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 District Court, Nassau County (H. Miller, J.), dated May 9, 2003, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded for the calculation of statutory interest and an assessment of attorney’s fees.

In this action seeking assigned first-party no-fault benefits, plaintiff health service provider established a prima facie entitlement to summary judgment by the submission of proper proof of the claim and the amount of the loss (see Insurance Law § 5106 [a]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Defendant has failed to raise any triable
issues of fact. Defendant acknowledges receiving plaintiff’s proof of claim on August 15, 2001, and did not send its denial of the claim until November 17, 2001, well beyond the 30-day period within which it was required to pay or deny the claim (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not serve to toll the 30-day period, since the applicable insurance regulation did not contain provisions requiring a claimant to submit to examinations under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Servs. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]). Accordingly, plaintiff’s motion for summary judgment should have been granted (see King’s Med. Supply, Inc. v Progressive Ins., Co., 2004 NY Slip 50311 [U] [App [*2]Term, 2nd & 11th Jud Dists]), and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 28, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 26, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Teresa M. Spina, Woodbury (Steven A. Giampaolo of counsel), for respondent.

{**4 Misc 3d at 96} 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.

Plaintiff commenced this action to recover $1,606.87 in first-party no-fault benefits, as well as statutory interest and attorney’s fees, for medical services rendered to its assignor, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered May 14, 2003.

Contrary to the determination of the court below, we find that the affidavit of plaintiff’s billing manager, though imprecisely worded, sufficed to establish its cause of action prima facie (CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; 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]). Moreover, the billing manager was not required to have personal medical knowledge to establish the medical necessity of the claim inasmuch as a prima facie showing of entitlement to summary judgment is established in the first instance by the submission of a properly completed claim form (see Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., supra; Amaze [*2]Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Consequently, the burden 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’s denial was made within 30 days of its receipt of the claim (see Insurance Law § 5106 [a]). However, inasmuch as the peer review, upon which the denial is based, concludes that there was no medical necessity due to the lack of sufficient information upon which the reviewer could make such a determination, we find that the denial did not “fully and explicitly” set forth the reasons therefor (section 31 of the NF-10 form), did not inform plaintiff of defendant’s position regarding the disputed matter, and, thus,{**4 Misc 3d at 97} did not set forth a factual basis and medical rationale sufficient to establish the absence of medical necessity (see Amaze Med. Supply v Eagle Ins. Co., supra). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply v Eagle Ins. Co., supra).

In view of the foregoing, plaintiff is granted summary judgment in the amount of $1,606.87, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated pursuant thereto.

McCabe, P.J., Rudolph and Angiolillo, 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 (D. Silber, J.),

entered May 14, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion was denied by order of the court below.

In support of their motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are two distinct plaintiffs in this matter which have different business addresses. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [*2][App Term, 9th & 10th Jud Dists]).

Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to summary judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004

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 (P. Sweeney, J.), entered January 13, 2003, as denied its motion for

summary judgment.

Order insofar as appealed from 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, plaintiff moved for summary judgment. In its moving papers, plaintiff argued that because
the defendant failed to timely deny its claim within the statutory 30-day period, it
was entitled to summary judgment as a matter of law. In order to establish a
prima facie entitlement to summary judgment, plaintiff was required to show that it
submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v
Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The presumption that an addressee received an item by mail may be created by either
proof of actual mailing or proof of a standard office practice or procedure designed
to ensure that items are properly addressed and mailed (see Residential Holding
Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Tracy v William Penn Life Ins. [*2]
Co. of N.Y., 234 AD2d 745 [1996]; Pardo v Central Coop. Ins. Co., 223 AD2d 832 [1996]). Plaintiff attached to its moving papers a signed post office ledger with defendant’s name which was date-stamped September 18, 2001. In addition, in his affidavit in support of plaintiff’s motion, Mr. Bronsteyn (plaintiff’s president) stated
that plaintiff mailed the bills to defendant on September 18, 2001. Thus, plaintiff
made out a prima facie case of its entitlement to summary judgment thereby
shifting the burden to the defendant to come forward with a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In support of defendant’s motion for summary judgment and in
opposition to plaintiff’s motion, defendant’s attorney merely argued that defendant’s denial letter was timely since it was dated November 7, 2001 and stated therein
that defendant received plaintiff’s claim on October 18, 2001. Since defendant’s attorney lacked personal knowledge of the underlying facts, and defendant’s
business records and standard office practices regarding mailings, his affirmation
was of no probative value (see Barton v County of Monroe, 92 AD2d 746 [1983]). Inasmuch as defendant failed to establish that a triable issue of fact exists, the
lower court should have granted plaintiff’s motion for summary judgment. 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.
Decision Date: May 20, 2004

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 (A. Fisher Rubin, J.), entered February 25, 2003, denying their motion for partial summary judgment in the sum of $11,420.05.

