[*1]

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, N.Y. (John E. McCormack and Kevin Mattei of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered May 8, 2013, which granted the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the complaint is denied.

The defendant allegedly provides durable medical equipment (hereinafter DME) and supplies to persons who are involved in motor vehicle accidents in New York State. The defendant, upon the assignment by the injured persons of no-fault insurance benefits, submitted bills to the plaintiffs seeking reimbursement for the DME provided to the injured persons. State regulation 11 NYCRR 65-1.1 and the applicable insurance policies provided that, for each of the claims submitted by the defendant for reimbursement, upon the plaintiffs’ request, the eligible insured person or that person’s assignee or representative shall: (1) execute, under oath, written proof of the claim, and (2), as may reasonably be required, submit to examinations under oath (hereinafter EUOs) by any person named by the plaintiffs.

The plaintiffs launched an investigation into the defendant’s billing practices in an attempt to verify the documented cost of the DME. The plaintiffs alleged that their investigation could not confirm the defendant’s existence at the claimed location provided on its billing statements. Furthermore, the plaintiffs alleged that the defendant routinely billed under miscellaneous codes for DME despite the fact that all such DME items had legitimate codes that should have been utilized for billing purposes, and that the defendant failed to submit any wholesale supply invoices or any documentation identifying the wholesale company it utilized so as to substantiate its documented costs.

In order to investigate these issues, the plaintiffs requested that the defendant submit [*2]to EUOs and advised that compliance was a condition precedent to coverage. They also made verification requests for purchase receipts, cancelled checks, wholesale invoices, information regarding the name, model, manufacture, serial number, and age of the DME, and the physician referral for the DME. The plaintiffs alleged that none of the information requested for purposes of claim verification was received, and the defendant did not appear for the scheduled EUOs. As a result, the plaintiffs issued denials of the defendant’s claims on the ground that the defendant violated policy conditions, i.e., the defendant failed to provide the requested information and to appear for the EUOs.

The plaintiffs commenced this action for a judgment declaring that they are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant on the ground that the defendant failed to comply with conditions precedent to reimbursement under the no-fault laws and regulations and insurance laws of this state. After the defendant interposed its answer, the plaintiffs successfully moved for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

The defendant contends that the plaintiffs failed to establish, prima facie, that the denials of claims were timely and properly mailed to it. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]). “ ’The presumption 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’ ” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829-830).

Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre, the Medical Claims Representative assigned to this matter, asserted that for denials mailed after August 17, 2010, as is relevant herein, all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre’s affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2007]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 228 [1985]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Accordingly, the Supreme Court erred in granting the plaintiffs’ motion for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

In light of our determination, the defendant’s remaining contentions have been rendered academic. Mastro, J.P., Chambers, Austin and Miller, JJ., concur.

[*1]

Marshall & Marshall, PLLC, Jericho (Jeffrey D. Kadushin of counsel), for appellant.

Dwyer & Taglia, New York (Joshua T. Reece of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 14, 2014, which, upon granting reargument, vacated the amended order, same court and Justice, entered June 6, 2013, confirming an arbitration award in favor of petitioner and denying respondent’s cross petition seeking to vacate the arbitration award, and granted the cross petition, unanimously affirmed, without costs.

Respondent made a prima facie showing that the offending vehicle in this no-fault arbitration was insured by Global Liberty Insurance of New York, by submitting a Department of Motor Vehicles expansion, indicating that Global had insured the vehicle subsequent to respondent’s coverage (see Matter of Eagle Ins. Co. v Kapelevich, 307 AD2d 927 [2d Dept 2003], lv denied 1 NY3d 503 [2003]; Matter of State Farm Mut. Auto. Ins. Co. v Youngblood, 270 AD2d 493 [2d Dept 2000]). By operation of Vehicle and Traffic Law § 313 (1) (a), the subsequent coverage terminated respondent’s coverage of the same vehicle as of the effective date and hour of Global’s coverage, irrespective of whether respondent had otherwise complied with the cancellation requirements of the Vehicle and Traffic Law (see Employers Commercial Union Ins. Co. of N.Y. v Firemen’s Fund Ins. Co., 45 NY2d 608, 611 [1978]). Thus, it was arbitrary and capricious for the arbitrator to find that respondent was the insurer of the vehicle at the time of the accident because it failed to demonstrate that it had properly cancelled its policy. The [*2]arbitration award was also in excess of the arbitrator’s authority, where it awarded coverage when none existed (cf. Countrywide Ins. Co. v Sawh, 272 AD2d 245 [1st Dept 2000]; Matter of State Farm Ins. Co. v Credle, 228 AD2d 191 [1st Dept 1996]). Concur—Friedman, J.P., Renwick, Moskowitz, Richter and Clark, JJ.

