[*1]

Civil Court of the City of New York, Bronx County, October 31, 2018

APPEARANCES OF COUNSEL

Gullo & Associates, LLC. for defendant.

Gary Tsirelman, PC for plaintiff.

Upon the testimony and evidence proffered at trial, the court hereby finds in favor of defendant and dismisses the complaint.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On May 16, 2008, assignor Sharise Davis (Davis) was involved in an automobile accident. At the time of the instant accident, Davis was covered under an automobile insurance policy issued by defendant, which provided benefits under the New York State No-Fault Law.^[FN*] Davis sought treatment from plaintiff Sunrise Acupuncture, P.C., the assignee of Davis’ no-fault benefits under defendant’s policy. Plaintiff submitted claims for medical treatment provided to Davis and defendant denied them. Based on the foregoing, pursuant to the New York State No-Fault Law and the policy, plaintiff seeks judgment in the amount of $425 plus interest.

On July 28, 2013, this court (Taylor, J.) denied defendant’s motion for summary judgment and dismissal of the complaint. The court held that defendant failed to submit admissible evidence in support of its claim that Davis was not an insured under the policy issued to the Albanos. Defendant appealed and the Appellate Term affirmed (Sunrise Acupuncture P.C. v Kemper Independence Ins. Co., 50 Misc 3d 133[A], 2016 NY Slip Op 50025[U], *1 [App Term, 1st Dept 2016] [“We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the ‘legal representative of the deceased,’ defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision”]).

At trial, the parties stipulated to the admission of several documents in evidence, some of which will be discussed hereinafter. More importantly, the parties limited the court’s inquiry to one issue, namely, whether under the instant facts defendant’s insurance policy afforded coverage to Davis.

The parties submitted the insurance policy at issue (exhibit B). Said policy was issued to Ronald and America Albano. According{**62 Misc 3d at 309} to the policy, the term began on July 24, [*2]2007, and ended a year later. Per the declarations, the policy covered a 1998 Mercury and a 1980 Plymouth automobile. Section III of the policy governed coverage with respect to the foregoing vehicles. Specifically, the policy defined a “your covered auto” as “[a]ny vehicle shown in the Declaration,” and “[a]ny of the following types of vehicles on the date you become the owner . . . [including] [a] private passenger auto.” The policy further defined a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” Per the policy, “ '[b]odily injury,’ means bodily harm, sickness or disease, including death that result.” “ ’Occupying’ means in, upon, getting in, on out or off.” Part B or the Medical Payments Coverage portion of the policy defined “insured” as “[y]ou or any ‘family member’ . . . [w]hile ‘occupying’ . . . a motor vehicle designed for use mainly on public roads.” Part B of the policy further stated that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” Section IV of the policy, titled General Policy Conditions, stated that

“[y]our rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for . . . [t]he surviving spouse if a resident in the same household at the time of death . . . [and] [t]he legal representative of the deceased person as if a named insured shown in the Declarations . . . only with respect to . . . [t]he representative’s responsibility to maintain or use ‘your covered auto.’ ”

The parties submitted two death certificates (exhibit D), which indicate that the Albanos died in June 2007, and letters testamentary (exhibit C), which establish that on January 7, 2008, Raquel Davis (Raquel) was appointed as the executor of Ronald Albano’s will. The parties submitted a notice of intention to make claim (exhibit F), which indicates that Davis made a claim to defendant for no-fault benefits arising from an accident on May 16, 2008, in which she was involved while operating the 1998 Mercury. Lastly, the parties submitted a letter dated July 14, 2008 (exhibit E) sent by defendant to Davis, wherein defendant denies coverage to Davis under the policy because the accident occurred after the Albanos died and the policy “issued to the Albanos contains a provision that {**62 Misc 3d at 310}limits coverage upon the death of the named insured to the surviving spouse or legal representative of the deceased person, but only with respect to the representative’s legal responsibility to maintain or use the vehicle scheduled on the policy.” The letter further stated that “[s]ince you are neither the legal representative nor surviving spouse of Ronald Albano, the policy will not provide you with coverage as an insured.”

Principles of contract interpretation apply equally to insurance policies (Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 151 [1st Dept 2016], affd 31 NY3d 131 [2018]; State of New York v American Mfrs. Mut. Ins. Co., 188 AD2d 152, 154 [3d Dept 1993]). Thus, in interpreting an insurance policy, the court must determine the rights and obligations of the parties, using the specific language of the policy itself (Gilbane Bldg. Co./TDX Constr. Corp. at 150-151 [“In this action for a judgment declaring the parties’ rights under an insurance policy, this Court must be guided by the rules of contract interpretation because (a)n insurance policy is a contract between the insurer and the insured. As a result, the extent of coverage is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage” (internal quotation marks and citation omitted)]; Sanabria v American Home Assur. Co., 68 NY2d 866, 868 [1986]; State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32-33 [1st Dept 1979]).