Order unanimously affirmed without costs.

In or about June 2002, plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney’s fees, for health services provided
to their assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved
for partial summary judgment in the amount of $11,420.05, which was comprised of $8,144.25 worth of claims (consisting of 12 bills), $3,210.80 worth of claims (consisting
of 9 bills), and a $65 claim. Defendant opposed the motion and by order entered
February 25, 2003, the court below denied said motion.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the billing manager for “plaintiff.” The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, [*2]
Safir’s affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, March 18, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th
Jud Dists]).
Decision Date: May 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, May 4, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for appellant. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

{**4 Misc 3d at 26} OPINION OF THE COURT

Memorandum.

Order modified by providing that the petition is granted insofar as it sought to vacate the arbitrator’s award and matter remanded for arbitration before a different arbitrator; as so modified, affirmed with $10 costs.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner Empire Insurance Company filed a demand for arbitration on June 25, 1998, seeking reimbursement of no-fault payments it made to its subrogor from October 1995 through November 1996. Arbitration Forums, Inc. denied the claim on the ground that the statute of limitations had expired. Petitioner commenced a special proceeding to vacate said award, and by order entered in April 1999, the court below granted the petition and remanded the matter for a new hearing. Following the hearing, Arbitration Forums, Inc. again denied the claim on the aforementioned statute of limitations ground. Petitioner then commenced a second special proceeding to vacate the arbitrator’s award, and by order entered in May 2000, the court below [*2]granted the petition and remanded the matter for a new hearing. After said hearing, Arbitration Forums, Inc. again denied the claim, by award dated July 9, 2002, on the aforementioned statute of limitations ground. Petitioner then commenced the instant third special proceeding to vacate the arbitrator’s award. By order entered in November 2002, the court denied the petition finding that it was not based on one of the limited grounds upon which such an award may be vacated pursuant to CPLR 7511 and that the arbitrator applied the correct statute of limitations (citing Nationwide Mut. Ins. Co. v Schwartz, 172 Misc 2d 503 [1997]). The court thereupon, sua sponte, vacated its May 2000 order.

In Matter of Motor Veh. Acc. Indem. Corp. {**4 Misc 3d at 27}v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996]), the Court of Appeals determined that stricter scrutiny is required, and the arbitrary and capricious standard is applicable, if arbitration is compulsory pursuant to a statutory mandate (id. at 223). To the extent that the Appellate Division, Fourth Department case, Matter of Allstate Ins. Co. (Clarendon Natl. Ins. Co.) (259 AD2d 971 [1999]), is inconsistent with the Court of Appeals holding in Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., it is not controlling. Furthermore, the court’s reliance on Nationwide is misplaced inasmuch as the court therein specifically stated that its decision was distinguishable from Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. which, like the case at bar, involved statutorily created obligations and rights, whereas Nationwide was in the nature of a common-law subrogation. Consequently, we 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 Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 219-220, supra; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Matter of Allcity Ins. Co. v GEICO-Government Empls. Ins. Co., 2003 NY Slip Op 50898[U]).

Accordingly, the petition seeking to vacate the July 2002 arbitrator’s award is granted and the matter is remanded for arbitration before a different arbitrator.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Golia, J., concurs in the following memorandum: In this concurring opinion, I wish to address the conduct of the respondent, respondent’s counsel and Arbitration Forums, Inc. for persisting in their defiance of this court’s prior ruling concerning this identical issue which has been previously specifically addressed (see Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003]).

Counsel for respondent as well as respondent (and indeed Arbitration Forums, Inc.) were fully aware of the herein decisions of the Civil Court (both Ritholtz and Kerrigan, JJ.) when they argued before the arbitrator, for the third time, that the petition should be dismissed on statute of limitations grounds, after the above two Civil Court decisions found the direct opposite. (I do, however, note the lower court’s [Kerrigan, J.] decision erroneously reversed itself after the third petition.) Nonetheless, they further disregarded a decision of the Civil Court when they attempted to circumvent that court’s ruling by applying directly to the Supreme Court for an order confirming the finding of the arbitrator rather than appealing the order of the Civil Court if they believed it was incorrect.