Decided on March 3, 2015
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered July 2, 2014, which denied the petition seeking to vacate the determination of the Master Arbitrator, dated November 6, 2013, affirming the award of the lower arbitrator in this no-fault arbitration, unanimously reversed, on the law, without costs, the petition granted, the arbitration award vacated, and the matter remanded for a new arbitration hearing before a different arbitrator.

The no-fault arbitrator gave no weight to an independent medical examination (IME) report, prepared by a chiropractor and submitted by petitioner, because it was not notarized pursuant to CPLR 2106. The Master Arbitrator, in reviewing the award, deferred to the no-fault arbitrator’s determination of the weight to be given to the evidence, as did the IAS court.

We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2015

CLERK

[*1]

Mura & Storm, PLLC, Buffalo, N.Y. (Roy A. Mura of counsel), for appellant.

Gregory W. Bagen, Brewster, N.Y., for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Putnam County (Nicolai, J.), entered August 16, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $210,587.30, comprising $72,000 in principal arrears and $138,587.30 in accrued compound interest. Justice Rivera has been substituted for former Justice Angiolillo, Justice Skelos has been substituted for former Justice Belen, and Justice Dillon has been substituted for former Justice Lott (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff compound interest in the sum of $138,587.30; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith, and the entry of an appropriate amended judgment thereafter.

On August 9, 2004, Sharon Heidei, also known as Sharon Rollman (hereinafter the decedent) was injured in an automobile accident. On November 13, 2004, the decedent filed a claim with the defendant, Hereford Insurance Company, to recover for basic economic loss and additional personal injury protection benefits. The defendant thereafter disclaimed coverage. On October 17, 2008, the decedent commenced this action, seeking to recover those benefits. On August 16, 2010, after a nonjury trial, the Supreme Court entered a judgment in favor of the decedent and against the defendant. The defendant appeals.

On October 28, 2011, approximately one month after oral argument on this appeal was heard, the decedent died, and the matter was stayed by operation of CPLR 1021, pending substitution of the decedent’s personal representative. In 2012, the defendant petitioned the Surrogate’s Court, Putnam County, to appoint an administrator of the decedent’s estate. On July 9, 2014, the Surrogate’s Court granted the defendant’s petition, and appointed Putnam County Commissioner of Finance William J. Carlin, Jr., as the administrator of the decedent’s estate. By decision and order dated November 21, 2014, this Court granted the defendant’s motion to substitute Carlin as the respondent in place of the decedent, and lifted the stay. Pursuant to the terms of that order, the appeal was subsequently deemed to have been submitted on the original briefs.

Since three of the four justices who heard oral argument were no longer on the bench [*2]when the stay was lifted, three other justices of this Court have been substituted for them (see 22 NYCRR 670.1 [c]).

In connection with policies of automobile insurance, Insurance Law § 5102 (d) defines “basic economic loss” as up to $50,000 per person for combined expenses incurred by a covered person as a consequence of an automobile accident for medical, hospital, surgical, dental, and similar charges, loss of earnings, and other reasonable and necessary expenses. Insurance Law § 5103 (a) mandates that all automobile insurance policies written in New York provide for such coverage, commonly known as no-fault coverage. The defendant’s contention that, in light of the nature of the underlying accident, the plaintiff was not a covered person under the no-fault provisions of the subject automobile insurance policy is not properly before this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Moreover, this defense does not raise a pure question of law apparent on the face of the record that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $50,000 in unpaid basic no-fault benefits.

The automobile insurance policy issued by the defendant also provided optional additional personal injury protection, with limits of $150,000, for covered persons who sustained extended economic loss as a consequence of an automobile accident. This coverage is commonly known as excess no-fault coverage. The defendant failed to preserve for appellate review its contention that the plaintiff was ineligible for coverage under the additional personal injury protection provisions of the subject policy since, at trial, it made no reference to the governing insurance regulations, nor did it request that the Supreme Court take judicial notice thereof (see CPLR 4511 [b]; cf. Matter of Damian M., 41 AD3d 600 [2007]; Matter of Olympia Victoria R., 261 AD2d 191 [1999]). The defendant’s contention on appeal that the plaintiff was ineligible for excess no-fault coverage does not raise a pure question of law that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]; cf. Block v Magee, 146 AD2d 730, 732-733 [1989]). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $22,000 in unpaid excess no-fault benefits.

