of the balance due on the third set of claims. Accordingly, plaintiff’s motion should have been granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42.

We have considered defendant’s remaining contentions and find them without merit.

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:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered March 7, 2005. The order granted defendant’s motion, inter alia, to compel discovery and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as granted defendant’s motion, inter alia, to compel discovery dismissed.

Order, insofar as reviewed, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary [*2]
judgment in the sum of $3,935.24, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining $687 claim; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After defendant moved, inter alia, to compel plaintiff to comply with defendant’s discovery demands, plaintiff cross-moved for summary judgment upon its claims for $687, $458, $1,786.18, $2,181.30, and $583.16. The denial of claim forms annexed to the parties’ motion papers indicated that defendant made partial payment to plaintiff in response to the claims which originally sought the sums of $1,786.18, $2,181.30, and $583.16. By order entered March 7, 2005, the court below denied plaintiff’s cross motion for summary judgment and granted defendant’s motion to compel discovery on default since plaintiff failed to submit written opposition to defendant’s motion to compel discovery. Accordingly, the appeal by plaintiff, the defaulting party, from so much of the order as granted defendant’s motion on default 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]). [*3]

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 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]).

Plaintiff’s cross motion for summary judgment upon its claim for $687 was properly denied because the submissions by the parties established that this claim was denied on the ground that the maximum allowable benefits therefor under the policy were already paid. As such there is an issue of fact as to whether the coverage limits applicable to the medical services rendered by plaintiff were previously exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479 [1996]).

To the extent the denial of claim forms annexed to the parties’ motion papers established that defendant failed to pay the sum of $3,935.24 upon the remaining claims, plaintiff was entitled to summary judgment for said amount since this court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense (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). In the instant case, defendant’s denial of claim forms with respect to said claims, 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 denials of claims were otherwise devoid of any factual basis for the denials, 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], supra; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claims.

Therefore, plaintiff’s cross motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $3,935.24. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on said amount pursuant to Insurance Law § 5106 and the regulations promulgated thereunder and for all further proceedings on the remaining $687 claim.

Pesce, P.J., and Rios, J., concur. [*4]

Golia, J., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

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 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered July 12, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

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

On the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Alden Banniettis, counsel for the plaintiff, pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by appearing before this court, at 141 Livingston Street, 15th Floor, in the County of Kings, on September 5, 2006, at 2:00 P.M., for a hearing at which Mr. Banniettis is directed to personally appear. The Acting Chief Clerk of the court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and the order entered hereon by regular mail.

In this action to recover first-party no-fault benefits for medical services rendered to plaintiff’s 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]). Defendant’s request for an examination under oath (EUO) did not toll the 30-day period within which defendant was required to pay or deny the claims (11 NYCRR 65-3.8 [c]) since the insurance regulations in effect prior to April 5, 2002 did not provide for EUOs as a form of verification (Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Inasmuch as [*2]defendant failed to pay or deny the claims within the 30-day prescribed period, it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). In opposition to plaintiff’s motion for summary judgment and in support of defendant’s cross motion for summary judgment, defendant’s attorney submitted the EUO transcripts of plaintiff’s assignor, a passenger in the vehicle involved in the collision, as well as that of the driver of this vehicle. These transcripts reveal that the driver of the vehicle “withdrew” his claim with prejudice when confronted at his EUO with suspicious facts concerning the five or six accidents that he and members of his family had within the past year. At the EUO of the assignor herein, which commenced immediately after the driver’s EUO, plaintiff’s assignor likewise “withdrew” her claim after consulting with the driver.

While we note that, pursuant to Insurance Regulation § 65-3.11 (d), an assignor may “not unilaterally revoke the assignment after the services” have been rendered, nevertheless, the foregoing facts were sufficient to demonstrate that defendant’s refusal to pay the claim was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50861[U] [App Term, 2d & 11th Jud Dists]). This presented an issue of fact as to whether there was a lack of coverage. Consequently, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment should have been denied.

