[*1]

Supreme Court, Appellate Term, Second Department, September 20, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Troy & Troy, Lake Ronkonkoma (Hariharan Krishnaraj and Leonard Romano of counsel ), for respondent.

{**9 Misc 3d at 98} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, unanimously 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 this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the 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 Term, 9th & 10th Jud Dists 2003]). Contrary to the determination of the court below, defendant’s denial of claim form, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (see Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip{**9 Misc 3d at 99} Op 50526[U] [App Term, 2d & 11th [*2]Jud Dists 2005]; 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 2004]). Defendant’s denial of claim forms indicate that defendant’s denial of plaintiff’s claims was not timely made within the 30-day statutory period within which it was required to pay or deny the claim (11 NYCRR 65-3.8 [c]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of nonconformity with the workers’ compensation schedules and excessive billing (see 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] [2005], supra; Triboro Chiropractic & Acupuncture, PLLC 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 2005]).

Defendant also denied the claims on the ground that the response submitted by plaintiff’s assignor to defendant’s wage verification request was fraudulent. In support thereof, defendant submitted the affirmation of its attorney and an attached unsworn report of a handwriting expert, who compared the writing in the wage verification form submitted by the plaintiff’s assignor and the wage verification form submitted by another claimant “involved” in the subject accident, and concluded that the forms had been prepared by the same individual, but could not give an opinion regarding the two signatures “because of the lack of similar letters.” Defendant argues that, despite its untimely denial, it is not precluded from asserting its defense of fraud. Defendant’s argument is without merit.

We note at the outset that the documentation submitted by defendant in support of its fraud defense, consisting of the affidavit of its attorney who is without personal knowledge, and the unsworn affidavit of a handwriting expert, does not constitute competent proof in admissible form (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 7 Misc 3d 136[A], 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]). In any event, defendant has failed to establish that its defense of fraud is not subject to the 30-day preclusion remedy.

In Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195, 199 [1997]), the Court of Appeals held that

“despite . . . [an insurer’s] failure to reject a claim within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) [now 11 NYCRR 65-3.8 (c)], [it] may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” (Emphasis supplied.)

The Court specifically distinguished the insurer’s defense that the injuries were unrelated to the accident, a defense implicating “no coverage at all” (id. at 202), and hence exempt from the preclusion remedy, from the insurer’s defense of excessive medical treatment, which involves “excusal from payment of some part of no-fault benefits—a matter of degree at best” (id.), and is subject to the preclusion remedy. The lack of coverage defense also applies to a “collision . . . caused in the furtherance of an{**9 Misc 3d at 100} insurance fraud scheme” (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 751-752 [2002]) but does not encompass the defense of provider fraud which is precluded by an insurer’s untimely denial (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

In the instant case, the defendant’s submissions in support of its defense of fraud fail to establish a lack of coverage defense that may be deemed exempt from the preclusion remedy. [*3]The expert’s conclusions are insufficient to raise an issue of fact as to whether the medical services rendered “do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199), so as to implicate a lack of coverage issue. Moreover, the acts allegedly constituting the fraudulent conduct are inadequate to demonstrate that the accident was in furtherance of an insurance fraud scheme so as to invoke the lack of coverage defense and exemption from the preclusion remedy (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002], supra).

Accordingly, summary judgment is granted in favor of plaintiff 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.

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.

—[*1]

In an action to recover no-fault medical payments, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jonas, J.), dated August 20, 2004, which granted the defendant’s motion to vacate a judgment of the same court entered April 30, 2004, upon its default in opposing the plaintiffs’ motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the judgment is reinstated.

A defendant seeking to vacate a judgment entered upon default is required to demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Carnazza v Shoprite of Staten Is., 12 AD3d 393 [2004]; Henry v Kuveke, 9 AD3d 476 [2004]; Weekes v Karayianakis, 304 AD2d 561 [2003]). The defendant failed to do either. The defense counsel’s excuse of law office failure was conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse (see Fekete v Camp Skwere, 16 AD3d 544 [2005]; Juarbe v City of New York, 303 AD2d 462 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993]).