Although the defendant also failed to raise before the Supreme Court its contention that the court erred in applying compound interest accruing at 2% per month to the unpaid no-fault benefits (see CPLR 4017; cf. Corsi v Town of Bedford, 58 AD3d 225, 228 [2008]), we review this issue on appeal because it presents a pure question of law that could not have been avoided if brought to the Supreme Court’s attention at the proper juncture (see Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700, 701 [2011]; Block v Magee, 146 AD2d at 732-733). The Supreme Court erred in awarding compound interest, since the pertinent New York insurance regulations provide for the accrual of simple interest on improperly withheld no-fault benefits at a rate of 2% per month (see 11 NYCRR 65-3.9 [a]; Insurance Law § 5106 [a]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]).

Accordingly, we remit this matter to the Supreme Court, Putnam County, for the recalculation of the interest accrued on the award of the principal sum of $72,000 in unpaid no-fault benefits, by applying simple interest at the rate of 2% per month, from January 15, 2005, through July 15, 2010, and the entry of an appropriate amended judgment thereafter. Mastro, J.P., Rivera, Skelos and Dillon, JJ., concur.

[*1] (February 25, 2015)

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiff validly disclaimed coverage to its insured, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated December 14, 2012, as denied those branches of its motion which were for a temporary restraining order and a preliminary injunction.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff sought to temporarily restrain and preliminarily enjoin all no-fault actions arising from a car accident in which its insured allegedly was a driver. The plaintiff failed to establish a likelihood of success on the merits of its cause of action (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2008]; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590 [2005]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350 [1998]), failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief (see County of Suffolk v Givens, 106 AD3d 943 [2013]; Golden v Steam Heat, 216 AD2d 440, 442 [1995]), and failed to demonstrate that any injuries it would suffer would not be compensable by money damages (see Rowland v Dushin, 82 AD3d 738 [2011]; EdCia Corp. v McCormack, 44 AD3d 991, 994 [2007]; Matter of Gandolfo v White, 224 AD2d 526, 528 [1996]). The plaintiff also failed to establish that the equities balance in its favor (see McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 174 [1986]). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which sought a temporary restraining order and a preliminary injunction. Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.

[*1]

Buckley Law Group, P.A., New York (Erdal Turnacioglu of counsel), for appellant.

Boeggeman George & Corde, P.C., White Plains (Richard G. Corde of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 12, 2013, which denied plaintiff’s motion for summary judgment on its claim for defense costs expended in the underlying personal injury action, and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The underlying personal injury action was discontinued by stipulation, to which plaintiff’s insured was a signatory, agreeing that all cross claims between the defendants in that action were “discontinued and waived.” The stipulation contained no reservation of any insurer’s subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 381-382 [1984]; Ziegler v Raskin, 100 AD2d 814 [1st Dept 1984], appeal dismissed 65 NY2d 925 [1985]). Thus, plaintiff, as subrogee of its insured, standing in its insured’s shoes and having no greater rights than its insured has, may not assert a subrogation claim against defendant (see Progressive Ins. Co. v Sheri Torah, Inc., 44 AD3d 837, 838 [2d Dept 2007]).

Plaintiff’s claim is also time-barred, because plaintiff is seeking common-law subrogation relief, and the statute of limitations on the underlying personal injury cause of action (three years) commenced to run as of the date of the accident (see General Construction Law § 20; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 43 [1995]; CPLR 214 [5]; cf. Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996] [subrogation rights created by no-fault statute commenced on date benefits were paid]).

Although defendant informed plaintiff six months before the limitations period expired that the lessee had failed to name plaintiff’s insured as an additional insured on his personal automobile insurance policy and that plaintiff’s insured was afforded coverage under the policy as a loss payee only, plaintiff did not assert a breach of contract claim against the lessee, or bring a declaratory judgment action against defendant or a subrogation action until well after the time to do so had expired (see Allstate Ins. Co. v Stein, 1 NY3d 416, 423 [2004]).

