SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the District Court of Nassau County, First District (Norman Janowitz, J.), entered December 23, 2004. The order denied plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order insofar as appealed from by plaintiff unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $2,983 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees. [*2]

Cross appeal by defendant unanimously dismissed.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted completed proofs of claims, setting forth the fact and the amount of the loss sustained, and that payments of no-fault benefits were overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI In Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The timely denials containing the unaffirmed but factually specific peer review report constituted a sufficient assertion of a defense of lack of medical necessity. However, in opposition to a motion for summary judgment defendant was required to submit proof in admissible form to rebut plaintiff’s prima facie showing. Since the report [*3]
was not in admissible form, plaintiff’s motion should have been granted (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]).

We note that, in accordance with the brief submitted by defendant, its cross appeal is dismissed.
Decision Date: December 12, 2005

—[*1]

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 20, 2004, as denied that branch of their motion which was for summary judgment on the first cause of action, and the defendant cross-appeals from so much of the same order as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the order is reversed insofar as cross-appealed from, on the law, the cross motion is granted, and the complaint is dismissed; and it is further,

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

The Supreme Court improperly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action to recover payments for medical services provided by Central Suffolk Hospital. “An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15 [g] [1] [i]; [2] [iii])” (St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, [*2]340 [2002]). Here, in the proof offered in response to the defendant’s prima facie showing of entitlement to summary judgment, the plaintiff Central Suffolk Hospital, as assignee of Renard Legette, admitted receiving the defendant’s initial request for verification of the claim, yet failed to state what response, if any, was made. Pursuant to 11 NYCRR 65-3.8 (a) (1) and (b) (3), on the undisputed facts presented, the defendant was entitled to summary judgment dismissing the plaintiffs’ first cause of action (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

The Supreme Court also improperly denied the branch of the defendant’s cross motion which was for summary judgment dismissing the second cause of action to recover for medical services provided by White Plains Hospital Center (hereinafter White Plains). As noted by the Supreme Court, the principal amount of the claim, $733.91, has been paid, leaving only the portion of the second cause of action seeking interest and an award of an attorney’s fee. Although White Plains maintained before the Supreme Court that it did not receive either of the requests for verification which the defendant asserted were sent by mail on May 21, 2003, and June 23, 2003, White Plains provided the verification of claim to the defendant on July 14, 2003. In view of this circumstance, the assertion that the claim underlying the second cause of action was not paid in a timely way, which is the predicate for the plaintiffs’ claim for interest and an award of an attorney’s fee, is without basis under 11 NYCRR 65-3.8. Adams, J.P., Krausman, Rivera and Lifson, JJ., concur.

—[*1]

In an action, inter alia, for a judgment declaring that 11 NYCRR 65-4.5 (o) (1) violates procedural due process and is unconstitutional as applied to the plaintiffs, the plaintiffs appeal from an order of the Supreme Court, Kings County (G. Aronin, J.), dated July 30, 2004, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that 11 NYCRR 65-4.5 (o) (1) does not violate procedural due process.

The plaintiffs contend that 11 NYCRR 65-4.5 (o) (1) violates the Due Process Clause of the United States and New York State Constitutions because the regulation, when used in conjunction with 11 NYCRR 65-4.2 (b) (3) (i), allows an arbitrator in a proceeding pursuant to Insurance Law § 5106 to independently raise any issue that the arbitrator deems relevant to making an award, without affording the applicant a meaningful opportunity to respond. In addition to their claim that the regulation violates procedural due process, the plaintiffs contend that it is unconstitutional as applied to them.

The Supreme Court properly dismissed the plaintiffs’ unconstitutional-as-applied claim on the ground that they failed to exhaust their administrative remedies (see Matter of Beyah v Scully, 143 AD2d 903, 904 [1988]). [*2]

Contrary to the plaintiffs’ contention, the challenged regulation comports with procedural due process (see Mathews v Eldridge, 424 US 319 [1976]). There is a strong government interest in according the arbitrator discretion in order to promptly resolve claims and free the courts for more important tasks (see Governor’s Mem approving L 1973, ch 13, 1973 NY Legis Ann, at 298), and the regulations promulgated by the Superintendent of Insurance are adequate to mitigate the risk of an erroneous denial of an applicant’s claim since they allow for administrative and judicial review of an arbitrator’s determination (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413 [2000]; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290 [2000]). Consequently, the Supreme Court properly dismissed the plaintiffs’ procedural due process claim (see Matter of Vector E. Realty Corp. v Abrams, 89 AD2d 453, 457 [1982]; Matter of K.L., 302 AD2d 388, 391, affd 1 NY3d 362 [2004]).

