[*1]

Supreme Court, Appellate Term, Second Department, April 24, 2007

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Michael Theodorou of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

{**16 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and, upon searching the record, summary judgment granted in favor of defendant dismissing the action.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In an affirmation in support of the motion, plaintiff’s counsel stated that plaintiff billed defendant for 35 sessions of acupuncture with its licensed acupuncturist at a rate of $90 per session, for a total of $3,150. Defendant paid plaintiff for 35 sessions at a reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services, for a total of $1,025.50. Plaintiff sought full reimbursement, or the remaining $2,124.50, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated. Plaintiff’s counsel stated that the prevailing fee for acupuncture services performed by licensed acupuncturists in New York City was between $85 and $100 per session, and added that said amounts were warranted given the extensive training required in order to become a licensed acupuncturist. [*2]

Defendant, in opposition, showed that it timely mailed its claim denial forms, which partially denied plaintiff’s claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. An employee of its claims division, who was responsible, inter alia, for reviewing fee schedules, noted in her affidavit that, since the workers’ compensation fee schedule did not specifically address acupuncture services performed by a licensed acupuncturist{**16 Misc 3d at 25} who was neither a licensed physician nor a licensed chiropractor, defendant had reviewed the acupuncture fee schedules “already adopted or established by the superintendent” (i.e., for licensed physicians and licensed chiropractors), pursuant to the mandates of 11 NYCRR 68.5 (b), and had concluded that licensed acupuncturists should be reimbursed at a rate consistent with the amount established in the fee schedule for licensed chiropractors in the geographic region, or at $29.30 per session (as opposed to the amount established in the fee schedule for acupuncture services performed by a physician, which would have called for a payment of $42.84 per session for that geographic region). This conclusion was deemed by defendant to be “reasonable and appropriate, given a comparison of the New York State requirements regarding the educational level, experiential requirements and licensing requirements for medical doctors, chiropractors and individuals simply licensed to perform acupuncture.”

The court below granted plaintiff’s motion for summary judgment, and defendant appealed, contending that plaintiff had been properly reimbursed in accordance with the rates set forth in the existing fee schedules. At issue is the appropriate fee to be paid for acupuncture services rendered by a licensed acupuncturist.

Insurance Law § 5102 (a) (1) defines “basic economic loss” as including “[a]ll necessary expenses incurred for . . . professional health services” subject to the limitations of Insurance Law § 5108. The latter statute limits the amounts to be charged by providers of health services, and states that the charges for services specified in Insurance Law § 5102 (a) (1) “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . . except where the insurer . . . determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). The statute also authorizes the Superintendent of Insurance to “promulgate rules and regulations implementing and coordinating the provisions of” the No-Fault Law and the Workers’ Compensation Law with respect to charges for the professional health services specified in Insurance Law § 5102 (a) (1), “including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workers’ compensation board” (Insurance Law § 5108 [b]).

Part 68 (also known as Regulation 83) of the New York Insurance Department Regulations (11 NYCRR) governs the charges{**16 Misc 3d at 26} for professional health services. The regulations provide that the “existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board . . . are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law” (11 NYCRR 68.1 [a]). The fee schedules for professional health services referred to in Insurance Law § 5102 (a) (1), for which schedules have not been prepared and established by the Workers’ Compensation Board, may be [*3]established by the Superintendent, and are made part of Appendix 17-C of the regulations (11 NYCRR 68.2). Appendix 17-C does not contain a fee schedule for acupuncture services performed by a licensed acupuncturist.

The New York State Department of Insurance has stated that medically necessary acupuncture services rendered by a licensed acupuncturist are covered expenses, and are eligible for reimbursement under Insurance Law § 5102 (a) (1) (see Ops Gen Counsel NY Ins Dept No. 04-01-01). Where, as here, a professional health service has been performed which is reimbursable under Insurance Law § 5102 (a) (1), but such service is performed by a provider which is not included in the fee schedules established by the Workers’ Compensation Board, and if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

The Department of Insurance has also concluded that while a licensed acupuncturist may bill an insurer for services rendered based upon the prevailing rate charged by other licensed acupuncturists in the same geographic area, “such billed fees may be reduced by insurers to those fees established in existing fee schedules for similar procedures reimbursable at fee rates in existing fee schedules, pursuant to section 68.5 (b) in Department Regulation 83” (see Ops Gen Counsel NY Ins Dept No. 04-10-03). The Department has specifically stated that it is:

“reasonable and appropriate, as well as consistent with the intent of Section 68.5 (b), for an insurer to reduce a prevailing regional rate when there is an established fee for similar services. . . . [W]ere a{**16 Misc 3d at 27} No-Fault insurer to review and equate services provided by a licensed acupuncturist as similar to acupuncture services provided by doctors or chiropractors, and such rate is less than the prevailing regional fee rate, it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary{**16 Misc 3d at 28} services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service.” (Ops Gen Counsel NY Ins Dept No. 04-10-03.)