As noted above, in support of its cross motion for summary judgment, the defendant submitted evidence of the “withdrawals” by both the host driver and the assignor of their claims in this case. Despite being advised of this development, and being provided with the background information which led to the “withdrawals,” plaintiff’s counsel submitted a reply affirmation wherein he continued to seek summary judgment in favor of his client. After having been unsuccessful in his efforts to obtain summary judgment in favor of his client, and despite being faced with facts which clearly support a founded belief of fraud, plaintiff’s counsel took an appeal from that portion of the order which denied the plaintiff’s motion and on appeal continued to contend that his client was entitled to summary judgment.

In Matter of Wecker v D’Ambrosio (6 AD3d 452, 453 [2004]), the Appellate Division, Second Department, stated the following:

“Conduct during a litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false (see 22 NYCRR 130-1.1). At the least, it must have a good faith basis (see Kamruddin v Desmond, 293 AD2d 714 [2002]; see also 22 NYCRR 130.1.1a [b]; Matter of Laing v Laing, 261 AD2d 622 [1999]; Levy v Carol Mgt. Corp., 260 AD2d 27 [1999]).”

Accordingly, counsel is directed to appear before this court for a hearing to address whether the prosecution of so much of the appeal as sought summary judgment in favor of plaintiff constituted “conduct [which] was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel …” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1[c]; see also Matter of Wecker v D’Ambrosio, 6 AD3d 452, supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: July 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an amended order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 8, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

On the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against Marylou A. Paolucci, counsel for the plaintiff, pursuant to Rules of the Chief Administrator (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by appearing before this court, at 141 Livingston Street, 15th Floor, in the County of Kings, on September 5, 2006, at 2:00 P.M., for a hearing at which Ms. Paolucci is directed to personally appear. The Acting Chief Clerk of the court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and the order entered hereon by regular mail.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the 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]). Defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]). As a result, defendant was precluded from raising [*2]most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]).

The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see also Amaze Med. Supply Inc. v AIU Ins.
Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51629[U] [App Term, 9th & 10th Jud Dists]). It set forth, inter alia, that the insured vehicle, a 1990 Toyota Camry, was involved in five accidents within seven months under two different insurance policies written by defendant. In the subject accident, the driver of the vehicle was Pedro Fernandez, the husband of the insured, Victoria Fernandez. In a subsequent accident involving the same 1990 Toyota, the driver was again Pedro Fernandez and the adverse driver was Gilberto Rivas. Thereafter, ownership of the 1990 Toyota was transferred to Gilberto Rivas and he too was involved in an automobile accident while operating this vehicle. The Fernandezes and Mr. Rivas claim not to know each other. In view of the foregoing, as well as additional facts set forth in said affidavit, an issue of fact exists as to whether there was a lack of coverage. Consequently, plaintiff’s motion for summary judgment was properly denied.

We are aware that plaintiff’s counsel, Marylou A. Paolucci, was substituted as counsel for plaintiff after plaintiff’s appellate briefs were served by outgoing counsel. Nevertheless, as noted above, despite being faced with facts which clearly support a founded belief of fraud on the part of plaintiff’s assignor, Ms. Paolucci continued in the prosecution of the appeal from so much of the order as denied plaintiff’s motion for summary judgment.

In Matter of Wecker v D’Ambrosio (6 AD3d 452, 453 [2004]), the Appellate Division, Second Department, stated the following:

“Conduct during a litigation, including on an appeal, is frivolous and subject to sanction and/or the award of costs when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false (see 22 NYCRR 130-1.1). At the least, it must have a good faith basis (see Kamruddin v Desmond, 293 AD2d 714 [2002]; see also 22 NYCRR 130.1.1a [b]; Matter of Laing v Laing, 261 AD2d 622 [1999]; Levy v Carol Mgt. Corp., 260 AD2d 27 [1999]).”

Accordingly, counsel is directed to appear before this court for a hearing to address whether the prosecution of so much of the appeal as sought summary judgment in favor of plaintiff constituted “conduct [which] was continued when its lack of [*3]
legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel …” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1[c]; see also Matter of Wecker, 6 AD3d 452, supra).

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

Rios, J., taking no part.
Decision Date: July 14, 2006