However, since this is an action, inter alia, for a declaratory judgment, the Supreme Court should have made a declaration as to the constitutionality of 11 NYCRR 65-4.5 (o) (1) (see Lanza v Wagner, 11 NY2d 317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]; Goldberg v Corcoran, 153 AD2d 113, 118 [1989]). Accordingly, the matter is remitted to the Supreme Court, Kings County, for entry of a judgment declaring that 11 NYCRR 65-4.5 (o) (1) does not violate procedural due process.

The plaintiffs’ remaining contentions are without merit. Cozier, J.P., Krausman, Skelos and Lunn, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied a motion for partial summary judgment by plaintiff A.B. Medical Services PLLC in the sum of $4,410.22.

Order reversed without costs, motion by plaintiff A.B. Medical Services PLLC for partial summary judgment in the sum of $4,410.22 granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due thereon, and for all further proceedings on its remaining claims.

Appeal by plaintiffs Lvov Acupuncture P.C. and Somun Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff A.B. Medical Services PLLC (A.B. Medical) established a prima facie entitlement to partial summary judgment in the sum of $4,410.22 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

It is uncontroverted on the record that defendant did not timely pay or deny A.B. [*2]Medical’s claim for $439.04, which said plaintiff has limited to $439.02, within the 30-day statutory period (11 NYCRR 65-3.8 [c]). Accordingly, defendant is precluded, with certain exceptions not relevant here, from raising most defenses with regard to said claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The record furthermore does not contain a denial of claim for plaintiff’s claim in the sum of $1,972.08, which plaintiff established was submitted to defendant on August 16, 2002. Even assuming that defendant’s denial of claim form dated August 30, 2002, may be deemed to constitute a timely denial of plaintiff’s claim for $1,972.08, on the stated ground that plaintiff’s assignor failed to appear for IMEs, the form is fatally defective since it omitted numerous items of requested information, and thus was incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Moreover, in opposition to plaintiff’s motion, defendant has failed to proffer competent proof in admissible form that it mailed the requests scheduling the IMEs and has otherwise failed to address this defense. Accordingly, defendant has failed to raise triable issues of fact warranting denial of plaintiff’s motion with respect to this claim.

While defendant apparently timely denied plaintiff’s claim for $1,999.12, a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory or vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564, supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra). The claim for $1,999.12 was in effect denied for failure to establish medical necessity. Although defendant was not required to attach to its denial of claim form the peer review upon which the denial was purportedly based (see 11 NYCRR 65-3.8 [b] [4]; see also 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]), the defendant’s denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity, and it is therefore precluded from asserting said defense (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra) . Accordingly, even though the peer review submitted by defendant in opposition to plaintiff’s motion constituted proof in admissible form and set forth a sufficient factual basis and medical rationale for denial of the claim, said report cannot remedy the factual insufficiency of defendant’s denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra).

We note that the lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, 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 id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the motion for partial summary judgment by plaintiff A.B. Medical Services PLLC is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) [*3]and the regulations promulgated thereunder, and for all further proceedings on its remaining claims.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them are dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Rios and Belen, JJ., concur.

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

Golia, J.P. dissents and votes to hold the matter in abeyance while remanding it to the court below for a hearing.

A review of the papers submitted on appeal as well as the trial court’s file reveals a disturbing fact that requires further investigation before I can issue a decision on the merits.

It appears, from the documents that were submitted to the trial court, that either the plaintiffs or the defendant have submitted, what appears to be an altered copy of the NF-10 “Denial of Claim” form. The NF-10 form was originally submitted by the defendant as a formal denial to the underlying claim for payment.

The first page of the NF-10 form submitted by both the defendant and the plaintiffs appears to be identical. However, the second page of each document is significantly different from each other.

The copy of the second page of the NF-10 form submitted by the plaintiffs lists the Applicant for Benefits as “AB Medical Office,” whereas the first page identifies the provider as “AB Medical Services.” The first and second pages of defendant’s document shows the provider as “AB Medical Services.” AB Medical Office is not mentioned anywhere in defendant’s NF-10 form.