Thus, even if plaintiff were, as it contends, an additional insured solely by operation of [*2]the terms of the policy issued by defendant, and without reference to the terms of the lease, it could not assert a subrogation claim because its time to do so has expired. Concur—Friedman, J.P., Sweeny, Andrias, Moskowitz and DeGrasse, JJ.

[*1]

Second Department, February 18, 2015

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2013 NY Slip Op 33849(U), reversed.

APPEARANCES OF COUNSEL

Melito & Adolfsen, P.C., New York City (Louis G. Adolfsen and S. Dwight Stephens of counsel), for appellants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, New York City (John Belesi and David Verschell of counsel), for respondent.

Greenberg Traurig, LLP, New York City (Francis J. Serbaroli of counsel), for amicus curiae New York State Association of Ambulatory Surgery Centers, Inc.

This appeal presents an issue of first impression, namely, whether a no-fault insurer must pay, as a component of first-party benefits for “basic economic loss” (Insurance Law § 5102 [a]), a facility fee in connection with “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (1) (h). A facility fee is a charge for the use of a medical facility and its staff and equipment. It is separate from the fee to which a physician or other medical professional is entitled for performance of the medical procedure itself.

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d [1] [b]). Public Health Law § 230-d, which is not contained in Public Health{**127 AD3d at 62} Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d.

Mark Gladstein, an anesthesiologist, performs “office-based surgery” (Public Health Law § 230-d [1] [h]) at an office in Brooklyn owned by the defendant, Avanguard Medical Group, [*2]PLLC.^[FN1] Dr. Gladstein is an owner of Avanguard. It is not in dispute on this appeal that Dr. Gladstein’s medical practice is accredited under Public Health Law § 230-d for the performance of office-based surgery (see Public Health Law § 230-d [2]). It is also not in dispute that Avanguard’s Brooklyn office is accredited as a setting for office-based surgery (see Public Health Law § 230-d [3]).

Dr. Gladstein bills for his performance of office-based surgery through a professional corporation, Metropolitan Medical and Surgical, P.C. Separate and apart from that billing, Avanguard seeks to collect a facility fee from no-fault insurers for the use of its Brooklyn office where the office-based surgery is performed. The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X ray and ultrasound equipment, for office-based surgery.

In 2011, the plaintiffs—Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Co., and GEICO Casualty Co. (hereinafter collectively GEICO)—commenced this action against Avanguard seeking a judgment declaring, in essence, that GEICO is not required under the No-Fault Law and regulations to pay a facility fee for office-based surgery performed at Avanguard’s office. Avanguard had named GEICO as a defendant in numerous actions and arbitrations in which Avanguard sought to collect facility fees after GEICO refused to pay such fees. In 2012, GEICO moved in this action for a stay of numerous related district court and civil court actions and arbitrations, and for a preliminary{**127 AD3d at 63} injunction against the commencement of new actions and arbitrations, pending the determination of this action. The Supreme Court denied GEICO’s motion (2012 NY Slip Op 31516[U] [2012]), and GEICO appealed from that determination (see Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 125 AD3d 803 [2d Dept 2015, No. 2012-06819] [decided herewith]). GEICO subsequently moved for summary judgment declaring that it is not required to pay facility fees for office-based surgery. In the order appealed from, the Supreme Court denied GEICO’s motion, in large part on the ground that its denial of the motion for a stay and preliminary injunction was, in effect, the law of the case (2013 NY Slip Op 33849[U] [2013]).

To determine whether a fee for the use of medical facilities may be reimbursed as a component of “basic economic loss,” we need to examine the meaning of “basic economic loss.” Under the No-Fault Law (Insurance Law § 5101 et seq.), an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered “basic economic loss” (Insurance Law § 5102 [a]), subject to the limitations of Insurance Law § 5108. One of the components of basic economic loss is, as relevant here, “[a]ll necessary expenses incurred for . . . medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services . . . and . . . any other professional health services” (Insurance Law § 5102[a] [1]).^[FN2]

Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” (Insurance Law § 5108 [a]).^[FN3] Where workers’ compensation schedules have not been prepared for certain services covered under Insurance Law § 5102, Insurance Law § 5108 requires that the Superintendent of Financial Services establish schedules after consulting with the [*3]Chairperson of the Workers’ Compensation Board and the Commissioner of Health (see Insurance Law § 5108 [b]). The implementing and coordinating regulations of the{**127 AD3d at 64} Department of Financial Services^[FN4] 11 NYCRR 65-3.16 (regulation No. 68-C, “Measurement of no-fault benefits”)—refer, in turn, to “Regulation [No.] 83.” Regulation No. 83 (11 NYCRR 68.0) adopts the workers’ compensation schedules that were already in existence (see 11 NYCRR 68.1 [“Adoption of certain workers’ compensation schedules”]; 12 NYCRR 329.3 [“Medical fee schedule; incorporation by reference”]), and establishes schedules for services not already contained in workers’ compensation schedules (11 NYCRR 68.2 [“Establishment of certain health provider schedules”]).

The fee schedules do not provide for facility fees for office-based surgery performed in a practice and a setting accredited under Public Health Law § 230-d. Nonetheless, Avanguard contends that facility fees are included within the Insurance Law § 5102 definition of “basic economic loss” because they are a “necessary expense[ ] incurred for . . . medical, . . . surgical [and] nursing . . . services” (Insurance Law § 5102 [a] [1]). Further, Avanguard points out that regulation No. 83 includes a default provision in recognition that not all covered services will be contained in the applicable fee schedules. This provision—11 NYCRR 68.5 (“Health services not set forth in schedules”)—provides a mechanism for determination of appropriate fees for those services that are included within the definition of “basic economic loss” but are not contained in a schedule. Avanguard contends that, under this “default” regulation, it is entitled to a facility fee and that this fee is the same fee provided to ambulatory surgical centers under article 28 of the Public Health Law.

Avanguard’s contention is untenable. First, Avanguard fails to take into account that the definition in Insurance Law § 5102 of “basic economic loss” expressly incorporates the limitations imposed by Insurance Law § 5108. As previously discussed, Insurance Law § 5108 provides that, with only limited exceptions, charges shall not exceed the amounts set forth in the workers’ compensation schedules. Accordingly, the determination of what is a necessary expense must take Insurance Law § 5108 into account. There is no provision in the workers’ compensation schedules expressly providing for payment of facility fees for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. The {**127 AD3d at 65}absence of such a provision supports GEICO’s argument that a facility fee is not a necessary expense for medical services performed by a practice and in a facility accredited under Public Health Law § 230-d.

Moreover, the default provision upon which Avanguard relies is inapplicable, by its own terms. That provision, contained in 11 NYCRR 68.5, provides a mechanism for setting a fee for necessary services for which no fee schedule is specifically set forth in the workers’ compensation fee schedules. It says:

“Section 68.5. Health services not set forth in schedules

“If a professional health service is performed which is reimbursable under section 5102(a)(1) of the Insurance Law, but is not set forth in fee schedules adopted or established by the superintendent, and:

“(a) if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule, subject to review by the insurer; or

“(b) if the superintendent has not adopted or established a fee schedule applicable to the 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 [emphasis added]).

Under this regulation, a provider may be entitled to reimbursement in situations when there is no fee schedule for a particular service. Avanguard cannot accurately assert that there is no existing fee schedule that determines the amount of a facility fee. Indeed, it is undisputed that Avanguard has consistently billed GEICO for facility fees based on the existing fee schedule and “PAS” codes that are applicable to Public Health Law article 28 ambulatory surgical centers (see 10 NYCRR 86-4.1, 86-4.40). Accordingly, there is indeed a fee schedule for facility fees. That schedule, however, is not applicable to Avanguard. Thus, a prerequisite to application of the default provision is absent.{**127 AD3d at 66}

The conclusion that the default provision is inapplicable makes sense in light of its purpose. The default provision relates to particular procedures that do not appear on any existing fee schedule (see 11 NYCRR 68.5 [a], [b]). A facility fee is not a fee for a particular medical procedure, but a blanket charge added to the billing for all procedures. In other words, Avanguard contends that, under the default regulation, an entire category of fees should be deemed compensable. We reject such a broad interpretation of the default provision, because the obvious intent of the default provision is to fill in discrete gaps in the schedules, not to make an entirely new category of “service” compensable (11 NYCRR 68.5).

We decline to read the default provision so broadly for another reason. We glean no legislative intent to require payment of facility fees, which are part of the comprehensive statutory and regulatory framework under Public Health Law article 28 pertaining to specific types of medical facilities, to practices and settings entirely separate from Public Health Law article 28. Article 28 facilities are subject to detailed and extensive requirements governing the establishment, licensing, and operation of facilities (see e.g. 10 NYCRR 400.18, 709.5; part 755). Avanguard is not an article 28 facility.