When the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court (Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254 [1890]; Stainless, Inc. v Employers Fire Ins. Co., 69 [*3]AD2d 27, 32 [1st Dept 1979], affd 49 NY2d 924 [1980]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]). However, if the language in the policy is ambiguous, the court can use extrinsic evidence to determine the intent of the parties to the policy and resolution of the rights and obligations of the parties is a question of fact, to be determined by the trier of fact (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 173 [1973]; Stainless, Inc. at 32). If the extrinsic evidence{**62 Misc 3d at 311} is conclusory, failing to equivocally resolve the ambiguity in a policy, interpretation of the policy remains a question of law for the court to decide, deciding any ambiguities against the insurer (State of New York at 669; Stainless, Inc. at 32).

In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]; Sanabria at 868). In such a case, the policy should be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162 [2005]; American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277 [1st Dept 1990]; Fifth Ave. Exec. Staffing v Virtual Communities, Inc., 2002 NY Slip Op 50082[U], *1 [App Term, 1st Dept 2002]).

Based on the foregoing, the court finds that at the time of the accident, Davis was not an insured as defined by the policy issued by defendant to the Albanos. As such, Davis was never entitled to no-fault benefits under the instant policy.

As noted above, when interpreting coverage pursuant to an insurance policy, we do so using contract law (Gilbane Bldg. Co./TDX Constr. Corp. at 151; State at 154). Thus, when the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties thereunder is a question of law for the court (Kenyon at 254; Stainless, Inc. at 32; Stasack at 866). In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. at 232; Sanabria at 868), and the policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Here, because it is undisputed that Davis’ accident occurred nine months after the death of the Albanos, it is clear that the demise of the Albanos triggered section IV of the policy, rendering section III of the policy inapplicable and limiting coverage to those persons listed under section IV of the policy. Specifically, upon the Albanos’ death, per the policy the only insureds were a surviving spouse and generally, the Albanos’ legal representative.{**62 Misc 3d at 312} Given that Raquel was appointed as executor of Ronald Albano’s will, Raquel was the only insured under the instant policy and the only person entitled to coverage. Thus, Davis, which as per Kemper’s letter was Raquel’s daughter, was neither a surviving spouse as defined by the policy or a legal representative of the Albanos. Thus, Davis was not an insured under the instant policy. Accordingly, defendant had no obligation to provide no-fault benefits to Davis and properly denied those claims.

Plaintiff’s reliance on section III of the instant policy to extend coverage to Davis is unavailing. While it is true that section III of the policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” and part B of the policy states that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured,’ ” section III is simply inapplicable here since it clearly only applies while the Albanos were alive. Any other interpretation would render the limiting language in section IV of the policy meaningless, which would violate a central tenet of contract law—that a policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank [*4]at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Moreover, even if section III were dispositive, here, the record is bereft of any evidence that Davis was an insured thereunder. To be sure, part B of the policy provided coverage for “ ’bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” However, as noted above, an insured is, inter alia, a “family member,” meaning “a person related to you by blood, marriage or adoption who is a resident of your household.” Here, the record is bereft of any evidence establishing that Davis was related to the Albanos and that if so, she resided in their household. It is hereby ordered that the complaint be dismissed, with prejudice.

Footnotes

Footnote *:Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) and its implementing regulations (11 NYCRR 65-3.1 et seq.).

CV-023737-10

For Plaintiff: Marcote & Associates, P.C.

For Defendant: Freiberg, Peck & Kang, LLP

After conducting a no-fault bench trial on the above captioned matter, this Court makes the following findings and conclusions:

At the commencement of the above captioned trial, the attorneys for the respective parties entered into a Stipulation that contained documents to be relied upon by the defendant’s witness, to wit: letters, correspondence, statements, denials and an insurance policy application. Respective counsels acknowledged having examined all documents contained in the Stipulation and agreed that foundation for their introduction had been established and put into evidence, which was marked as Court Exhibit I, which contained documents marked as Exhibits A through J.