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (Insurance Law § 301), who has “broad power to interpret, clarify, and implement the legislative policy” (Ostrer v Schenck, 41 NY2d 782, 785 [1977] [internal quotation marks omitted]). It is a well-established principle of law that the Superintendent’s interpretation of its regulations, “if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; Matter of Medical Socy. of State of N.Y. v Serio, 100 [*4]NY2d 854, 864 [2003]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We are in agreement with defendant that the lower court erred in granting plaintiff’s motion for summary judgment. In support of its motion for summary judgment, plaintiff argued, in a conclusory affirmation of counsel, in anticipation of defendant’s position in opposition to the motion, that a licensed acupuncturist should receive a higher rate of reimbursement than the scheduled fee for acupuncture services rendered by a physician or a chiropractor because of the acupuncturist’s extensive training in the area. Significantly, plaintiff did not argue that the services performed by its licensed acupuncturist were dissimilar from acupuncture services listed for a physician or for a chiropractor provider on the established fee schedules, and that it was therefore entitled to a different reimbursement rate.

In opposition to the motion, defendant argued that it was following the guidelines of the Department of Insurance which authorized the insurer “to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service” (Ops Gen Counsel NY Ins Dept No. 04-10-03), that it had reviewed the amounts charged by plaintiff “for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent,” and that, based upon a comparison of the training and experience of licensed acupuncturists, physicians and chiropractors who perform acupuncture services, it was reducing the fee for the acupuncture services provided by plaintiff to the rates already adopted or established for chiropractors performing a similar service, in accordance with the provisions of 11 NYCRR 68.5 (b). We note that even though the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians, the Department of Insurance did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware of this differential (see Ops Gen Counsel NY Ins Dept 04-10-03).

Plaintiff’s sole ground for summary judgment, i.e., that its rate of reimbursement should exceed the amounts prescribed in the fee schedules for both physicians and chiropractors because of the extensive training and experience required to become a licensed acupuncturist, has therefore been rejected by the Department of Insurance, which limited the fee for licensed acupuncturists to either one or the other. In view of the fact that there has been a lack of clarity regarding the appropriate fee schedule to apply for acupuncture services rendered by licensed acupuncturists, and since there has been increasing litigation on the issue, we strongly urge the Superintendent of Insurance to consider adopting a separate fee schedule for health services rendered by licensed acupuncturists. However, in the absence of same, upon the record presented, we apply the chiropractor fee schedule to the instant services. While physicians who practice acupuncture need only obtain certification in order to perform acupuncture (see Education Law § 8216; 8 NYCRR 60.9), chiropractors who practice acupuncture must be licensed to do so (see Education Law § 8214). Thus, licensed acupuncturists and chiropractors who wish to practice acupuncture are subject to similar training and educational requirements.

Under the circumstances presented herein, since it is undisputed that defendant has fully [*5]paid plaintiff the amounts{**16 Misc 3d at 29} to which it is entitled under the fee schedules for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, the action is dismissed.

We note that inasmuch as plaintiff’s constitutional arguments were not raised in the court of first instance, they were not preserved for appellate review, and we therefore decline to reach them (see Giordano v O’Neill, 131 AD2d 722 [1987]).

Rios, J. (concurring in part and dissenting in part in the following memorandum). Although I am in agreement with the majority that the judgment should be reversed, the order granting plaintiff’s motion for summary judgment vacated, and plaintiff’s motion for summary judgment denied, in my opinion, we should not search the record to grant summary judgment in favor of defendant dismissing the action. Rather, the matter should be remanded for a trial on developed facts as to which specific services were provided by plaintiff to its assignor. While it is true that workers’ compensation fee schedules have been established for acupuncture services performed by a chiropractor, the record is silent as to whether the subject billing refers to treatment which is usually rendered by a chiropractor within the scope of his or her chiropractic license (see Education Law § 6551), or whether the billed services are for treatment for which a license as an acupuncturist is needed (see Education Law § 8214), in which event, the procedures performed by plaintiff’s acupuncturist would be sufficiently dissimilar from those rendered by a chiropractor that the fee schedules established for chiropractors should not be invoked.

Weston Patterson, J.P., and Belen, J., concur; Rios, J., concurs in part and dissents in part in a separate memorandum.

Supreme Court, Queens County

13956 2006

Duane A. Hart, J.

Plaintiff allegedly was injured in a motor vehicle accident in New York on March 17, 2006, while a passenger in a vehicle owned and operated by Silvanous Parchment. Defendant issued an insurance policy in Florida to Parchment, who purportedly was a resident of Florida, for that vehicle, which was registered in Florida. [*2]

On April 13, 2006, plaintiff submitted a claim for no-fault benefits to defendant insurer. On June 15, 2006, defendant insurer denied said claim on the ground that the policy was revoked for material misrepresentation.

In this action by plaintiff, among other things, for judgment declaring her rights under the policy, plaintiff moves for summary judgment determining that she is eligible for no-fault benefits and that defendant’s denial of such benefits was untimely. Defendant cross-moves for summary judgment on the ground that plaintiff’s injuries did not arise from a covered accident.

Defendant cancelled the policy on June 7, 2006, after it discovered Parchment made a material misrepresentation on the insurance application. The material misrepresentation was that Parchment resided and garaged his vehicle in Florida. An investigation by defendant after the subject accident revealed that Parchment resided and garaged his vehicle in New York.