In addition, the defendant failed to present a meritorious defense to the action. [*2]Contrary to the defendant’s contention, written proof of claim on behalf of Michele Carias was timely submitted to it within 180 days after the date the services were rendered, as required pursuant to 11 NYCRR 65.12 (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]). The affidavit submitted by the defendant’s claims representative was insufficient to demonstrate that the injuries for which Carias was treated did not arise out of an insured incident (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391 [2005]; Santiago v Sansue Realty Corp., 243 AD2d 622, 623 [1997]; Peacock v Kalikow, 239 AD2d 188 [1997]). Moreover, the defendant’s submissions failed to demonstrate that it denied Mario Delgado’s claim for no-fault medical payments within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Accordingly, the defendant’s motion to vacate the judgment entered upon its default in opposing the motion for summary judgment should have been denied (see Presbyterian Hosp. in City of N.Y. v New York Cent. Mut. Ins. Co., 277 AD2d 299, 300 [2000]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on July 14, 2004, as denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. in the sum of $14,669.64.

Order insofar as appealed from unanimously reversed without costs, motion by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Appeal by plaintiff Daniel Kim’s Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount 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]). Contrary to the determination of the court below, the defendant’s denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiffs sent, and that defendant received, the claims (see 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]; 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]). Moreover, the lack of authentication of an assignor’s signature, in and of itself, does not [*2]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 and to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; 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]; Diagnostic Rehab. Med. Servs. 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]).

It is uncontroverted that defendant timely denied the claims. In opposition to plaintiffs’ motion, defendant argued, inter alia, that the claims were properly denied on the ground that plaintiffs’ assignors failed to attend independent medical examinations (IMEs) scheduled by A. Samenga & Associates at the request of defendant’s claims representative. Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . . [and] such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

While plaintiffs have effectively conceded receipt of the IME notices dated August 6, 2001 and August 7, 2001 addressed to the assignors’ attorney, there was no competent proof of mailing to assignor Khlevner (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), and defendant has acknowledged that no notices were mailed to assignor Sultan. Under the circumstances, defendant’s opposition papers are insufficient to rebut the presumption of medical necessity (see Careplus Med. Supply Inc. v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]).

Inasmuch as no issue is raised relating to the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]). [*3]

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C., 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.
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 29, 2004, which denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment, deemed an appeal from a judgment of the same court, entered August 23, 2004, awarding plaintiff the sum of $1,819.20.

Judgment unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established 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]; 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]). Assuming arguendo that defendant timely denied the claims, it nevertheless had to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra).

In the instant action, defendant’s denial was predicated upon the failure of plaintiff’s assignor to appear for pre-claim independent medical examinations (IMEs). Although the failure of plaintiff’s assignor to appear at a pre-claim IME can be sufficient to rebut a prima facie case established by plaintiff, to properly interpose such opposition to plaintiff’s cross motion for summary judgment, defendant had to proffer evidence in admissible form establishing the failure of plaintiff’s assignor to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). While defendant’s counsel and defendant’s claims representative averred that plaintiff’s assignor failed to appear for pre-[*2]claim IMEs, they failed either to establish that they had personal knowledge that the requests for such IMEs were mailed to plaintiff’s assignor or to create a presumption of mailing by submitting an affidavit describing the standard office practice or procedures defendant uses to ensure that such letters are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff was entitled to summary judgment because defendant failed to rebut the prima facie case established by plaintiff (see Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; S & M Supply v GEICO Ins., 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U], supra; cf. Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: August 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on February 19, 2004, as denied its cross motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, order entered December 7, 2004 dismissing the action vacated, plaintiff’s cross motion for summary judgment granted in the sum of $1,432.43, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff established a prima facie entitlement to summary judgment in in the sum of $739.80, as assignee of Clara Suckragh, and the sum of $692.63 as assignee of Peter Suckragh, for a total of $1,432.43, by proof that it submitted the claims, setting forth the fact and the amount 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]). In opposition, defendant argued that it properly denied the claims on the grounds, inter alia, that the documentation submitted by plaintiff was not an accurate representation of the actual cost of the equipment and that certain of the claims were in excess of the “average” wholesale cost of the billed medical supplies.

