—[*1]

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 25, 2004, which denied its motion to sever the causes of action to recover unpaid no-fault benefits asserted by the plaintiff.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is granted, and the causes of action to recover no-fault benefits are severed.

The plaintiff, the assignee of 47 no-fault claims, commenced this action to recover unpaid no-fault benefits for medical services he allegedly provided to 47 different patients, the plaintiff’s assignors. Following joinder of issue, the defendant insurer moved to sever the 47 causes of action. The Supreme Court denied the motion. We reverse.

While the claims at issue are being prosecuted by a single assignee against a single insurer and all allege the erroneous nonpayment of no-fault benefits (see generally Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569 [1987]), they arise from 47 different automobile accidents on various dates in which the 47 unrelated assignors suffered diverse injuries and required different medical treatment. Moreover, the defendant persuasively contends that the reasons for the denial of benefits, as well as the defenses raised in its answer, are many and varied, and would necessarily entail mini-trials as to the individual claims. Under these circumstances, it was an improvident [*2]exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; see also Deajess Med. Imaging, P.C. v GEICO Gen. Ins. Co., 2005 WL 823884, 2005 US Dist LEXIS 5957 [SD NY, Apr. 7, 2005]; Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [SD NY, July 15, 2004]). Schmidt, J.P., Mastro, Rivera and Skelos, JJ., concur.

—[*1]

In an action to recover unpaid no-fault insurance medical benefits, the defendant appeals (1) from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (McCarty, J.), entered April 1, 2004, as, upon a decision of the same court dated January 23, 2004, granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital, and, in effect, denied its cross motion for summary judgment dismissing the complaint, and is in favor of the plaintiff New York and Presbyterian Hospital and against it in the principal sum of $14,574, (2), as limited by its brief, from so much of an order of the same court entered June 30, 2004, as, in effect, upon reargument, adhered in part to the prior determination in the decision dated January 23, 2004, and (3) from so much of an order of the same court entered August 25, 2004, as denied its motion for leave to renew that branch of the plaintiff’s prior motion which was for summary judgment on the first cause of action.

Ordered that the appeal from the order entered June 30, 2004, is dismissed as no appeal lies from an order made upon reargument and adhering to the prior determination in a decision (see Matter of A & S Transp. Co. v County of Nassau, 154 AD2d 456 [1989]); and it is further,

Ordered that the appeal from the order entered August 25, 2004, is dismissed as [*2]academic in light of the determination of the appeal from the order and judgment; and it is further,

Ordered that the order and judgment is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital is denied, and the decision entered June 30, 2004, and the order entered August 25, 2004, are vacated; and it is further,

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

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits was overdue” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]). However, in opposition to the motion, the defendant established that it had previously and timely denied the same claim, and that the no-fault billing at issue was a resubmission of a claim to which the rule that a claim must be paid or denied within 30 days did not apply (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]).

Notwithstanding that the defendant established that its prior denial of the claim was timely, the defendant failed to establish its entitlement to summary judgment dismissing the complaint based on the intoxication exclusion (see Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]; North v Travelers Ins. Co., 218 AD2d 901 [1995]). Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied its motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted 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 services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by
proof that it 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]). In opposition, defendant contended that the claims were properly denied based on, inter alia, the assignors’ failures to attend independent medical examinations (IMEs).

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 [*2]medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed on the record that defendant timely denied the claims pertaining to assignors Alex Kapitonov and Leny Petrov. However, defendant has failed to establish by proof in admissible form proper mailing of the pre-claim IME requests as to these assignors. Defendant submitted the affidavits of an employee of Allegiance Health Medical P.C. which schedules IMEs for defendant, and the affidavit of its “no-fault specialist and manager.” The affidavits, however, are insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the IME request letters were actually mailed. Nor did the affidavits 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]; Careplus Med. Supply v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, defendant has failed to sustain its defense of nonattendance of scheduled pre-claim IMEs as to these assignors. There is also no merit to defendant’s argument on appeal that the claim for services rendered to assignor Petrov was properly denied on the additional ground of improper and/or excessive charges, since in
opposition to plaintiff’s motion for summary judgment, defendant failed to submit any proof in admissible form in support of this defense.

The claim pertaining to assignor Christina Tomlinson was not timely denied within the 30-day prescribed period (see 11 NYCRR 3.8 [c]), nor did defendant produce competent proof in admissible form to establish that the 30-day period was extended by timely verification requests for medical records and for a post-claim IME (see 11 NYCRR 65-3.5 [a]). Defendant’s submissions were insufficient to establish proper mailing of said verification requests (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, supra). Moreover, even assuming proper proof of mailing, defendant has failed to demonstrate that it complied with the follow-up requirements applicable to post-claim verification requests (see 11 NYCRR 65-3.6 [b]). Accordingly, as to this claim, defendant is precluded from asserting its defense of nonattendance at the scheduled IME (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

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

Rios and Belen, JJ., concur. [*3]

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

Golia, J.P., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

There appears to be no issue as to the mailing of a timely denial by the defendant as to the claim of two of the three assignors (Kapitonov and Petrov) due to said assignors’ failure to attend pre-claim independent medical examinations (IMEs).