The willful and contumacious conduct, and the arrogance to the extreme of those mentioned above, warrant sanctions. Unfortunately, the appellant failed to preserve for review by the Appellate Term the application for sanctions on the grounds of “{**4 Misc 3d at 28}forum shopping.” If that issue had been preserved, I would recommend the imposition of such sanctions. That the respondent continues to raise the issue of the statute of limitations as a defense and that Arbitration Forums continues to make such decisions, previously found to be arbitrary and capricious, needs to be addressed. In addition, I would recommend in the strongest terms possible that the petitioner’s bar seek sanctions as against Arbitration Forums, Inc. and any counsel, staff or otherwise, that persists in consciously disregarding court rulings and continue to dismiss inter-company no-fault arbitrations on statute of limitations grounds based upon the demand for arbitration being made more than three years from the date of the accident even though it was less than three years from the date of the first no-fault payment.

I do not countenance the Appellate Term’s decisions or the decisions of the Civil Court being willfully ignored by a private arbitration company or counsel who appear before such forums.

Pesce, P.J., and Rios, J., concur; Golia, J., concurs in a separate memorandum.

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 (D. Waltrous, J.), entered on April 22, 2003, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiffs instituted suit to recover first-party no-fault benefits for chiropractic services they provided to the injured assignor in the sum of $2,603.36. In support of their motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are three distinct plaintiffs in this matter. Although A.B. Medical Services, PLLC and D.A,V.
Chiropractic P.C. have the same business address, Daniel Kim’s Acupuncture, P.C. has a different address. The affidavit does not indicate for which plaintiff she is the billing manager, and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, this affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), and thus the court correctly determined that plaintiffs failed to make out their prima facie entitlement to summary judgment.
Decision Date: April 27, 2004

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 (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,925, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff, a medical supply house, commenced this action to recover first-party no-fault benefits for medical equipment furnished its assignor. Plaintiff subsequently moved for
summary judgment on its two claims: one for $795 (submitted January 31, 2001) and the other for $1,220 (submitted March 1, 2001).

After plaintiff established a prima facie case for summary judgment by establishing that it submitted complete proofs of claim and the amount of the loss (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to the $795 claim, defendant conceded that it failed to timely pay or deny the claim within 30 days of the date plaintiff alleged that it should have been in receipt of the mailed claim [*2]forms (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]), but argued only that it never received the proof of claim. Upon its failure to rebut the presumption of receipt that arose upon plaintiff’s proof of proper mailing (e.g Kihl v Pfeffer, 94 NY2d 118 [1999]), summary judgment should have been granted as to said claim.

With respect to the second claim for $1,220, defendant argued only that its denial was both timely and proper because the assignor failed to cooperate with its verification request in the form of an examination under oath (EUO), as permitted by the Insurance Regulations then in effect and
required by the terms of the insurance policy. However, at the time plaintiff’s claims were filed, EUOs were not available as a form of verification. The provision requiring the injured person to appear for an EUO was not in effect until April 5, 2002 (see 11 NYCRR 65-3.5 [e]). The relevant Insurance Regulation in effect at the time of the plaintiff’s submission of the claims required the injured person to submit to an independent medical examination (IME), but contained no specific reference to an EUO (see 11 NYCRR 65.12). Since there was no provision authorizing such a procedure, defendant’s request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim. Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault endorsement, an “internally complete and . . . distinct part of the insurance policy, . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; see also A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

In light of the foregoing, plaintiff would normally be entitled to the granting of its motion for summary judgment in its entirety. It is noted, however, that the documents which plaintiff included as proof in support of its motion for summary judgment revealed that the medical
equipment prescribed for plaintiff’s assignor did not include the TENS belt ($90) which was listed in plaintiff’s claim as well as in the receipt of items delivered to plaintiff’s assignor. While defenses based on defects in the proof of claim are generally precluded if not timely asserted, plaintiff, having introduced an issue of fact which, if true, amounts to a complete defense to a portion of the claim, should be estopped from invoking the preclusion rules to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Accordingly, the compensation awarded to plaintiff should be reduced by the amount billed for the unprescribed item.

Thus, plaintiff’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $1,925. The matter is accordingly remanded to the court below for a calculation of the statutory interest on $1,925, that portion of the claim for which summary judgment is granted, an assessment of attorney’s fees due on $1,925 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 14, 2004