The record indicates that defendant denied the claims beyond the 30-day period within which it was required to pay or deny the same (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). While a timely verification request may extend the 30-day period, the affidavit of defendant’s litigation examiner was insufficient to demonstrate proper mailing of the verification [*2]request as to assignor Clara Suckragh since there is no allegation by one with personal knowledge that the letters were actually mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing
procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Accordingly, as to assignor Clara Suckragh, defendant 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]).

While defendant’s submissions were adequate to establish a tolling of the 30-day period with regard to assignor Peter Suckragh by proof of its receipt of the verification requested, defendant has failed to submit proof in admissible form in support of its defense that the documentation submitted by plaintiff was “not an accurate representation of [plaintiff’s] actual cost” of the equipment. Moreover, defendant’s partial denials of certain of the claims on the ground that these were in excess of the “average” wholesale cost of the billed medical supplies, fail to state a valid basis for denial under the insurance regulations then in effect (see e.g. Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; King’s Med.
Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]). The insurance regulations governing medical equipment and supplies applicable to the instant action limits the amount recoverable by a provider of medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]). The defendant’s denial of benefits on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location has been rejected for claims under the regulations in effect prior to October 6, 2004 (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44, supra; King’s Med. Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U], supra).

We note that pursuant to the revised Insurance Department regulations regarding durable medical equipment and supplies, effective October 6, 2004 (see Circular Letter No. 8 [2004]; 11 NYCRR Appendix 17-C, part F, eff. October 6, 2004), the fee schedule for medical equipment sets forth, in addition to the 150% limit, the “usual and customary price charged to the general public” (11 NYCRR Appendix 17-C,
part F [a] [2]), whichever is less.

Accordingly, plaintiff’s cross motion for summary judgment is granted in the sum of [*3]$1,432.43, 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.
Decision Date: August 17, 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 (Eileen Nadelson, J.), entered June 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished 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]). In opposition to the motion, defendant submitted peer reviews asserting a factual basis and medical rationale sufficient to raise a triable issue as to the medical equipment’s medical necessity (Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o Lacos Moscoso Martinez,

Appellant,

-against-
HEREFORD INSURANCE COMPANY,

Respondent.

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: August 11, 2005

—[*1]

In an action to recover unpaid no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated November 17, 2003, which denied its motion for summary judgment on the first and second causes of action and granted the defendant’s cross motion for summary judgment dismissing those causes of action.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross motion which were for summary judgment dismissing the first and second causes of action and denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor provisions denying those branches of the cross motion, reinstating the first and second causes of action, and granting that branch of the motion which was for summary judgment on the first cause of action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in concluding that the plaintiff lacked standing to bring the action absent proof of a valid assignment from each claimant. The hospital facility forms submitted on behalf of the respective patients indicated that the signature of each patient/assignor was “on file.” There was no allegation or evidence that the defendant timely objected to the completeness of the forms or sought verification of the assignments as required by 11 NYCRR 65.15 (d). Accordingly, the defendant waived any defenses based thereon (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, 641 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). [*2]

With regard to the first cause of action, after the plaintiff made out a prima facie case for summary judgment, the defendant failed to raise a triable issue of fact as to whether the insured’s 2002 medical expenses “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [1996]; see 11 NYCRR 65.15 [o] [1] [iii]). In any event, the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]). Accordingly the plaintiff was entitled to summary judgment on the first cause of action.

With regard to the second cause of action, the defendant asserted that no policy of insurance was in effect covering the injured party on the date of the accident. While the defendant offered a denial of claim form dated December 30, 2002, to that effect, there was no affidavit of service to establish that the form was, in fact, mailed to the plaintiff within 30 days of receipt of the claim (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra). Regardless, “[s]trict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488, 489 [2001]). Here, a triable issue of fact exists as to whether coverage existed at the time of the accident at issue. Accordingly, neither party was entitled to summary judgment on this cause of action. H. Miller, J.P., Ritter, Goldstein and Skelos, 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 June 10, 2004, which denied their motion for partial summary judgment.