In his opening statement, plaintiff’s counsel stated that the above captioned matter involved a rescission of an automobile policy with regard to no-fault law benefits. Plaintiff’s counsel essentially was contesting whether defendant’s witness’ testimony as to the basis for the rescission of the automobile policy and the documentation contained within Court Exhibit I would be sufficient to establish a foundation for the rescission. Plaintiff’s counsel final representation was that the parties would further stipulate that the plaintiff’s claims for medical services rendered had been mailed to the defendant’s insurance company and as such, that the plaintiff established its prima facie case.

Defendant’s counsel stated that the automobile insurance policy referenced by plaintiff’s counsel was a South Carolina policy which resulted in a conflict of laws between South Carolina and New York State with respect to the rescission of the policy. Defendant’s counsel acknowledged that in establishing an automobile insurance policy rescission issued for another state, New York case law placed the burden on the defendant/insurer to establish that the rescission was actually executed, by establishing that the rescission letter was mailed and that the policy premiums were refunded to the insured.

Defendant’s counsel further argued that New York case law did not impose a burden to [*2]establish that any underlying fraud had occurred before establishing a sister state rescission. Defendant’s counsel nonetheless represented that Court Exhibit I provided some proof of the underlying fraud to which defendant’s witness, Barbara Terry, would testify to. Defendant counsel, in his opening statement, also stated that if the automobile insurance policy rescission was found to be proper then the injured party and even the third party, the plaintiff in the above captioned matter, would be precluded from obtaining any insurance benefits. Finally, counsel for the respective parties further stipulated that on November 7, 2007, the defendant insurer had mailed out a rescission letter with two (2) premium refund checks in the amounts of $16,762.76 and $1,562.00, respectively, sent to the policyholder, which the latter cashed. See Exhibit J contained in Court Exhibit I.

This Court’s review of Exhibit A attached to Court Exhibit I, reveals that the November 15, 1999, application for automobile insurance, purportedly submitted by the insured, Jerome McDowell, only lists his name as the motorist. Furthermore, in the “Applicant’s Statement-Read Before Signing” of Exhibit A, Jerome McDowell, certified that, in relevant part, “(a) all operators of my vehicle have been reported to the company and (b) my principal residence/place of vehicle garaging is in South Carolina, ten (10) or more months each year “

Further contained in the Applicant’s Statement is a representation by the insured, Jerome McDowell, that he has applied to the company ” for a policy of insurance as set forth in this application on the basis of the statements contained herein. I agree that such policy of insurance shall be null and void if such information is false, or misleading, or could materially affect acceptance of the risk by the company ” Exhibit A furthermore contains the November 15, 2006, Renewal Declarations which then added the 2000 Dodge Intrepid to the insurance policy. Exhibit A also contains as an attachment the Personal Automobile Policy- South Carolina. In Part F- General Provisions of the policy, there is a termination clause, paragraph 1, that provides that “this policy may be cancelled during the policy period as follows: iii. If the policy was obtained through willful misrepresentation, or concealment of any material fact or circumstances, or fraud.”

The policy’s termination clause in the insurance policy furthermore states in relevant part, “the statements made by you in the application are deemed to be representations. If any representation is false, misleading or materially affects the acceptance of this risk by us, by either willful misrepresentation, omission, concealment of facts or incorrect statements, this policy may be null and void from its inception, whether before or after the loss. We do not provide coverage for any insured who has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy.”

Also contained within the insurance policy are declarations stating, in relevant part, that by accepting this policy you agree that this policy is issued upon the truth of the information provided by you. Exhibit C of Court Exhibit I contains the March 12, 2007, police accident report listing as the driver of the 2000 Dodge Intrepid, Ngozichakwuu Amadi, residing at 772 Jefferson Avenue, Brooklyn, New York, and listing the vehicle’s owner as Jerome Wallace McDowell, residing at 110 Madison Street, Olanta, South Carolina.

This Court also reviewed Exhibit G of Court Exhibit I, the May 7, 2007, tape recorded telephone interview of Garis McDowell. In said interview, Garis McDowell stated, in relevant part, the following: that he resided at 772 Jefferson Avenue, Brooklyn, New York, for the past approximately seven to eight years; that Ngozichakwuu Amadi, the operator of the 2000 Dodge Intrepid involved in the March 12, 2007, automobile accident has resided together with him for [*3]approximately twelve years and who he considers his common-law wife; that although his brother, Jerome McDowell, the insured and the documented owner of the 2000 Dodge Intrepid, gave him permission to use said vehicle, that the vehicle was kept in Brooklyn, New York, and which he used on and off for years, and that in turn, he had given Ms. Amadi permission on March 12, 2007, to drive the automobile. Garis McDowell further stated that his brother, Jerome McDowell, was aware that he, Garis McDowell, had given Ms. Amadi permission to drive the subject vehicle. Garis McDowell further stated that motor vehicles have been shared by the family. At the conclusion of the interview, Garis McDowell stated that he truthfully answered all questions asked of him and that he understood all questions asked of him.