Florida law allows for the retroactive cancellation of an insurance policy, where, as in this case, a material misrepresentation is contained within the insurance application. (See Penaranda v Progressive American Insurance Co., 747 So.2d 953 [Fla. 1999].) New York law does not allow retroactive cancellation. (See Vehicle and Traffic Law § 313; see also Matter of Insurance Co. of North America v Kaplun, 274 AD2d 293 [2000]; Olivio v Government Employees Insurance Co. of Washington, D.C., 46 AD2d 437 [1975].) There is no dispute that there is a conflict between the law of New York and the law of Florida. This conflict of law relating to an insurance policy must be resolved by application of the conflict of law rules relevant to contracts. (See Matter of Integon Insurance Co. v Garcia, 281 AD2d 480 [2001].) The courts apply the “center of gravity” or “grouping of contacts” inquiry to determine which State has the most significant contacts to the dispute. (See Matter of Eagle Insurance Co. v Singletary, 279 AD2d 56 [2000].) Significant contacts in a case involving a contract, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract and the domicile or place of business of the contracting parties. (See Zurich Insurance Co. v Shearson Lehman Hutton, Inc., 84 NY2d 309 [1994]; see also Matter of Integon Insurance Co. v Garcia, supra; Matter of Eagle Insurance Co. v Singletary, supra.)

Applying the grouping of contacts inquiry to the facts here, the State of Florida has the most significant contacts with the parties and the contract. Defendant issued its insurance policy to Parchment in Florida, who purportedly was a resident of Florida, [*3]for a vehicle registered in Florida, which terms incorporated Florida law. The only connection between the policy and New York is that Parchment was driving the vehicle in New York at the time of the accident. Thus, Florida law is controlling under New York’s conflict of law rules. Moreover, Florida’s significant contacts with the subject contract and legitimate governmental interest in protecting its honest policyholders from bearing the burden of paying claims incurred by dishonest policyholders outweighs New York’s governmental interest in protecting innocent third parties from being deprived of insurance coverage, especially since New York statutes provide the means to ensure compensation to persons injured due to the fault of uninsured motorists within the state by requiring New York policyholders to purchase uninsured motorist coverage (see Insurance Law § 3420[f]) and establishing and providing insurance through the Motor Vehicle Accident Indemnification Corp. (See Insurance Law § 5201 et seq.)

Applying Florida law, defendant’s retroactive cancellation of the insurance policy due to Parchment’s material misrepresentation in his application for insurance was valid. Since the subject policy was void ab initio, defendant’s denial of plaintiff’s no-fault claim was proper. In addition, the timeliness of defendant’s denial of plaintiff’s no-fault claim is irrelevant as the denial was based upon lack of coverage. (See Central General Hospital v Chubb Group of Insurance Cos., 90 NY2d 195 [1997].)

Accordingly, it is ORDERED AND ADJUDGED that plaintiff’s motion for summary judgment and attorney’s fees is denied and defendant’s cross motion for summary judgment dismissing plaintiff’s complaint is granted; and it is further

ADJUDGED AND DECLARED that defendant is not obligated to provide “no-fault” coverage to plaintiff.

Dated: April 11, 2007J.S.C.

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn, for respondent.

{**15 Misc 3d at 111} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied without prejudice to renewal upon completion of discovery, and defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant’s demand for written interrogatories and, within 30 days after service of such responses, to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant served opposing papers and subsequently moved to dismiss the complaint based on plaintiff’s failure to respond to discovery demands or, in the alternative, for an order compelling plaintiff to comply with its discovery demands. The court granted plaintiff’s motion and denied defendant’s motion. The instant appeal by defendant ensued. [*2]

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of ‘basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed is a nonwaivable defense (see First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; see also Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d Dept 2006]). Defendant’s opposition papers suffice to raise issues as to who really operated and controlled plaintiff (see Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d Dept 2006]). Since{**15 Misc 3d at 112} the opposition papers set forth that facts essential to justify opposition may exist but cannot be stated (see CPLR 3212 [f]), plaintiff’s motion for summary judgment should have been denied without prejudice to renewal upon the completion of discovery.

With respect to defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery, plaintiff failed to oppose said motion. Accordingly, defendant’s motion should have been granted to the extent of compelling plaintiff to serve responses to defendant’s demand for written interrogatories and to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

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

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

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

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment predicated on the lack of coverage, i.e., that the assignor’s injuries, if any, did not arise from the underlying traffic incident, and, if they did, the incident was staged to defraud defendant. After the court (Norman Janowitz, J.) denied defendant’s motion, plaintiff then moved for summary judgment, which defendant opposed essentially on the same proof of fraud submitted in support of its own motion. The court (Erica L. Prager, J.) declined to review defendant’s proof of fraud on the ground that the prior determination, that the proof did not support defendant’s motion, was the law of the case. The court granted plaintiff’s motion and this appeal ensued.

Contrary to the determination of the court below, the prior order which denied defendant’s motion for summary judgment did not bar reconsideration of defendant’s proof of fraud in opposition to plaintiff’s motion, since the quantum of proof needed to obtain summary judgment is higher than that necessary to establish a triable issue of material fact in opposition to such a motion (e.g. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Stone v Goodson, 8 NY2d 8, 12 [1960]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]). [*2]

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or 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]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit of defendant’s special investigator and the attached exhibits failed to substantiate the investigator’s conclusory allegations of the insured’s participation in a “ring” that stages traffic incidents to defraud insurers (see Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [2005], supra). In addition, the discrepancies in the testimony{**15 Misc 3d at 99} given by two passengers during their examinations under oath were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]).