Order unanimously reversed without costs, plaintiffs’ motion for partial summary judgment granted awarding plaintiff A.B. Medical Services PLLC the sum of $5,405.98, plaintiff D.A.V. Chiropractic P.C. the sum of $88.44, and plaintiff Lvov Acupuncture P.C. the sum of $840.56, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff health care providers commenced this action to recover the sum of $6,523.32 in first-party no-fault benefits for medical services rendered to their assignor, and thereafter moved for partial summary judgment in the sum of $6,326.52, which was comprised of $5,397.52 in claims for A.B. Medical Services PLLC, $88.44 in claims for D.A.V. Chiropractic P.C., and $840.56 in claims for Lvov Acupuncture P.C. (We note, incidentally, that included in the amount sought in the instant motion by plaintiff A.B. Medical Services PLLC is a claim for $523.94 which, as conceded by defendant, should have been in the amount of $532.40, and we therefore modify the amount sought for this claim.) Upon a review of the record, we find that plaintiffs established a prima facie entitlement to partial summary judgment in the aggregate amount of $6,334.98, by showing that they submitted claims 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]; [*2]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 then shifted to defendant to show a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, however, did not meet its burden, since it failed to establish by competent evidence that its denial of claim forms were timely mailed within the requisite 30-day period to pay or deny the claims (11 NYCRR 65-3.8 [a] [1]). Although defendant in its opposition papers submitted an affidavit of its no-fault field adjuster who was familiar with the file, the affidavit did not allege that the denial of claim forms were actually mailed, nor did it describe the standard office practice or procedures used by defendant to ensure that such denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on the aggregate sum of $6,334.98, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder. We note that plaintiffs did not seek summary judgment for the balance due on the $71.06 claim for A.B. Medical Services PLLC and the balance due on the $425 claim for Lvov Acupuncture P.C., and the matter is therefore remanded for all further proceedings on those remaining claims.
Decision Date: July 28, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (D. Kurtz, J.), entered on June 4, 2004, as granted its motion for summary judgment to the extent of ordering an assessment of damages.

Order modified by providing that plaintiff’s motion for summary judgment is granted, by deleting therefrom the provision requiring an assessment of damages and by remanding the matter to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In awarding summary judgment in favor of plaintiff, the court erroneously set the
matter down for an assessment of damages. Inasmuch as plaintiff made out a prima facie case by the submission of proof of the claim and the amount of the loss sustained (Insurance Law § 5106), and the calculation of interest and attorney’s fees is prescribed by statute (Insurance Law § 5106 [a]) and the regulations promulgated thereunder (11 NYCRR 65-3.9 [a]; 65-3.10 [a]), there was no basis for the court to direct an assessment of damages (cf. S & M Supply Inc. v Dollar Rent A Car Sys., 5 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2004]).Accordingly, the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

We pass on no other issue.

Rios, J. and Belen, J., concur.

Golia, J.P., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Volmar Volcy,

Appellant,

-against-
ALLSTATE INSURANCE COMPANY,

Respondent.

Golia, J.P., 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.

I simply do not understand, and indeed marvel at, the failure of the defendant either to respond to or to include any affidavits by individuals with personal knowledge of the facts.
Decision Date: July 21, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan), entered April 28, 2004, denying its motion to sever the claim of each assignor into a separate action.

Order unanimously reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover no-fault benefits as assignee of 11 eligible injured persons. The claims allegedly arose out of separate accidents involving different assignors. Defendant moved to sever the assigned claims in the complaint into separate actions pursuant to CPLR 603, which motion the court below denied by order entered April 28, 2004. We note that although this case involves 11 different assignors, the appellate record is not clear as to whether the second through eleventh causes of action involve 5 or 10 separate accidents.

In light of the recent trend in cases involving severance of large numbers of assigned claims which, if tried together, would be unwieldy and would create a substantial risk of confusing the trier of fact, we find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [*2][2004]). Defendant’s answer clearly places at issue, inter alia, the necessity and reasonableness of the rendered medical supplies [*3]
and the sufficiency of the no-fault forms that have been submitted (see Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: July 21, 2005