As regards to Ms. Tomlinson, the defendant noticed her to appear for a pre-claim IME by letter dated November 12, 2002 scheduling an exam to be held on December 4, 2002. The Tomlinson claim was submitted on November 22, 2002 which was after the notice but prior to the time to appear. Upon Ms. Tomlinson’s failure to appear on December 4, 2002, the defendant noticed her to appear by letter dated December 10, 2002 for a rescheduled IME on December 24, 2002. Although I do not believe that defendant was required to provide for a re-scheduled exam for a pre-claim IME, I cannot fathom that it should be penalized for giving the plaintiff’s assignor a further opportunity to comply. Therefore the 30 day “delay” letter, although similarly unnecessary was nevertheless timely, effective and not inappropriate in this instance. It should however be understood that once an IME is demanded prior to the filing of a claim (pre-claim IME) then any and all subsequent requests for medical examinations will not alter the status of the original demand. It is abundantly clear that the insurer is not seeking an IME as a post-claim request for additional verification which would require compliance with the protocols set forth under the claim provisions. The mere fact that a subsequent request for an IME is sent after the plaintiff files a claim does not transform a second (or third) notice to reschedule a pre-claim IME into a post-claim additional verification request for an independent medical examination. Upon Ms. Tomlinson’s failure to attend the rescheduled IME, the defendant sent a timely denial of claim notice.

The remaining issue concerns the sufficiency of the defendant’s affidavits relating to the mailing of the various IME requests. Although the defendant’s affidavits do not contain detailed mailing procedures necessary to establish proof that a certain item was mailed when faced with a sworn statement that it was not received, I do find that the sworn statements by defendant’s medical examination “scheduler” are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]). Further, I find that the defendant’s timely denials of all of the plaintiff’s claims on the grounds that plaintiff’s assignors failed to attend reasonably requested pre-claim IME’s are sufficient to warrant denial of the plaintiff’s motion for summary judgment.
Decision Date: July 07, 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 (J. Battaglia, J.), entered June 1, 2004, which granted plaintiff’s motion for summary judgment in the sum of $879.73, and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

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 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant denied plaintiff’s claim more than two months after its receipt. The court below properly determined that defendant’s requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations in effect at the time lacked a provision entitling an insurer to an examination under oath (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists]). [*2]

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s claims representative 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]). Consequently, plaintiff’s motion for summary judgment should have been denied. Inasmuch as there are triable issues of fact warranting a trial, defendant’s cross motion was properly denied.

Rios and Belen, JJ., concur.

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

Respondent,

-against-
UTICA MUTUAL INSURANCE COMPANY,

Appellant.

Golia, J.P., concurs in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Decision Date: July 07, 2005

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 (R. Garson, J.), entered on May 20, 2004, as denied their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof 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]; 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 plaintiffs’ motion, defendant asserted the defense 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]). Unlike the affidavit in the case of A.B. Medical Servs. PLLC v GMAC Ins., 7 Misc 3d 132[A], 2005 NY Slip Op 50602[U] [App Term, 2d & 11th Jud Dists]), the affidavit of the defendant’s claims representative herein set forth additional facts sufficient to demonstrate that the 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 [1997]; Mount Sinai Hosp., 263 AD2d at 18-19). [*2]Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: July 07, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered March 5, 2004, which denied its motion for summary judgment.

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

In this action to recover $2,616.29 in first-party no-fault benefits for medical equipment supplied its assignors, plaintiff established its prima facie entitlement to [*2]
summary judgment by proof that it submitted statutory claim forms setting forth the fact and 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). We note that the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle to assert the facts of a no-fault claimant’s submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56, supra; Ocean Diagnostic Imaging v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51032[U] [App Term, 9th & 10th Jud Dists]).