We note that the insured had no obligation to appear for an examination under oath because “at the applicable time, the insurance regulations contained no authorization for examinations under oath” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1 [App Term, 2d & 11th Jud Dists 2004]). In such circumstances, the mere failure to appear for such an examination does not support an inference of “the fact or founded belief” that the underlying incident was staged to defraud.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, March 16, 2007

APPEARANCES OF COUNSEL

Friedman, Harfenist, Langer & Kraut, Lake Success (Neil Torczyner of counsel), for appellant.

{**16 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action as premature due to outstanding requests for verification. The court granted defendant’s cross motion and this appeal by plaintiff ensued.

After receiving the claim, defendant issued a letter to the prescribing physician requesting verification of the medical necessity of the MRI performed at plaintiff’s facility and detailing the information sought. On the same day, defendant advised plaintiff by letter that the claim’s determination would be delayed pending receipt of medical necessity verification from the prescribing physician. The initial verification request remained unsatisfied after 30 days, whereupon defendant followed up its request to the prescribing physician and sent plaintiff a copy of the request and a second letter, nearly identical to the first, to the effect that a decision on [*2]the claim was being delayed pending medical necessity verification. Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. Contrary to plaintiff’s contention, the record establishes that the letters sent by defendant sufficed to toll the statutory claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.2 [c]; 65-3.5 [a], [c]; 65-3.6 [b]).

The insurance regulations require that there be “good reasons” to demand verification (11 NYCRR 65-3.2 [c]), that the demand be directed “as expeditiously as possible” (id.) to the “parties required to complete them” (11 NYCRR 65-3.5 [a]), and that the insurer is entitled to receive the verification “directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]). We do not construe the reference to “parties” to be limited to an applicant for no-fault benefits. By its terms, 11 NYCRR 65-3.6 (b) requires the insurer to inform the “applicant” of the nature of previously requested and unproduced verification, the identity of “the party from whom it was requested,” and that the request is renewed. The provisions clearly contemplate that an applicant may not be the only appropriate “party” from whom, for example, medical necessity verification may most readily be obtained (e.g. a medical{**16 Misc 3d at 44} equipment provider who fills a prescription or, as here, an MRI facility acting upon an outside physician’s referral). Where verification is sought from a party other than the applicant, the applicant is entitled to be timely informed of the nature of the verification sought and from whom it is requested when, after an initial verification request remains unsatisfied, a follow-up request is necessary (see 11 NYCRR 65-3.6 [b]). As the claims of providers, such as MRI facilities, are subject to the medical necessity defense (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2d Dept 2007]) notwithstanding that they may neither be responsible for the medical necessity determination nor, in the case of a nonphysician provider, competent to make such a determination, permitting verification requests of nonapplicants upon proper notification to the applicants furthers the regulatory objective that verification proceed “as expeditiously as possible” and assists applicants to determine the propriety of verification demands, to monitor the insurer’s exercise of the verification procedures and to facilitate the timely production of the verification. Accordingly, because defendant established that the instant verification requests remain unsatisfied, the action is premature and was properly dismissed (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

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

[*1]

Supreme Court, Appellate Term, Second Department, June 4, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

{**16 Misc 3d at 21} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, inter alia, on the ground that defendant’s NF-10 denial of claim form, which alleged the lack of medical necessity, failed to assert sufficient facts and a medical rationale based thereon to set forth, with the requisite specificity, a proper ground for the denial. The court denied the motion, finding the denial form’s reference to a negative peer review report sufficient to apprise plaintiff of the basis of its determination that the medical services provided were medically unnecessary. Plaintiff appeals, and we affirm (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2d Dept 2007]). To the extent that A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) and related cases are to the contrary, they should no longer be followed (see 11 NYCRR 65-3.8 [b] [4]).

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

[*1]

Supreme Court, Appellate Term, Second Department, February 27, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Anthony J. Centone, P.C., White Plains, for respondent.

{**15 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). Defendant’s opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff [*2]was therefore entitled to summary judgment.

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.

Weston Patterson, J. (dissenting and voting to affirm the order in the following memorandum). I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a{**15 Misc 3d at 35} matter of law. In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer Charles DeMarco. Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed. Instead, the affidavit alleges that the “attached are my corporate business records for billing and are true copies of the no-fault claim.” In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50023[U] [App Term, 2d & 11th Jud Dists 2007]).

The fact that defendant raised no issue below or on appeal with respect to plaintiff’s prima facie showing is irrelevant. A movant’s failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

Pesce, P.J., and Belen, J., concur; Weston Patterson, J., dissents in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, February 6, 2007

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata, & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**15 Misc 3d at 14} OPINION OF THE COURT

Memorandum.