This Court has reviewed Exhibit H, the September 26, 2007, examination under oath of the insured, Jerome McDowell. In relevant part, Jerome McDowell acknowledged that although he maintained automobile insurance, he denied ever owning the 2000 Dodge Intrepid, although it was insured on his insurance policy, that Mary McFadden, the sister of both himself and Garis McDowell, made all the arrangements to insure the motor vehicles, Jerome could not even state with certainty that he himself was the signatory on the insurance application and that his sister, Mary McFadden had his authorization to sign his name to obtain insurance. Jerome McDowell furthermore stated that as far as the 1960’s all motor vehicle purchases by various family members were placed in his mother’s name and all vehicles were placed on the same insurance policy. Jerome McDowell further stated that Garis McDowell drove the 2000 Dodge Intrepid back and forth from New York to South Carolina, never leaving it for more than three months at a time in South Carolina. Jerome McDowell also stated that he himself never gave permission to his brother Garis McDowell’s “common-law wife”, Ms. Amadi, to drive the subject vehicle as he does not even know her.

This Court then reviewed Exhibit I and Exhibit J, respectively, contained in Court Exhibit I. Exhibit I is the November 7, 2007, rescission letter by the insurer’s Senior Special Investigator, Robert Dwy. Said letter informed the insured, Jerome McDowell, in relevant part, that upon completion of the investigation into the claims, it had been determined that material misrepresentations in the procurement of the automobile insurance policy had been made by Jerome McDowell; that the insurer had issued the insurance policy based upon those misrepresentations in the application for issuance; it appearing that the insured, Jerome McDowell, insured his vehicles for other family members that were never listed on the policy and that the listed vehicles were not garaged in the State of South Carolina.

Senior Special Investigator Robert Dwy concluded his November 7, 2007, letter by stating that “in accordance with the policy terms and as a result of [the] investigation, [the] policy has been voided back to the inception. All moneys paid on [the] policy are being refunded to you. Furthermore, coverage for all claims resultant from the accident of March 12, 2007, is being denied.” Exhibit J documents the payments made to the insured, Jerome McDowell, and received by his attesting to the return of all moneys paid by him on the policy.

On November 17, 2017, a non-jury trial in the above captioned no-fault proceeding was conducted by this Court, wherein in addition to the joint submission into evidence of Court Exhibit I, the defendant insurer called New York Personal Insurance Protection Specialist Barbara Terry as a witness. Ms. Terry testified that her duties for the insurer was to handle any claims that originate for the State of New York pertaining to accidents occurring within New York State. Ms. Terry testified she was familiar with the claim having read the file and that the claim decision was to rescind the policy based on material misrepresentations and fraud. Said [*4]decision was based on the vehicle involved in the accident was not garaged in South Carolina where the policy originated from as it was garaged in New York. This information as to where the subject vehicle was garaged was obtained from statements made by the insured, Jerome McDowell (Exhibit H), and his brother, Garis McDowell (Exhibit G).

Ms. Terry furthermore testified that the insurance policy application never made any indication of Garis McDowell nor Ms. Amadi as additional drivers. Ms. Terry furthermore testified that the failure to list either Garis McDowell or Ms. Amadi as additional drivers was a misrepresentation constituting a material risk to what was insured. As such, Ms. Terry stated that the insurer would not have underwritten the particular policy or insured Jerome McDowell. Ms. Terry also testified that the information provided in the application and for which the insurer relied were misrepresentations made to defraud the insurer.

As to the involvement, if any, of Ms. Amadi pertaining to the misrepresentations made to the insurer, Ms. Terry testified that although the former was not listed as a driver on the policy, that she must have been aware of the misrepresentations on the basis of having resided for twelve years with the insured’s brother, Garis McDowell. This Court rejects Ms. Amadi’s alleged awareness as to the misrepresentation as being based on speculation.

