[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Samuel K. Rubin, Bethpage, for respondent.

{**6 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

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 first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form 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 2003]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

In opposition to plaintiff’s motion, defendant failed to raise triable issues of fact. Defendant denied plaintiff’s claim on the ground that plaintiff’s assignor failed to appear for examinations under oath (EUOs). The revised insurance regulations, which took effect on April [*2]5, 2002, include EUOs in the mandatory personal injury protection endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). It is uncontroverted that plaintiff’s claim was submitted subsequent to April 5, 2002. However, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th & 10th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S & M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2004]). Accordingly, plaintiff’s failure to appear for EUOs cannot constitute a basis for denial of the claim.{**6 Misc 3d at 58}

Therefore, plaintiff’s motion for summary judgment should have been 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.

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

—[*1]

In an action to recover no-fault medical payments, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated November 17, 2003, which granted the plaintiff’s motion for summary judgment on its first and second causes of action.

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

In its first cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Adrian Leaf and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. In its second cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Noemi Gomez and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. The plaintiff asserts that the defendant is liable for the full amount of each claim on the ground that it failed to timely deny the claims.

With respect to the plaintiff’s first cause of action, the plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that it “submitted the requisite documents for payment, but [the defendant] neither paid nor denied the claims, nor requested verification within the requisite periods” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). In opposition thereto, the defendant demonstrated that there were issues of fact as to whether it [*2]partially exhausted the coverage limits of the policy by other “no-fault” payments and whether such payments were in compliance with 11 NYCRR 65.15 (n). The defendant’s failure to issue a denial of the claim within 30 days does not “preclude a defense that the coverage limits of the subject policy have been exhausted” (Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; see Presbyterian Hosp. of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]).

With respect to the plaintiff’s second cause of action to recover for services provided to Gomez, the defendant, in opposition to the plaintiff’s demonstration of its entitlement to summary judgment, submitted evidence that the disputed claim was the second of two successive claims for the same services, the first of which was properly denied. A failure to issue a timely written denial of the second of these two successive but identical claims would not warrant granting the plaintiff judgment as a matter of law (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

—[*1]In an action to recover unpaid no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 7, 2003, which denied his motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs payable to the plaintiff, and the complaint is reinstated.

There are issues of fact which precluded the granting of the defendant’s cross motion for summary judgment dismissing the complaint (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), including whether the plaintiff was intoxicated at the time of the accident within the meaning of the no-fault insurance law (see Insurance Law § 5103 [b] [2]; Vehicle and Traffic Law § 1192 [2], [3]), and whether his intoxication was a proximate cause of the accident (see Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]).

The plaintiff’s remaining contentions are without merit. Prudenti, P.J., Ritter, H. Miller and Spolzino, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered November 17, 2003, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs health care providers established a prima facie entitlement to summary judgment by proof that they submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in [*2]furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group
of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.

Plaintiffs’ remaining contentions lack merit.
Decision Date: November 19, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered on November 3, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day claim determination period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of plaintiff’s claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an [*2]insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: November 19, 2004

—[*1]

In an action to recover unpaid benefits due under the no-fault provisions of the Insurance Law, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated December 11, 2003, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The plaintiff did not sustain its prima facie burden in this case, as its submissions in support of its motion for summary judgment unequivocally demonstrated that it received payments on behalf of both of the insureds to whom it rendered medical treatment. Accordingly, the plaintiff’s papers failed to eliminate triable issues of fact regarding whether the claims at issue were the subjects of previous billings by the plaintiff which were resolved, and whether the current requests for no-fault payments constituted a resubmission of claims to which the rule of Insurance Law § 5106 (a) requiring payment or denial of claims within 30 days of receipt would not apply (see generally Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). In light of the foregoing, we [*2]need not examine the adequacy of the defendant’s papers in opposition to the motion. Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by petitioner from an order of the Civil Court, Queens County (A. Agate, J.), entered August 4, 2003, denying its petition to vacate an arbitrator’s award.

Order unanimously reversed without costs, petition granted, arbitrator’s award vacated and matter remanded for arbitration.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner State Farm Mutual Automobile Insurance Company (State Farm) filed a demand for arbitration in April 2002 seeking reimbursement of no-fault payments it made to its subrogor commencing in May 1999. Arbitration Forums, Inc. denied the claim on the ground that the three year statute of limitations had expired. State Farm commenced a special proceeding to vacate the arbitrator’s award. The court below denied the petition, finding that petitioner “did not specify the dates of the payments to the claimant or include any documentary proof. Rather, [petitioner] attached its demand for arbitration and the decision, neither of which indicate the dates of the initial payments.”