Additionally, the explanation as to why the claim was denied on each form differs materially. The plaintiffs’ submission contains the following statement:

“BASED ON THE ABOVE MEDICAL DOCUMENTS THAT I HAVE REVIEWED, I DO NOT RECOMMEND REIMBURSEMENT FOR EMG, NERVE CONDUCTION STUDIES, F-WAVES AND H-REFLEXES BILLED ON JULY 2, 2002 BY A.B. MEDICAL SERVICES, PLLC IN THE AMOUNT OF $1999.12 AS MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

“BASED ON PEER REVIEW BY DR. JOSEPH GREGORACE DO – MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

In addition, the plaintiffs also submitted certain documents as exhibits as proof of mailing. Although those documents appear to be official U.S. Postal forms, they certainly do not contain information relating to postal documents. For example, the document contains a “check mark” on the box that indicates that the items were sent by “Registered” mail, yet the numbers entered under the column entitled “Article Number” have no relation to generated numbers by the Post Office. Further, there was no registered mail receipt attached. Indeed, those numbers appear to be the claim numbers which were assigned by the insurance carrier. I further note that one of the documents contains a list of thirteen items and a stamp indicating a charge of $3.90 [*4]whereas a similar document also contains a list of thirteen items with a stamp indicating a charge of $4.50 without explanation of the difference in charges.

In light of the above discrepancies, I cannot render an opinion as to the merits of
the within matter. Unlike the majority, I do not choose to ignore the maxim of “falsus in uno, falsus in omnibus” (Deering v Metcalf 74 NY 501, 503 [1878]).

Although the majority – unjustifiably, in my view – chooses to ignore these discrepancies, I cannot. It is my opinion that this matter should be remanded to the court below to determine, on the record, the reliability and the trustworthiness of the documents presented by each party.
Decision Date: November 21, 2005

—[*1]

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated March 30, 2005, which denied its motion for summary judgment on its claim for statutory interest and an award of an attorney’s fee, and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The plaintiff, Nyack Hospital (hereinafter the hospital), as assignee of Stacey Gersten, made a prima facie showing of entitlement to judgment as a matter of law on its claim for statutory interest and an attorney’s fee, by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue when made (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005], lv denied 5 NY3d 713 [2005]).

The defendant, Encompass Insurance Company (hereinafter the insurance company), waived any defense based on the lack of a valid assignment by the claimant to the hospital, by failing to timely object to the completeness of the forms or seek verification of the assignment (see Hospital [*2]for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]). Moreover, the two letters from the insurance company to the hospital, dated May 28, 2004, and June 23, 2004, respectively, stating that the claimant’s hospital records had been received but that payment was delayed pending completion of the insurance company’s investigation, did not toll the 30-day statutory period for paying or denying the claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314 [U] [2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [2004]).

We reject the insurance company’s argument that it was entitled to delay payment while awaiting a no-fault application to be submitted, as 11 NYCRR 65.15 (d) (6) specifically states that “[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) . . . submitted by a provider of health services with respect to the claim of such provider” (emphasis added).

Therefore, since the hospital established that the insurance company’s payment of the no-fault billing was overdue, and the insurance company did not raise a triable issue of fact, the hospital was entitled to summary judgment on its claim for statutory interest and an attorney’s fee. Accordingly, we remit the matter to the Supreme Court, Nassau County, to calculate the amount due the hospital. H. Miller, J.P., Luciano, Fisher and Covello, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from as limited by plaintiffs’ brief, denied so much of a motion as sought partial summary judgment on behalf of plaintiff A.B. Medical Services PLLC.

Order, insofar as appealed from, unanimously reversed without costs, plaintiffs’ motion granted to the extent of awarding plaintiff A.B. Medical Services PLLC partial summary judgment in the principal sum of $4,575.44, 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.

Appeal as taken by plaintiffs D.A.V. Chiropractor P.C. and Acupuncture P.C. unanimously dismissed.

Plaintiffs commenced this action to recover $6,080.18 in first-party no-fault benefits for medical services rendered to the assignor. Thereafter, a motion was brought seeking partial summary judgment in the principal sum of $4,575.44 based on some claims made by plaintiff health care provider A.B. Medical Services PLLC. Said 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 it sustained, and that payment of no-fault benefits was overdue (see [*2]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 case at bar, the defendant’s failure to object to the completeness of the assignments within 10 days of receipt constituted a waiver of any defenses based thereon (New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]).

The appeal as taken by the other plaintiffs is dismissed since they lack an interest in the specific sums in controversy upon the appeal (see CPLR 5511).