On cross examination, Ms. Terry acknowledged that the insurer received plaintiff’s bills for acupuncture treatments rendered to Ms. Amadi. When questioned as to the insurer issuing delay and/or denial letters until the investigation was completed, Ms. Terry stated that they were sent but other than the November 7, 2007, rescission letter no such letters were introduced into evidence and defendant insurer’s attorney stipulated on the record hat no specific claim denials of any of the bills in dispute were in evidence. Ms. Terry furthermore testified that none of the claims in connection with the March 12, 2007, accident were ever paid. At the conclusion of her testimony, Ms. Terry acknowledged that no statements were made or taken of the driver, Ms. Amadi, nor was there any request that she submit to an examination under oath.

In order for this Court to render a decision, it would in the first instance have to resolve the conflict of laws between New York law and South Carolina Law. According to plaintiff’s counsel, under New York law there is no preclusion of defenses if a claim is not paid or denied within thirty days. And as stipulated by the parties on the record that once the claims in dispute were mailed to the insurance company, the plaintiff has established its prima faie case and is entitled to payment as no payment nor denial of payment was made by the insurer. In effect, the plaintiff is arguing that by mailing out the claim and with the failure of the insurer to pay the claim or dispute payment of the claim within thirty days of receipt of the claim, the insurer is strictly liable for payment under New York’s No-Fault Law.

According to the defendant’s counsel, the argument is that the applicable law to decide the case is not New York law but South Carolina law. Defense counsel argues that South Carolina law allows the rescission of the insurance policy and also allows the rescission to be made retroactively, including after the occurrence of the accident.

The case of Careplus Medical Supply, Inc., as Assignee of Luis Gomez v Selective Insurance Company of America, 25 Misc 3d 48 [App Term 2009], is instructive as it pertains to a conflict of law, the very issue presented in the case at bar relating to an insurance policy which must be resolved by the conflict of laws relevant to contracts. (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 319 [1994]; Matter of Allstate Ins. Co. [Stolarz—New Jersey Mftrs. Ins. Co.], 81 NY2d 219, 226 [1993). The Court of Appeals has adopted a “center of gravity” or “grouping of contacts” approach (Auten v Auten, 308 NY 155, 160 [1954]), which [*5]gives controlling effect to the law of the state that has “the most significant relationship to the transaction and the parties” (Restatement [Second] of Conflict of Laws § 188 [1]). In addition to the traditional determinative factor of the place of contracting, which should be given “heavy weight” in a grouping of contacts analysis (see Haag v Barnes, 9 NY2d 554, 560 [1961]), the places of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties are also to be considered (see Zurich Ins. Co., 84 NY2d at 319; Restatement [Second] of Conflict of Laws § 188 [2]). The accident herein occurred in New York. The relevant insurance policy was negotiated and entered into in South Carolina by the insured who lived in South Carolina, for a vehicle which was to be garaged and registered in South Carolina. The assignor, who was driving the insured’s vehicle at the time of the accident, resided in New York.

While “strong governmental interests . . . [may] be considered” (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d at 226), I find that governmental policy is not an overriding factor under the circumstances presented herein (see e.g. Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). Therefore, upon the application of a “center of gravity” or “grouping of contacts” analysis, I find that the dispositive factors weigh in South Carolina’s favor and, therefore, its law should control (see e.g. Scotland v Allstate Ins. Co., 35 AD3d 584 [2006]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 56).

I do not see how any reasonable inference can be drawn from the record, other than it was the intent of the insured, Jerome McDowell, with the knowledge and cooperation of his brother, Garis McDowell, in making false and untrue answers to the questions asked in the insurance policy application to deliberately deceive the insurer and thereby procure the liability insurance. The intent with which misrepresentations of fact are made in the application for automobile liability insurance, may be deduced from the facts and circumstances surrounding the making of the misrepresentations. The 2000 Dodge Intrepid

This Court further credits the testimony of Ms. Terry that the insurer that had Jerome McDowell answered the questions on the insurance application truthfully the insurer would not have accepted the risk and issued the policy of insurance in question. Clearly there is a higher probability of accidents occurring in a congested metropolitan area than in a small rural area which would impact the premiums charged in the respective areas. The subject motor vehicle was never garaged in South Carolina for at least 10-months out of the calendar year and was not driven by the only listed driver, Jerome McDowell.

Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s evidence at trial included the submission of Court Exhibit I which contained attached documents labelled Exhibits A through J and the testimony of its litigation specialist and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had returned all premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla 1996]; see also Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130 [A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists 2016]).

Although the insurer neither paid nor denied the claims within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), and failed to request verification within [*6]the prescribed time frames (see, 11 NYCRR 65.15 [d] [1], [2]) resulting in the plaintiff then commencing the within action, pursuant to Insurance Law § 5106 (a), to recover its assigned no-fault billing charges the insurer’s untimely disclaimer does not preclude it from denying liability on a strict lack of coverage ground.