Defendant’s untimely denial of the Arias claim (for $790.45) precluded defenses to the action, with exceptions not herein relevant, and warranted summary judgment on this ground alone (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to the [*3]
remaining claims (Aranova for a total of $1,825.84), which defendant denied on the basis of unsworn nurse’s “medical reviews” of the treatment files, as plaintiff properly objected below, said unsworn reviews “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]; 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]). Defendant offered no acceptable excuse for its failure to proffer the reviews in admissible form in opposition to the motion for summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, the herein medical reviews, which included no statement of the reviewing nurse’s training, observations or actual experience, failed to establish the competency of the reviewers’ medical opinions and conclusions drawn from the facts (People v Monroe, 307 AD2d 588, 591 [2003]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). [*4]

Finally, defendant’s challenge to the propriety of the assignment of benefits form is also without merit. Defendant failed timely to seek verification of the assignment’s validity or to assert facial deficiencies in the assignment form as a basis for the claims’ denial and, thereby, it waived any such objections. While we are as mindful as our dissenting colleague of the integrity of the assignment process, we are constrained by the broad language adopted by the Appellate Division which unambiguously refers all issues bearing upon the validity of a no-fault benefits assignment to the verification process (New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Presbyterian Hosp. In City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]) and which this court applied in analogous circumstances (e.g. Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 6 Misc 3d 130[A], 2005 NY Slip Op 50076[U] [App Term, 2d & 11th Jud Dists]). [*5]

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint in the following memorandum:

I simply cannot concur with the majority opinion as relates to the facts of this case.

With regard to the facts herein, a document has been submitted as an “assignment” of benefits by the alleged eligible insured to the benefit of the plaintiff medical provider. It is, in fact, not an assignment, or any other document with “legal”
significance. It is simply a preprinted form, that is not signed, acknowledged, or ratified by anyone. Indeed, it doesn’t even rise to the level of a forgery.

Nevertheless, the majority finds that this “document” falls within the line of cases that holds that the failure to demand verification during the claims procedure constitutes a waiver and precludes any objection to the assignment form (see Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists]). Therefore, my colleagues find that this paper should be deemed to be equivalent to an assignment form that was signed but not notarized, or notarized but failed in some other aspect.

Even in the simplest of circumstances no one would present a document for payment without making sure that a signature was affixed thereon. It appears that this simplest of circumstances does not appeal to the majority.

The line of appellate cases relied upon by the majority, and others on which I participated, have all dealt with assignments which contained the signature of the eligible insured person. My dissent in this case does not conflict with my findings in those cases and I therefore do not address whether or not I still adhere to those decisions.

I simply do not fathom how an unsigned piece of paper can form the predicate for an order granting summary judgment directing payment from anyone to anyone.

The mere fact that the defendant failed “timely to seek verification of the assignment’s validity or to assert facial deficiencies” should not be deemed to confer standing to the holder of an unsigned piece of paper and thereby result in a money judgment.

Accordingly, I dissent and vote to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint.
Decision Date: July 07, 2005

[*1]

Supreme Court, Appellate Term, Second Department, July 7, 2005

Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444, reversed.

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

{**9 Misc 3d at 53} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, motion for partial summary judgment by plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, granted and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon.

Appeal by plaintiff Jamil M. Abraham M.D. P.C., doing business as Park Health Center, unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, established a prima facie entitlement to partial summary judgment in the sum of $1,791.73 for medical services rendered to its assignor, by proof that it submitted the 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. [*2]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 2003]). In opposition to plaintiff’s motion, defendant challenged the sufficiency of plaintiff’s prima facie showing on the ground that plaintiff’s claim forms were not proper verification claim forms. As the court below noted, while NF-3 claim forms contain an entry calling for the disclosure of the relationship between the billing provider and the treating provider, the generic claim forms submitted by plaintiff, which identified it as the billing provider and the treating physician as Dr. Myung Choi, do not contain such an entry, and do not otherwise indicate the relationship between the billing and treating providers. The court determined that pursuant to 11 NYCRR 65.15 (j) (1), if the treating provider was an employee of the billing provider, then the billing provider would be entitled to recover no-fault benefits, but that if the treating provider was an independent contractor, the billing provider would not be entitled to direct{**9 Misc 3d at 54} payment, since it did not provide the medical services. The court then held that in the absence of information disclosing the relationship between the billing provider and the treating physician, plaintiff did not submit a proper proof of claim, and hence failed to establish a prima facie case of entitlement to payment of no-fault benefits.

We note initially that the court below properly determined that a billing provider may not recover no-fault benefits where the services were rendered by an independent contractor. The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

Accordingly, where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists, Mar. 1, 2005]). A defense that a plaintiff in an assigned first-party no-fault action may not maintain the action because it is not a “provider” within the meaning of the insurance regulations, and hence that no-fault benefits are not assignable to it, is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003] [transportation charges are no longer assignable under the revised regulations [*3]effective April 5, 2002]).