Accordingly, plaintiff A.B. Medical Services PLLC is awarded partial summary judgment in the principal amount of $4,575.44 and the case is remanded for the calculation of statutory interest and attorney’s fees thereon, as well as for all further proceedings on the remaining claims.
Decision Date: November 04, 2005

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 (Loren Baily-Schiffman, J.), entered on September 10, 2004. The order, insofar as appealed from, denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and Square Square Transportation, Inc.

Order, insofar as appealed from, unanimously modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Daniel Kim’s Acupuncture P.C. and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and upon searching the record, summary judgment is granted in favor of defendant dismissing the cause of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

Appeal by plaintiff Somun Acupuncture P.C. unanimously dismissed.

The motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, in searching the record, the claim by said plaintiff is hereby dismissed. The revised insurance regulations, applicable to claims submitted on or after April 5, 2002, “no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11 [a]; Insurance Law § 5102 [a] [1])” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [*2][2003]). Accordingly, while “[s]uch reasonable and necessary expenses remain reimbursable (see Insurance Law § 5102 [a] [3] . . . [they are] nonassignable)” (id.). The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs subsequent to the effective date of the revised regulations. Under the authority of Matter of Medical
Socy. of State of N.Y. v Serio (100 NY2d 854, supra), such costs are nonassignable, and the claim by Square Synagogue Transportation Inc. must be dismissed.

Plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Daniel Kim’s Acupuncture P.C., established a 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). It is uncontroverted on the record that defendant failed to pay or deny the claims of said plaintiffs within the 30-day period, and it is accordingly precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the court below properly determined that defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms in any event constitutes a waiver of any defenses with respect thereto (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

However, an untimely denial does not preclude defendant from asserting a lack of coverage defense on the ground that the alleged injuries were not causally related to the accident (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]), or that the collision was in furtherance of an insurance fraud scheme (see Central Gen. Hosp., 90 NY2d at 199; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists]). Defendant’s submissions in the instant case, consisting of, inter alia, excerpts from an examination under oath taken of plaintiffs’ assignor and the affidavit of its claim representative were insufficient to demonstrate that the insurer’s 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; see also A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U], supra).

Accordingly, since defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557 [1980]), the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Daniel Kim’s Acupuncture P.C. is [*3]granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellant, Somun Acupuncture P.C., the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: November 04, 2005

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 November 18, 2003. The order denied plaintiff’s motion to dismiss certain affirmative defenses.

Order unanimously affirmed without costs.

Plaintiff commenced the instant action to recover damages for personal injuries he allegedly sustained as a result of an accident which occurred in Queens. He sought to recover under the uninsured motorist endorsement of his automobile liability policy based upon the negligence of an uninsured motorist, as defined by said policy. The policy was issued in Virginia. Defendant insurer, in its answer, interposed various [*2]
affirmative defenses, including three which alleged, in substance, that the action was barred or limited based upon plaintiff’s failure to sustain a “serious injury” as defined by Insurance Law § 5102(d). Plaintiff subsequently moved to dismiss those affirmative defenses on the ground that he was not required to prove “serious injury” inasmuch as there was no “serious injury” requirement under Virginia law or under the Virginia uninsured motorist endorsement. The motion was denied by the court below, predicated upon plaintiff’s invocation of the jurisdiction of the New York courts when he initiated the lawsuit (alleging that he was a New York resident) and upon the occurrence of the accident in New York. The court stated that the law of New York, which imposes a “serious injury” requirement, would apply, and the instant appeal ensued.

Since this case involves a claim by an insured against his insurer for benefits to which he claims he is entitled under the uninsured motorist endorsement of the liability policy, this action is a contract case, and is distinguishable from an action seeking damages for personal injury which would be brought against the alleged tortfeasor. However, claims for uninsured motorist benefits by an insured against an insurer present issues which are actually a mixture of contract and tort. “Such claims are based on the coverage agreement in the insurance contract which typically limits benefits to sums which the insured would be ‘legally entitled to recover as damages’ from the uninsured owner or operator. Thus payment of benefits under the contract [*3]
terms depends upon the uninsured motorist’s tort liability to the insured” (3-32 No-Fault & Uninsured Motorist Auto Insurance § 32-00).