Avanguard’s remaining contention does not require extensive discussion. Avanguard contends that, in 2007, the legislature created a new class of medical facility, an “office based surgical facility,” when it enacted Public Health Law § 230-d (see L 2007, ch 365, § 2). Further, it asserts that its accreditation under Public Health Law § 230-d entitles it to a facility fee. As we have already discussed, however, only article 28 facilities are entitled to a facility fee under the existing no-fault laws and regulations. Thus, we need not decide whether the legislature created a new class of medical facility under Public Health Law § 230-d when it required accreditation of practices and settings in which office-based surgery is performed. Further, it would be improper for us, on our own, to determine that a facility such as Avanguard is entitled to a benefit of Public Health Law article 28 when it is not subject to the significant regulatory burdens and costs of that article. Instead, it is for the legislature and the Superintendent of Financial Services to determine whether the laws and regulations should be{**127 AD3d at 67} changed to entitle an accredited Public Health Law § 230-d facility to a facility fee.^[FN5]

Inasmuch as GEICO established on its motion for summary judgment, prima facie, that it is not required to reimburse Avanguard for facility fees, and Avanguard did not raise a triable issue of fact in opposition, GEICO’s motion should have been granted.

Accordingly, the order is reversed, on the law, GEICO’s motion for summary judgment declaring that it is not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that GEICO is not required to reimburse Avanguard for facility fees as payable first-party benefits under Insurance Law § 5102.

Dickerson, Leventhal and Roman, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the plaintiffs’ motion for summary judgment declaring that they are not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiffs are not required to reimburse the defendant for facility fees as payable first-party benefits under [*5]Insurance Law § 5102.

Footnotes

Footnote 1:Under Public Health Law § 230-d (1) (h),

“ ’Office-based surgery’ means any surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation, and any liposuction procedure, where such surgical or other invasive procedure or liposuction is performed by a licensee in a location other than a hospital, as such term is defined in article twenty-eight of this chapter, excluding minor procedures and procedures requiring minimal sedation.”

Footnote 2:Insurance Law § 5102 (a) (1) also encompasses psychiatric treatment, physical therapy, and occupational therapy and rehabilitation, as well as certain nonmedical remedial care and treatment in accordance with religious methods of healing (see Insurance Law § 5102 [a] [1] [ii], [iii]).

Footnote 3:The workers’ compensation schedules are referred to in the regulations of the Commissioner of Labor and incorporated into that regulation by reference (see 12 NYCRR 329.3).

Footnote 4:In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services” (see L 2011, ch 62, § 1, part A, §§ 1, 13, 104 [d]).

Footnote 5:The Office of General Counsel of the Department of Financial Services has opined that the Insurance Law does not require an insurer to pay a facility fee for surgery performed in a physician’s office (see Ops Gen Counsel NY Ins Dept No. 08-10-06 [Oct. 2008]).

[*1]

Peter C. Merani, P.C., New York, N.Y. (Mark J. Fenelon and Eric Wahrburg of counsel), for appellant.

Subin Associates, LLP, New York, N.Y. (Gregory T. Cerchione and Asya Domashitsky of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated July 23, 2012, confirming an award of an arbitrator dated April 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered March 18, 2013, which denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

In this case, the nonparty, Carmen Carvajal, allegedly was injured in a motor vehicle accident on February 22, 2011, and thereafter sought treatment from the Westchester Medical Group, incorrectly named herein as Westchester Medical Group, M.D. (hereinafter Westchester). As assignee of Carvajal, Westchester sought from her insurance carrier, the petitioner Allstate Insurance Company (hereinafter Allstate), no-fault benefits in the sum of $352.81 for medical services rendered to Carvajal. However, Allstate maintained that it had no duty to pay this sum since its request to Westchester for “additional verification” allegedly remained outstanding (see 11 NYCRR 65-3.5 [f]). In an award dated April 25, 2012, the arbitrator concluded that Westchester did in fact comply with the requests for additional verification, and that Allstate “did not appear to be acting in good faith.” That award was confirmed in an award issued by a master arbitrator on July 23, 2012. The Supreme Court denied Allstate’s petition to vacate the master arbitrator’s award and confirmed the award. We affirm.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; see Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 755-756 [2005]; Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 [*2]NY2d 207, 211 [1981]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560, 561 [2007]). “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]). Accordingly, the Supreme Court properly denied the petition and confirmed the award. Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.