Order reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). Plaintiff opposed the motion, arguing, inter alia, that defendant failed to adequately prove mailing of the IME requests. Although the court below found that defendant offered sufficient proof of having mailed timely IME requests and follow-up requests, it denied defendant’s motion on the ground that there was an issue of fact as to the reason for plaintiff’s assignor’s nonappearances. This appeal by defendant ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 722 [2d Dept 2006]), the Appellate Division held that “[t]he appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy,” and that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the “eligible injured person . . . [to] submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Defendant contends that it was entitled to summary judgment dismissing the action [*2]because the affidavits which it submitted in support of its motion established that it sent a timely IME request and follow-up request to plaintiff’s assignor, and that plaintiff’s assignor failed to appear for the IMEs. Plaintiff argues that defendant was not entitled to summary judgment because, among other things, the affidavits submitted by defendant were insufficient to demonstrate timely mailing of said IME requests.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]). Since plaintiff raised no issue as to the sufficiency of defendant’s proof of plaintiff’s assignor’s{**15 Misc 3d at 15} nonappearance at the IMEs, we do not pass on the propriety of the motion court’s determination with respect thereto. To the extent that the court below concluded that there was a question of fact regarding the reason for plaintiff’s assignor’s nonappearance at the IMEs, we note that there is no support in the record for such finding. Accordingly, defendant was entitled to summary judgment dismissing the complaint.

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

[*1]

Supreme Court, Appellate Term, Second Department, January 3, 2007

APPEARANCES OF COUNSEL

Saiber Schlesinger Satz & Goldstein, LLC, New York City (Agnes I. Rymer and David J. D’Aloia of counsel), and McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman P.C., Brooklyn, for respondent. Eliot Spitzer, Attorney General, New York City (Robert H. Easton and Benjamin N. Gutman of counsel), for Howard B. Mills III, amicus curiae. Michael A. Taromina, Paterson, New Jersey, for Acupuncture Society of New York, amicus curiae.

{**15 Misc 3d at 105} OPINION OF THE COURT

Memorandum.

Order reversed without costs and matter remanded to the court below for a new calculation of interest in accordance with the decision herein.

In this action to recover overdue assigned first-party no-fault benefits, the parties stipulated to settle the principal amount owed on all claims for which defendant’s denials were timely and for which defendant issued no denials, as well as the statutory interest and attorney’s fees due thereon. Unable to agree on the date interest accrued on the claims for which defendant issued untimely denials, the parties stipulated to submit the question to the court below. The plaintiff sought interest from 30 days after the claims’ submission, while defendant insisted that interest accrued only from the date plaintiff commenced the action. The court found for plaintiff and defendant appeals.

An insurer is obligated to “pay or deny” a claim within 30 calendar days of the receipt of [*2]proof of claim (11 NYCRR 65-3.8 [c]).^[FN*] Interest accrues when the payment of no-fault benefits is “overdue” (11 NYCRR 65-3.9 [a]), and benefits are overdue only if not “paid” within 30 calendar days of when the insurer receives a claim or verification (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]; e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see generally 70A NY Jur 2d, Insurance § 1801). The effect of a denial on interest is set forth in 11 NYCRR 65-3.9 (c) which{**15 Misc 3d at 106} states that an “applicant” must request arbitration or commence an action “within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations” and bars interest “until such action is taken.”

“[I]nterest . . . [is a] prescribed sanction[ ] only in late payment circumstances, not as to untimely denials of claims” (Presbyterian Hosp. in City of N.Y., 90 NY2d at 278; see Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339 [1994]). Where, as here, there is no payment and an untimely denial, interest accrues 30 days from the date the claim is submitted (11 NYCRR 65-3.8 [a] [1]; 65-3.9 [a]; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). Interest is thereafter stayed only where the claimant fails to submit the claim to arbitration or to commence an action within 30 days after receipt of the untimely denial of claim and resumes when either action is taken (11 NYCRR 65-3.9 [c]; Massapequa Gen. Hosp. v Travelers Ins. Co., 104 AD2d 638, 640 [1984]; State Farm Mut. Auto. Ins. Co. v Pfeiffer, 95 AD2d 806 [1983]).

Noting that 11 NYCRR 65-3.9 (a) addresses both “applicant” and “assignee,” the court below construed the absence of a reference to an assignee in 11 NYCRR 65-3.9 (c) to manifest the intent of the Superintendent of Insurance to exclude assignees from the requirement that an “applicant” seek arbitration or commence an action within 30 days of the receipt of the denial of claim form or be barred from interest “until such action is taken.” However, in an amicus brief, the Superintendent states that in promulgating 11 NYCRR 65-3.9 (c), the Department of Insurance had no intent to distinguish eligible injured persons from their assignees when it provided that interest on denied claims is tolled until the “applicant” seeks arbitration or commences an action, notwithstanding what it characterizes as a “redundant” reference to assignees in 11 NYCRR 65-3.9 (a). “In matters of statutory and regulatory interpretation . . . legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]” (Matter of ATM One v Landaverde, 2 NY3d 472, 476-477 [2004] [internal quotation marks omitted]). As the Legislature granted the Superintendent “broad power to interpret, clarify, and implement the legislative policy” in the no-fault arena (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003] [internal quotation marks omitted]; see Insurance Law §§ 301, 5103 [d]; § 5106 [a]; § 5108 [b]),{**15 Misc 3d at 107} when the Superintendent “properly craft[s] a rule within the scope of his [or her] authority, that rule has the force of law and represents the policy choice of this State” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]). Further, an agency’s interpretation of a regulation it promulgated “is entitled to deference” (Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337, 342 [2004] [internal quotation marks omitted]). Accordingly, [*3]deference must be accorded the Superintendent’s expression of intent herein with respect to the no-fault regulations, in light of the Superintendent’s “special competence and expertise with respect to the insurance industry” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 864 [internal quotation marks omitted]) unless, according to the normative rules of construction, the purported intent is “unreasonable or irrational” (Matter of Rodriguez v Perales, 86 NY2d 361, 367 [1995]) or so “conflicts with the plain meaning of the promulgated language” that the courts are obligated to disregard it (Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005]).