I am persuaded that an insurer, despite its failure to reject a claim within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), may assert a lack of coverage defense premised on the fact or founded belief that the automobile policy was void ab initio for fraudulent misrepresentations made in the application for the policy. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition (see, Zappone v Home Ins. Co., supra, 55 NY2d, at 136-137; contrast, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [decided today]). Precedent and logical analysis support the extension of the Zappone exception here. Strict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage.

As held by the Supreme Court of South Carolina in Government Employess Insurance Company v Chavis, 254 S.C. 507, the insurer did not have any duty or obligation to investigate the truthfulness of the insured’s statements made in his insurance application and having no prior knowledge that the insured’s statements were untruthful did not constitute a waiver and did not estop the insurer from rescinding the policy for fraudulent misrepresentation. The insurer met its burden to not only show that the insured’s statements were untrue, but that their falsity was known to him, that they were material to the risk and relied upon by the insurer, and that they were made with intent to mislead and defraud the insurer.

Rescission is not merely a termination of a contractual obligation but is the abrogation or undoing of it from the beginning which seeks to create a situation the same as if no contract ever existed. It was also established that prior to the institution of this lawsuit the insured, Jerome MsDowell, accepted a full refund of the policy premium that he had paid to the insurer.

Therefore, the above captioned lawsuit is dismissed with prejudice.

Dated: July 12, 2018
Hon. Armando Montano
Justice, Supreme Court

21843/2017E

Counsel for Plaintiff: Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.)

Counsel for Defendant: Kopelevich & Feldsherova, P.C. (David Landfair, Esq.)

The following papers numbered 1 to 6 ere read on this motion (Seq. No. __ )

Answering Affidavit and Exhibits No(s). 3, 4

Replying Affidavit and Exhibits No(s). 5, 6

Upon the foregoing papers, the plaintiff Global Liberty Insurance Company of New York (“Plaintiff”) moves for an order (1) granting Plaintiff summary judgment pursuant to CPLR 3212 against Prompt Medical Supply, Inc. (“Prompt”), ordering, adjudging, and decreeing that Prompt is not entitled to no-fault coverage for the motor vehicle accident that occurred on August 24, 2015, since defendant Rosalee Otero (“Otero”) failed to attend properly scheduled IME’s, and (2) permanently staying all Civil Court matters and no-fault arbitrations. Prompt opposes the motion.

Plaintiff provided a policy of insurance to its insured which included a no-fault endorsement providing coverage to an insured, or an eligible injured person, in an amount of at least $50,000 for all necessary expenses resulting from a motor vehicle accident. This policy was in effect on August 24, 2015. On that date, Otero was allegedly involved in a motor vehicle accident and she thereafter made claims as an eligible person under the above-referenced insurance policy. Otero specifically sought no-fault benefits from the named provider defendants, including Prompt. Otero assigned her rights to collect no-fault benefits to the provider defendants, who thereafter submitted no-fault billing to Plaintiff for the services they rendered to Otero.

On October 13, 2015, OmniMed Evaluation Services (“OmniMed”), on behalf of Plaintiff, sent Otero a letter requesting that she attend a chiropractor/acupuncture independent medical examination (“IME”) scheduled for October 26, 2015. Otero failed to appear for the duly scheduled IME. On October 26, 2015, OmniMed sent Otero a second letter requesting that she attend a chiropractor/acupuncture IME on November 9, 2015. Again, Otero failed to attend the duly scheduled IME. Plaintiff states that the first no-fault billing on this case was received from the answering defendant on October 13, 2015. Plaintiff thereafter commenced this declaratory judgment action and now moves for summary judgment.

Under New York Code of Rules and Regulations 11 (“NYCRR”), §65-1.1, the failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonable require” is a breach of a condition precedent to coverage under a No-Fault policy. Accordingly, when the [*2]defendants’ assignor Otero failed to appear for the requested IMEs, Plaintiff had the right to deny all claims retroactively to the date of loss (see 11 NYCRR §65-3.8[c]). Otero’s non-appearance at the IMEs constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident, to any parties potentially entitled to benefits under Insurance Law §5103 or their assignees (11 NYCRR §65-1.1(a). See NY Ins. Law §5103[d] and [h]; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept. 2011], lv. den., 17 NY3d 705 [2011]; Mapfire Ins. Co. of NY v. Manoo, 140 AD3d 468 [1st Dept. 2016]). Plaintiff’s submissions established its entitlement to summary judgment, as it provided evidence that it sent notices scheduling Otero’s IME examination on two occasions, and Otero failed to appear. Plaintiff also provided sufficient evidence that it complied with the procedures and time frames set forth in the no-fault implementing regulations (Unitrin, 82 AD3d at 560]). Plaintiff has therefore demonstrated that it is entitled to disclaim coverage to an eligible insured and to his or her assignees, retroactive to the date of loss.

