First Help Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 51043(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered January 11, 2005, and from a judgment entered thereon on January 18, 2006. The order granted plaintiff’s motion for summary judgment. The judgment awarded plaintiff the principal sum of $1,200.

Appeal from order dismissed.

Judgment reversed without costs, order entered January 11, 2005 vacated and plaintiff’s motion for summary judgment denied.

The appeal from the order must be dismissed because the right to appeal directly therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said order are brought up for review upon the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms setting forth the fact and 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]). While plaintiff’s moving papers were insufficient to establish submission of the claim forms (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), said deficiency was cured by defendant’s acknowledgment of receipt in its denial of claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, defendant’s submissions, consisting of, inter alia, the [*2]report of its special investigator, were sufficient to raise an issue of fact as to whether plaintiff is a fraudulently incorporated medical corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In Mallela, 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 and hence ineligible for reimbursement of no-fault benefits under 11 NYCRR 65-3.16 (a) (12), is a nonwaivable defense and is therefore not subject to the 30-day preclusion rule (cf. Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether plaintiff was a fraudulently licensed medical corporation, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 30, 2006