To the extent that an issue of regulatory construction is presented, in the first instance we must consider the text’s “plain meaning” (Matter of Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d 588, 589 [2005]). Plaintiff and, in an amicus brief, the Board of Advisers of the Acupuncture Society of New York, contend that the purported significance of the use of the terms “applicant” and “assignee” in 11 NYCRR 65-3.9 (a) and the use of only the term “applicant” in 11 NYCRR 65-3.9 (c) was intentional, invoking the rule of construction that the “failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended” (McKinney’s Cons Laws of NY, Book 1, Statutes § 74). However, it is also well settled that “a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other” (Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 464 [2004] [internal quotation marks omitted]) and “are to be so interpreted as to give effect to every part thereof . . . and any construction which deprives any part of a statute of effect and meaning, when it is susceptible of another interpretation giving effect to every part, is avoided” (McKinney’s Cons Laws of NY, Book 1, Statutes § 231, Comment). The aforementioned rule applies equally to the construction of regulations.{**15 Misc 3d at 108}

A review of the use of “applicant,” “eligible injured person” and “assignee” in the no-fault regulations reveals that, while they are often employed interchangeably and occasionally redundantly, context invariably yields content. Many regulations refer to “applicant” generically, where eligible injured persons and their provider-assignees are clearly meant (e.g. 11 NYCRR 65-3.2 [b]; 65-3.3 [a]; 65-3.8 [b]; 65-4.2 [b] [1] [i]). Other regulations refer to “applicant” when only an eligible injured person can be meant (11 NYCRR 65-3.8 [g]), and still others address, variously, an “eligible injured person or such person’s attorney” (11 NYCRR 65-3.6 [a]) and an “applicant and such person’s attorney” (11 NYCRR 65-3.6 [b]) when provider-assignees are also contemplated. Still other regulations refer only to “applicant” when either an eligible injured person or both eligible injured persons and their assignees are meant, depending on the remedy provided therein (11 NYCRR 65-3.5 [e], [l]). These citations are merely illustrative of the categories discussed (e.g. 11 NYCRR 65-3.8 [b] [2] [“applicant” means the eligible injured person in one clause and both the eligible injured person and his or her assignee in another clause]).

Indeed, the Superintendent, whose interpretation of the Insurance Department’s regulations, as noted, is entitled to deference, acknowledges that the terms “applicant” and “assignee” are used elsewhere in the regulations where “applicant,” employed generically, and in lieu of “claimant” (Insurance Law § 5106 [a]), would have sufficed (e.g. 11 NYCRR 65-3.10 [a]; 11 NYCRR 65-4.8 [b]). The Superintendent urges that such is the case with 11 NYCRR 65-3.9 (a) (see McKinney’s Cons Laws of NY, Book 1, Statutes § 231, Comment [“It is recognized . . . that the drafters of statutes do not always use the most apt words to express their intent; . . . that words [*4]are frequently used in a statute which are not necessary, but are to some extent superfluous”]).

There is an additional reason why it is not reasonable to suppose the Insurance Department intended to omit reference to assignees in 11 NYCRR 65-3.9 (c). The interest provision, presently at 24% per annum, is punitive in nature (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]) and “designed to inflict an economic sanction or penalty on those insurers who do not comply” (Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]). As the No-Fault Law is in derogation of the common law and “must be strictly construed” (Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211{**15 Misc 3d at 109} [1994]), the regulations must be interpreted in a manner conducive to the legislative goal of deterring dilatory responses to claims (Brunner v Allstate Ins. Co., 79 AD2d 491, 494 [1981]). Indeed, if interest is a penalty provision and a key mechanism of the Legislature’s mandate “to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of . . . accidents” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]), the imposition of a disparate application of the penalty depending on whether the applicant is an eligible injured person or a provider/assignee would contravene that goal.

The construction adopted by the court below creates the anomalous result that, rather than acting promptly to resolve a dispute, assignees only may decline to act on a claim upon which a mandatory punitive interest penalty is imposed (St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), for as long as the statute of limitations for breach of contract has yet to run (CPLR 213 [2]), and receive interest at a rate more than twice what is provided for ordinary breach of contract actions (CPLR 5004). The regulations do not permit eligible injured persons to delay arbitration or suit for such a purpose (11 NYCRR 65-3.9 [c]) and there is no rationale discernable in purposes of the No-Fault Law to support such a result.

The regulations, read as a whole in accordance with the rules of construction, the deference to be accorded the Superintendent’s assertion of intent, and the undesirable consequences of exempting assignees from the limitation imposed by 11 NYCRR 65-3.9 (c), lead to the conclusion that the reference to “applicant” in 11 NYCRR 65-3.9 (c) includes an eligible injured person’s assignee. Accordingly, the matter is remanded to the court below for a calculation of the statutory interest due in accordance with the decision herein.

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

Footnotes

Footnote *: Although the claims herein predate the amendments to the no-fault regulations effective April 5, 2002, as the regulations at issue were not modified to any material extent, they are cited as presently promulgated.

[*1]

Supreme Court, Appellate Term, Second Department, December 11, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Romagnolo & Cambio, LLP, Staten Island (Michael Gullo of counsel), for respondent.