In the instant case, the plaintiff’s claim forms do not disclose the relationship between the billing provider and treating physician{**9 Misc 3d at 55} (cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [2005], supra). However, contrary to the lower court’s determination, said omission does not defeat plaintiff’s prima facie showing. In opposition to plaintiff’s motion, defendant did not assert the nonwaivable defense that the services were provided by an independent contractor, and that plaintiff was therefore not a “provider” under 11 NYCRR 65.15 (j) (1). Rather, defendant’s defense was predicated merely on the insufficiency of the plaintiff’s claim forms without asserting and establishing by proof in admissible form that the status of the treating provider was in fact that of an independent contractor, a fact which could have been ascertained by means of the verification process. In the absence of proof that defendant sought proper verification of the alleged deficiencies in the claim forms and that it timely denied the claims on this ground, it has waived any objections pertaining to the adequacy of the claim forms (see Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]). Accordingly, upon the record before us, we disagree with the determination of the court below that the omitted information in plaintiff’s claim forms warrants a denial of its motion for summary judgment.

Defendant’s remaining argument, namely, that plaintiff failed to produce an authenticated assignment form, is without merit. 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 such 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 2001]).{**9 Misc 3d at 56}

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

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

[*1]

Supreme Court, Appellate Term, Second Department, July 7, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants-respondents. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent-appellant.

{**9 Misc 3d at 37} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously modified by granting the defendant’s cross motion to dismiss the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiffs DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and G.A. Physical Therapy P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, the NF-3 claim forms attached by plaintiff A.B. Medical Services PLLC in support of its motion for summary judgment provided, under the item calling for information where the “treating provider is different than [the] billing provider,” that the licensed “treating provider” was Dr. Ronald Collins, M.D., and that the “business relationship” was that of “independent contractor.”

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “[a]n insurer shall pay benefits . . . directly to the applicant or . . . upon [*2]assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

It is undisputed on the record that both A.B. Medical and Dr. Collins are licensed providers of health care services, and, as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the{**9 Misc 3d at 38} defendant insurer. Accordingly, the order of the court is hereby modified by providing that defendant’s cross motion for summary judgment dismissing the complaint as to plaintiff A.B. Medical is granted.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see Informal Ops dated Feb. 21, 2001, Feb. 5, 2002, Mar. 11, 2002, Oct. 21, 2003) which are entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 20, 2004, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted 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 assigned first-party no-fault benefits for medical equipment provided its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted the functional equivalent of the statutory claim forms (see 11 NYCRR 65-3.5 [a], [f]) setting forth the fact and 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]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists]; see also Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). Further, the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application, whether for health services or medical equipment (e.g. Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra), and there is no requirement that a billing manager allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor (see King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d at 56) particularly where, as here, assignor signed a document acknowledging receipt of the prescribed equipment, the authenticity or accuracy of [*2]which was unchallenged below. If defendant questioned the document’s propriety, its remedy was to invoke the verification procedures.

Insofar as the determination below rests on the purported absence of proof of an assignment, it is erroneous as plaintiff submitted copies of combined equipment receipt/assignment of benefits forms, which submission defendant does not deny. In any event, if defendant perceived any defect on the face of the assignments or required further proof thereof, its remedy was to seek verification of same, or at least, to allege such defect as a basis of a timely denial (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]; 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. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70, 71 [App Term, 2d & 11th Jud Dists 2004]). With respect to the alleged lack of authentication of the assignor’s signature (raised for the first time on appeal), it is unpreserved and without merit. “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 Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]; see also Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d at 71).

Accordingly, plaintiff’s motion for summary judgment should have been granted, and 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.
Decision Date: July 06, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Suffolk County (T. Bean, J.), dated September 20, 2004, granting defendant’s motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

As subrogee, plaintiff commenced this action on or about May 26, 2004 to recover monies paid to its insured for amounts in excess of no-fault benefits, for injuries arising out of an accident occurring on May 2, 2001. Contrary to the determination of the court below, Insurance Law § 5105 which pertains to “Settlement between insurers” has no application herein (see Federal Ins. Co. v Hansen, 162 AD2d 224 [1990]).

After defendant moved for summary judgment dismissing the complaint on the ground that the instant action was, inter alia, barred by the statute of limitations, plaintiff asserted that it had previously served defendant with a summons and complaint in April 2004, by which it sought to recover the same excess no-fault benefits, and cross-moved
for leave to file the proof of service for its April summons and complaint nunc pro tunc
(see UDCA 411). Although the court below did not address the cross motion in its written decision, upon a review of the record, we find that under the circumstances herein, said cross motion should not be granted. Inasmuch as the subrogee acquires only the rights that the subrogor had, the statute of limitations begins to run from the date of the accident (see Allstate Ins. Co. v Stein, 1NY3d 416 [2004]). Since the instant action was commenced more than three years after the accident, the action was time-barred and the complaint was properly dismissed.
Decision Date: June 27, 2005