Contrary to the determination of the court below, we find that petitioner submitted documentary proof as to the payments it made to its subrogor by its submission of the affidavit of its claims representative, as well as the other documents included in Exhibit D which was attached to its petition (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1968]). We [*2]further find that the arbitrator’s award dismissing the claim as barred by the statute of limitations was not based on the evidence, and it was arbitrary and capricious for the arbitrator to dismiss the claim since petitioner timely made its demand for arbitration within three years of its first no-fault payment (see CPLR 214 [2]; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 219-220 [1996]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Empire Ins. Co. v Eagle Ins. Co., 4 Misc 3d 25 [2004] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898 [U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the petition seeking to vacate the arbitrator’s award is granted and the matter is remanded for arbitration.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
Decision Date: October 27, 2004

—[*1]

In an action pursuant to Insurance Law § 5106, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated December 15, 2003, as denied its motion for summary judgment on the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

On March 11, 2003, and March 18, 2003, respectively, the plaintiff submitted two claims to the defendant to recover no-fault medical payments. On or about April 14, 2003, the defendant responded with a standard denial of claim which failed, inter alia, to supply the information listed in items 23 through 30 of the prescribed form, including the name of the health services provider, the date and amount of the claims being denied, and the date it received those claims. Subsequent correspondence dated June 13, 2003, from the defendant’s claim representative to the plaintiff supplied most of the previously-omitted information. The plaintiff then commenced this action against the defendant seeking payment of both claims, and moved for summary judgment on the ground that the April 14, 2003, denial of claim was fatally defective. The Supreme Court denied the motion and the plaintiff appeals.

Pursuant to 11 NYCRR 65-3.8 (c), the defendant was required either to pay or deny [*2]the plaintiff’s claims “[w]ithin 30 calendar days after proof of claim [was] received.” A proper denial of claim must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; accord Halali v Evanston Ins. Co., 8 AD3d 431 [2004]; Hereford Ins. Co. v Mohammod, 7 AD3d 490 [2004]). “An insurer which fails to properly deny a claim within 30 days as required by these statutory provisions may be precluded from interposing a defense to the plaintiff’s lawsuit” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]; see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 283 [1997] [hereinafter Presbyterian I]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v Empire Ins. Co., 286 AD2d 322 [2001]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996] [hereinafter Presbyterian II]). Moreover, “[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]).

Applying these principles, we find that the defendant’s April 14, 2003, denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form (see 11 NYCRR 65-3.4 [c] [11]; Presbyterian II, supra; Amaze Med. Supply v Allstate Ins. Co., supra). The defendant’s contention that it supplied the missing information on June 13, 2003, is without merit, as the defective claim form could not be corrected, nunc pro tunc, through information supplied after the regulatory 30-day period expired. Indeed, the statutory goal of ensuring the prompt payment or denial of claims would be materially frustrated if insurers were permitted to file timely but factually defective denial of claim forms, to be supplemented only after the expiration of the 30-day period prescribed by 11 NYCRR 65-3.8. Under these circumstances, the remedy of preclusion was appropriate, and the plaintiff’s motion should have been granted (cf. Presbyterian I, supra at 283-284). Florio, J.P., Smith, Rivera and Fisher, 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 (J. Sullivan, J.), entered on December 2, 2002, which denied its motion for summary judgment.

Order unanimously affirmed without costs.
In this action to recover assigned no-fault benefits, defendant’s submissions in opposition to plaintiff’s motion for summary judgment consisting of, inter alia, the affidavit of its special investigator supported by examinations under oath taken of [*2]
plaintiff’s assignor and other persons involved in the accident, are sufficient to raise a triable issue of fact as to whether the collision was part of a fraudulent insurance scheme. Accordingly, plaintiff’s motion for summary judgment was properly denied.
Decision Date: October 21, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered on September 8, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

Plaintiff, a health care provider, established its prima facie entitlement to summary judgment on its claim for first-party no-fault benefits for services rendered to its assignor by evidence of submission of a complete proof of claim, its receipt
by defendant, and defendant’s failure to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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]). Defendant’s requests for examinations under oath did not toll the 30-day period, since the insurance [*2]regulations in effect at the time plaintiff’s claims were submitted did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

While defendant is thus precluded from asserting most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), it
is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary judgment was properly denied.
Decision Date: October 20, 2004