{**14 Misc 3d at 95} OPINION OF THE COURT

Memorandum.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $357.94, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on plaintiff’s remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Defendant’s failure to timely object to the completeness of the claim forms or seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 [*2]AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Defendant’s remaining contentions regarding plaintiff’s alleged failure to establish its prima facie entitlement to summary judgment similarly have no merit. The burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).{**14 Misc 3d at 96}

A review of the record indicates that defendant made verification requests of the assignor seeking chiropractic and orthopedic independent medical examinations (IMEs) by letters dated May 22 and 23, 2002, which was prior to its receipt of plaintiff’s $357.94 claim on May 30, 2002. Consequently, these were preclaim verification requests and the tolling provisions of the insurance regulations do not apply (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s July 11, 2002 denial of said claim was untimely (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). Defendant, however, timely denied, on the basis of the assignor’s failure to attend the preclaim IMEs, the $101.07 claim which it received on June 19, 2002 and denied on July 9, 2002, the $67.38 claim which it received on July 1, 2002 and denied on July 9, 2002, and the $67.38 claim which it received on August 5, 2002 and denied on August 30, 2002 (see e.g. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51316[U] [App Term, 2d & 11th Jud Dists 2005]), and established such failure in admissible form in opposition to plaintiff’s motion for summary judgment. Consequently, the presumption of medical necessity which otherwise attached to these claim forms was rebutted and defendant raised a triable issue of fact as to the medical necessity of the services rendered (see e.g. 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 2004]).

We are aware that defendant’s agent sent a letter to plaintiff dated June 5, 2002 in which it stated that it had “received your [$357.94] bill . . . [and] [t]here will be a delay in our consideration of the bills . . . because . . . the claimant involved is currently scheduled for independent medical examinations.” The agent also sent letters to the assignor dated June 11 and 14, 2002 by which it, respectively, reminded the assignor of the chiropractic IME scheduled for June 18, 2002 and the orthopedic IME scheduled for June 24, 2002. The assignor was apparently unable to attend the orthopedic IME scheduled for June 24, 2002, and contacted defendant’s agent. By letter dated June 18, 2002, defendant’s agent acknowledged the assignor’s request to reschedule the orthopedic IME due to his work schedule, and rescheduled said IME to July 2, 2002. By another letter dated June 18, 2002, defendant’s agent acknowledged defendant’s{**14 Misc 3d at 97} request to reschedule the chiropractic IME and rescheduled said IME to July 1, 2002. It is uncontroverted that the assignor did not attend the rescheduled IMEs.

Even were we to deem the letter of June 5, 2002 to be a valid postclaim request for additional verification pursuant to 11 NYCRR 65-3.5 (b), said request would not have tolled the time which defendant had to pay or deny the claims since defendant did not make follow-up verification requests pursuant to 11 NYCRR 65-3.6 (b) after the assignor failed to attend the July [*3]IMEs. We note that although the assignor apparently contacted defendant’s agent on July 5, 2002 “to advise that he was unable to attend the [previously scheduled] appointment[s],” he was not allowed to reschedule them again. Defendant subsequently issued denials, dated July 9, 2002, based on the assignor’s failure to attend the July IMEs.

Furthermore, unlike our dissenting colleague, we do not view the mutually agreed upon rescheduling of the initial IMEs, from June 18, 2002 to July 1, 2002 and from June 24, 2002 to July 2, 2002, as the equivalent of a failure to supply “any requested verification[]” (see 11 NYCRR 65-3.6 [b]). We, therefore, do not deem the rescheduled July IMEs as follow-up requests.

In the court below, plaintiff’s opposition to defendant’s cross motion to compel depositions was only on procedural grounds. Therefore, plaintiff’s contention that defendant’s cross motion should be denied on the merits because it was not entitled thereto was improperly raised for the first time on appeal, and will not be considered by this court (see e.g. First Nationwide Bank v Goodman, 272 AD2d 433 [2000]). Plaintiff’s remaining contentions have no merit.

Accordingly, plaintiff is awarded partial summary judgment in the principal sum of $357.94, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on plaintiff’s remaining claims.

Golia, J. (concurring in part and dissenting in part): I concur with the findings of my colleagues to the extent that they find defendant timely denied plaintiff’s $67.38, $101.07 and $67.38 claims. I also agree that defendant’s proof as to mailing of the various notices was sufficient. However, I disagree with and dissent from their finding that defendant’s denial of the $357.94 claim, which it received on May 30, 2002 and denied on July 11, 2002, was untimely.{**14 Misc 3d at 98}

An examination of the record in this case will reveal that this defendant did everything conceivable to meet and exceed the requirements and the spirit of the no-fault regulations.

Defendant, in accordance with the regulations, sent a notice for an independent medical examination (IME) to the eligible injured person on May 22, 2002 directing that he appear for IMEs on June 18, 2002 and June 24, 2002. This notice was sent prior to plaintiff’s filing this claim, which is permissible pursuant to the regulations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]).

It is necessary to briefly examine the importance which the majority places on the fact that the initial notice for an IME was sent prior to the claim being filed. The majority in Fogel created, what I consider, a “forced” and unnecessarily complex interpretation of a very simple regulation. 11 NYCRR 65-1.1 states: “The eligible injured person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (emphasis added).