In opposition to the motion, Prompt first asserts that the affidavits from Regina Abbatiello and Karin Bruford are not in admissible form. Prompt alleges that the affidavits failed to adequately show that the affiants proved their identities to the notary. However, the notary on both affidavits contains the language “sworn to before me” on a date certain. A notary public is “presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law” where, as here, there is no showing to the contrary (see Collins v. AA Truck Renting Corp., 209 AD2d 363 [1st Dept. 1994]). Prompt also asserts that the captions on two of the affidavits are incorrect. However Prompt does not claim to have sustained any prejudice as a result of this error, and it was able to provide substantive opposition to this motion. “Defects, mistakes, and irregularities” may be ignored where, as here, there is no showing of prejudice (see First Wisconsin Trust Co. v. Hakiman, 237 AD2d 249, 249 [2nd Dept. 1997]).

Prompt next argues that Plaintiff failed to demonstrate that it properly scheduled the IME within 30 days of receipt of billing in accordance with 11 NYCRR §65-3.5(d). This contention is unavailing. Plaintiff has supplied an affidavit from Regina Abbatiello, a no-fault claims examiner, who stated that she has personal knowledge of Plaintiff’s office procedures and processing of no-fault claims. She asserts that, in this case, the first no-fault billing was received from the answering defendant on October 13, 2015. The first IME was scheduled for October 26, 2015, within 30 days of receipt of that billing. Contrary to Prompt’s contentions, these sworn assertions are sufficient to demonstrate Plaintiff’s compliance with the statute (compare American Transit Inc. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept. 2015][plaintiff failed to establish that it complied with 30-day requirement where it provided “no evidence in affidavit form or any other form” indicating the date upon which plaintiff received the prescribed verification form from defendant]). Prompt failed to submit any admissible evidence refuting the allegations in the Abbatiello affidavit.

Prompt contends that Plaintiff has failed to establish the proper mailing of the IME scheduling letters. Prompt alleges that the affidavit from Karin Bruford of OmniMed is insufficient because she fails to allege that she had personal knowledge of the standard used to mail scheduling letters, and she fails to provide substantive information regarding how mailing addresses are verified or how postage is affixed to mailings, or how Plaintiff delivers mail into the custody of USPS.

After review of the challenged affidavit and accompanying submissions, this Court finds that Plaintiff has sufficiently carried its burden of proof. It order to raise the presumption of proper mailing, a movant may either provide “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013], citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept. 2001]). In this case, the Bruford affidavit competently explains the office procedure for affixing postage and states that clerical staff in her office transfer mail to the exclusive possession of the United States Postal [*3]Service. She affirms that the IME letters in this case were sent to Otero’s address, which was 230 New Lots Ave., 6D, Brooklyn, New York 11207. Plaintiff has also supplied mailing ledgers date-stamped and signed by a United States Postal Service employee. Each of these ledgers indicates that mailings were sent to Otero and her attorney’s office. This evidence, when considered alongside the Bruford affidavit, sufficiently carried Plaintiff’s burden of demonstrating that the IME letters were properly mailed (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [testimony, certificate of mailing, and signed and stamped mailing ledger provided proof of actual mailing]). Furthermore, the foregoing evidence establishes that the mailings were sent to Otero’s proper address. While Plaintiff’s counsel and Abbattiello state that Otero’s address was “230 Lotts Avenue, Apt. 4D, Brooklyn, NY 11207,” Otero’s application for no-fault benefits sent to Plaintiff lists her address as “230 New Lots Avenue, Apt. 6D, Brooklyn, NY 11207” which is the address the mailings were sent to. There is no evidence that Plaintiff was ever made aware of the different address that Otero provided to Prompt in her assignment of benefits form, which post-dates the date of the two mailings.