[*1]

Law Offices of John Cucci, Jr., Patchogue, N.Y., for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, inter alia, to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated September 5, 2013, which denied her motion for summary judgment on the complaint and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, who had been a passenger in her husband’s vehicle, fell while exiting the vehicle after her husband had parked the vehicle on the street in front of their home. She allegedly injured her knee as a result of the fall. The plaintiff submitted an application for no-fault benefits to the defendant under the automobile insurance policy issued to the plaintiff and her husband. The defendant denied her claim on the ground that the injury did not arise out of the use or operation of a motor vehicle.

The plaintiff commenced this action against the defendant to recover, inter alia, no-fault benefits under the subject insurance policy. The plaintiff moved for summary judgment on the complaint. The defendant cross-moved for summary judgment dismissing the complaint, or, in the alternative, to dismiss the second, third, and fourth causes of action. The Supreme Court denied the plaintiff’s motion and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint.

Section 5103 of the Insurance Law, part of the “Comprehensive Motor Vehicle Insurance Reparations Act,” which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle “for loss arising out of the use or operation . . . of such motor vehicle” (Insurance Law § 5103 [a] [1]). Where a plaintiff’s injuries from an accident were produced other than as a result of the use or operation of the vehicle itself, no-fault first-party benefits are not available (see Cividanes v City of New York, 20 NY3d 925, 926 [2012]; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]). “Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use” (Walton [*2]v Lumbermens Mut. Cas. Co., 88 NY2d at 215).

Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law (see id. at 216; see also Cividanes v City of New York, 20 NY3d at 926). The plaintiff testified at her examination under oath, the transcript of which she submitted in support of her motion, that she simply fell while exiting the subject vehicle and that her knee “gave way.” Moreover, the plaintiff’s affidavit similarly indicated that she just fell without attributing her accident to the use or operation of the subject vehicle.

The defendant, however, established, prima facie, that the plaintiff’s alleged injuries did not arise from the use or operation of a vehicle (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 216; Hammond v GMAC Ins. Group, 56 AD3d 882, 883 [2008]; Santo v Government Empls. Ins. Co., 31 AD3d 525, 526 [2006]; Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890 [2005]; see also Cividanes v City of New York, 20 NY3d at 926). In support of its cross motion, in addition to the transcript of the plaintiff’s examination under oath, the defendant submitted the plaintiff’s application for no-fault benefits and her signed statement concerning the circumstances of the accident, in which she consistently described the accident as occurring when her right knee “buckled” while she was getting out of the car, causing her to fall to the ground. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint and properly granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint. Skelos, J.P., Austin, Roman and LaSalle, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 18, 2013, which granted plaintiff insurer’s motion for summary judgment declaring that defendants-appellants are not entitled to no-fault benefits, unanimously modified, on the law, solely to declare that defendants-appellants are not entitled to no-fault benefits, and otherwise affirmed, without costs.

Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court’s holding in Unitrin applies to EUOs (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]; Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52354[U] [App Term, 1st Dept 2012]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff also established that the statements on the record were business records (see e.g. People v Cratsley, 86 NY2d 81, 90-91 [1995]; One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11-12 [1st Dept 2011]). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), plaintiff was not required to demonstrate that the assignors’ nonappearances were willful (see Unitrin, 82 AD3d at 561).

[*2] Defendants’ argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors’ correct addresses is unpreserved (see e.g. Ta-Chotani v Doubleclick, Inc., 276 AD2d 313, 313 [1st Dept 2000]) and unavailing (see American Tr. Ins. Co. v Leon, 112 AD3d 441, 442 [1st Dept 2013]). Similarly, their argument that plaintiff waived the defense of the assignors’ nonappearance because plaintiff did not establish that it ever denied defendants’ claims is unpreserved (see 276 AD2d at 313). In any event, the argument is unavailing, as defendants’ own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 AD3d at 597).

We modify the court’s order solely to make a declaration in plaintiff’s favor (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; see also QBE Ins. Corp. v Jinx-Proof Inc., 102 AD3d 508, 510 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Friedman, Renwick, Manzanet-Daniels and Kapnick, JJ.