Nevertheless, Fogel created a bright-line distinction between an IME request that was sent before a claim was filed (preclaim) and one that was requested after the claim was filed (postclaim). Having invented this dichotomy, the Fogel majority held that if the assignor failed to appear at a preclaim IME, then such failure established, in itself, an issue of fact as to medical necessity. It further held that if the assignor failed to appear at a postclaim IME and the defendant had followed the protocols set forth in the regulations, then summary judgment would be granted to the defendant.

In the Fogel case, I dissented and found that the regulations do not establish such a distinction. In fact it is interesting to note that the Appellate Term of the First Department in Inwood Hill Med., P.C. v General Assur. Co. (10 Misc 3d 18, 20 [2005]) acknowledged and cited the Fogel decision but found that “we decline to follow the majority’s holding and find more persuasive the conclusion reached by . . . [the] dissent.”

Notwithstanding my belief that there should not be any distinction between preclaim and postclaim requests for an IME, I nevertheless find here that defendant has properly and timely met the requirements of the regulations, even as defined by the majority in Fogel. As is tacitly addressed in the majority’s decision, defendant’s “delay letter” of June 5, 2002 should serve as{**14 Misc 3d at 99} a postclaim verification request inasmuch as it contains all the elements required.

Plaintiff’s assignor did not appear for those “first” scheduled dates. Defendant, at assignor’s request, rescheduled the IMEs for July 1 and July 2, 2002 and then sent letters reminding the assignor of the mutually agreeable dates of the second appointments for IMEs. [*4]The assignor, nevertheless, failed to appear on either July 1st or July 2nd and defendant thereupon sent a timely denial (NF-10). I note that the assignor contacted defendant immediately prior to the first scheduled IME and requested rescheduling. There was no such request for a rescheduling of the July appearances; the assignor simply failed to appear. It was only after the assignor failed to appear on July 1st and then failed to appear on July 2nd that he contacted the defendant on July 5th to discuss rescheduling.

Consequently, even if one were to discount the June 18th and June 24th IME appointments, it would be absurd to require defendant to serve a second set of notices for IMEs when the original dates were previously rescheduled at the assignor’s request and upon which he intentionally failed to appear and failed to notify the defendant that he would be unable to appear.

If one were to follow the reasoning of the majority, then defendant would have been well served to ignore the assignor’s request for rescheduling of the June dates. Thereafter, upon the assignor’s failure to appear, the defendant would then send a “follow-up” request setting a date of defendant’s choosing and thereby inconvenience the assignor, and upon the assignor’s failure to appear, defendant could then “legitimately” issue an NF-10 denial of claim.

In the matter before us, defendant sent its request for an IME on May 22, 2002. Plaintiff, on May 28, 2002, filed this disputed claim for $357.94. On June 11, 2002 and on June 14, 2002, both dates well within the 30-day claim period, defendant sent “reminder” letters to the eligible injured person (assignor) which noticed him for examinations on June 18, 2002 and June 24, 2002. On June 17, 2002 defendant received requests to adjourn both June IMEs and rescheduled them to the mutually agreed upon dates of July 1 and 2, 2002. (See affidavit of Jeffrey Mehl, Executive Director HVMC, exhibit H, ¶ 5 of defendant’s cross motion.)

In addition, on June 5, 2002, defendant sent a “delay letter” to plaintiff (assignor) which stated specifically that the{**14 Misc 3d at 100} claim was being delayed due to a pending demand for an IME of plaintiff’s assignor. Certainly this postclaim “delay letter” must serve as a functional equivalent of an additional verification request pursuant to the regulations inasmuch as it specifically informed the plaintiff of what was required in order to complete the claim filed. In fact, the majority of the court then sitting in Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]) held that a verification request will not serve to toll the 30-day period if it merely informs that the claim is delayed but fails to specify the particular information sought. Since this notice informs the plaintiff, with specificity, of the information sought, it is a functional equivalent and therefore qualifies as an additional verification request which in turn tolls the 30-day period. To me, that is substance over form.

I note that plaintiff’s attorney’s affirmation states at page 5 that “there are no notices . . . calling for any verification or cooperation whatsoever.” He claims that the assignor has no obligation to open any mail from an unknown source and since the notice did not come from the insurance company, it has no significance. How counsel can speak for the assignor who is not his client and without an affidavit in support of his assertions is beyond me. Clearly it has no significance and should be discounted.

Despite defendant’s well demonstrated willingness to accommodate the assignor, that individual willfully failed to appear either on July 1 or July 2, 2002. Nor did he request an [*5]adjournment prior to July 1, 2002. The fact that he requested yet another opportunity to appear for these IMEs was clearly a red herring used to give the assignor additional time to build up his no-fault claim and cost the defendant additional funds for “no-show” medical appointments.

There must be an end. The assignor’s failure to appear at either of the two appointments that he scheduled certainly constitutes a reasonable end.

Here, defendant used every reasonable means to assure compliance with the regulations and to give proper notice to plaintiff and its assignor. Indeed, it was only after the assignor failed to appear on the adjourned dates, the second of which was requested by the assignor himself, that the defendant sent an NF-10 denial of claim.

Clearly, in light of those delay letters and reminder notes sent by the defendant, the NF-10 denial of claim form sent on July{**14 Misc 3d at 101} 11, 2002 was timely and I would affirm the order of the court below.

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