The Virginia statute regarding uninsured motorist coverage provides that the uninsured motorist endorsement must undertake “to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle” (Va. Code § 38.2-2206 [A] [emphasis added]). The statute further provides that an insured relying upon the uninsured motorist endorsement is required to establish “legal liability” (Va. Code § 38.2-2206 [H]). In our opinion, the term “legally entitled to recover” requires an insured to prove fault and damages just as if he or she had proceeded against the uninsured motorist instead of the carrier (see e.g. Matter of De Luca [MVAIC], 17 NY2d 76, 80-81 [1966]). Implicit in this analysis is that the insured be “legally entitled to recover” in the venue in which he chooses to commence the action. The carrier, therefore, should be able to assert any defenses that would be available to the uninsured motorist, in order to show that the insured is not entitled to recover, whether it be due to comparative negligence, immunity from suit, or the failure to reach the “serious injury” threshold, depending upon the laws of the applicable jurisdiction.
In tort cases brought in this state, New York uses an “interest analysis” in order to determine which jurisdiction has the greater interest in having its law applied to the litigation. Laws distributing the loss after the accident happens, such as contribution or charitable immunity, may implicate significant governmental interests (see Matter of Allstate Ins. Co. [Stolarz—N.J. Mfrs. Ins. Co.], 81 NY2d 219, 225 [1993]). Loss-allocating rules are those which “prohibit, assign, or limit liability after the tort occurs” (Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]), such as charitable immunity statutes, guest statutes and vicarious liability statutes. New York’s law requiring a “serious injury” threshold has been held to involve issues of loss allocation (see Kranzler v Austin, 189 Misc 2d 369 [App Term, 2d & 11th Jud Dists 2001]; Jean v Francois, 168 Misc 2d 48 [1996]). Where the specific issue raised relates to allocating losses which result from tortious conduct, both the situs of the tort as well as the domiciles of the litigants will be examined (see Neumeier v Kuehner, 31 NY2d 121 [1973]).

The accident location and situs of the loss or injury are in New York. Plaintiff’s counsel has conceded herein that, at the time of the accident, plaintiff had moved from Virginia to New York, and in fact based venue upon his residence in Queens County. Moreover, strong policy considerations underlie New York’s serious injury threshold requirement. The rationale underlying the “serious injury” requirement was to reduce the number of litigated automobile personal injury accident cases by keeping minor personal injury cases out of court (see Licari v Elliott, 57 NY2d 230 [1982]; Kranzler v Austin, 189 Misc 2d 369, supra; see also Restatement [Second] of Conflict of Laws § [*4]
6). Were the New York courts not to apply the threshold requirement, the rationale for the New York law would be seriously eroded.

In view of the foregoing, the law of New York should be applied, and plaintiff should be required to demonstrate that he sustained a “serious injury.” Accordingly, the court below did not err in denying plaintiff’s motion to dismiss defendant’s first three affirmative defenses.
Decision Date: November 04, 2005

—[*1]

In a proceeding pursuant to CPLR 7511 to vacate an award of a master arbitrator dated September 25, 2003, affirming an award of an arbitrator dated July 9, 2003, the appeal is from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated November 12, 2004, which denied the petition and dismissed the proceeding.

Ordered that the order is affirmed, with costs.

Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied (see Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Here, the petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. The arbitrator acted within his discretionary authority in refusing to entertain late submissions from each of the parties. Moreover, the determination of the master arbitrator affirming the original award had a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232 [1982]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]). Crane, J.P., Santucci, Mastro and Dillon, JJ., concur.

—[*1]

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated February 24, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff sustained personal injuries in an automobile accident on August 22, 1994. Since that time, she has pursued two prior actions and an arbitration against her insurer, the defendant Country-Wide Insurance Company, to recover, inter alia, both uninsured and no-fault benefits under her policy. As a result thereof, the plaintiff recovered the full amounts of her policy limits, as well as statutory penalties for the defendant’s delay in paying her claims. As relevant to the instant appeal, in connection with the settlement of the plaintiff’s second action, which was commenced on or about January 24, 2000, the plaintiff executed, inter alia, a general release, dated January 25, 2002. In the instant action, the plaintiff seeks, inter alia, damages for breach of contract based on the defendant’s alleged bad faith in delaying the processing of her insurance claims.

The general release, dated January 25, 2002, which the plaintiff signed, bars the instant action (see Falconieri v A & A Discount Auto Rental, 262 AD2d 446, 447 [1999]; DeQuatro v Zhen Yu Li, 211 AD2d 609, 609-610 [1995]). [*2]

The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. H. Miller, J.P., Adams, Spolzino and Fisher, JJ., concur.