Finally, Prompt contends that the affidavit from Plaintiff’s IME physician is insufficient to establish that Otero failed to appear for duly-scheduled appointments. This Court disagrees. Plaintiff’s physician Dr. Antionette Perrie states that she was personally present at her office on the IME dates, but the claimant failed to appear. The doctor notes that it was her office’s practice to note a claimant’s non-appearance, and she can say with certainty that claimant failed to appear on the appointment dates. The foregoing contentions are sufficient to establish the basis for the doctor’s personal knowledge that claimant-Otero failed to appear for duly-scheduled IME appointments (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013]). The physician affidavit is substantially similar to the one presented in support of a motion for summary judgment in American Transit Ins. Co. v. Clark, New York County Index No. 152876/2012 (see Ronald G. Lafranchi Affidavit dated April 7, 2013; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment). On appeal, while the First Department determined that the plaintiff’s motion should have been denied on other grounds, the Court did find that the plaintiff had adequately established that the claimant failed to appear for duly-scheduled IME’s (131 AD3d 840 [1st Dept. 2015]). Furthermore, in American Tr. Ins. Co. v. Solorzano, the plaintiff’s IME doctor submitted an affidavit that only stated, in pertinent part, “[claimant] was scheduled to appear for a Medical Examination on Monday, February 28, 2011 and Monday, March 14, 2011 pursuant to requests made by Independent Physical Exam Referrals, Inc. The claimant failed to comply with the requests and did not appear on those dates” (see Dr. Cirino G. Sesto Affidavit, dated May 9, 2011; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment; Bronx County Index No. 307769/2011). The First Department found that this affidavit, along with plaintiff’s other submissions, was sufficient to demonstrate that the claimant failed to appear for duly scheduled IME’s (108 AD3d 449 [1st Dept. 2013). In this case, this Court similarly finds that the affidavits of Plaintiff’s IME physician and from Ms. Bruford are sufficient to demonstrate that claimant Otero failed to appear for her scheduled IMEs.

Accordingly, it is hereby,

ORDERED, that Plaintiff’s motion for summary judgment against defendant Prompt is granted, and it is further,

ORDERED and DECLARED, that Prompt is not entitled to no-fault coverage for the subject motor vehicle accident that occurred on August 24, 2015, since claimant Otero failed to attend properly scheduled IMEs, and it is further,

ORDERED, that any related Civil Court matters and no-fault arbitrations are permanently stayed.

This constitutes the Decision and Order of this Court.

Dated: June 15, 2018

[*4]Hon.___________

J.S.C.

27526/2017E

Counsel for Petitioner: Jason Tenenbaum, Esq.

The following papers numbered 1 to _2_ Read on this motion, VACATE ARBITRATION AWARD Noticed on September 14, 2017 and duly submitted on the Motion Calendar of September 14, 2017:

PAPERS NUMBERED

Notice of Motion- Exhibits and Affidavits Annexed 1,2

Upon the foregoing papers, the petitioner Maidstone Insurance Company (“Petitioner”) seeks an order (1) pursuant to CPLR 7511, vacating the award of the master arbitrator that affirmed an award of the lower arbitrator finding that the respondent Medical Records Retrieval Inc., d/b/a Kamara Medical Supplies, a/a/o Sandra Pereira (“Respondent”) was entitled to compensation for services performed (a) from March 12, 2016 through April 22, 2016, in the sum of $3,750.00; (b) from March 12, 2016 until April 1, 2016, in the sum of $1,323.00; and (c) from March 12, 2016 in the sum of $19.50 and $34.22, and entering judgment in favor of Petitioner vacating the award, and remanding the matter to a different arbitrator to compute the amount due and owing under the Medicaid fee schedule, which would be 1/6 times the wholesale price of the CPM and CTU, divided by 30, times the amount of days the items were rented, or $1031.27; (2) such other and further relief as this Court may deem just, proper, and equitable, and (3) costs and disbursements as taxed by the clerk, including Petitioner’s $325 master arbitration fee. The petition is unopposed.

In cases of compulsory arbitration, judicial review of a master arbitrator’s award is restricted to the grounds set forth in Article 75 of the CPLR (see Matter of Petrofsky, 54 NY2d [*2]207, 210-11 [1981]). The “governing consideration is ‘whether the decision was rational or had a plausible basis'” (Curley v. State Farm Ins. Co., 269 AD2d 240, 242 [1st Dept. 2000], citing Petrofsky at 211). “Vacatur of an arbitrator’s award is statutorily limited to occasions involving fraud, corruption or bias… or occasions where the arbitrator exceeded his or her power, or so imperfectly executed it so that a final and definite award was not made” (id., citing CPLR 7511[b]; Lopez 375 v. New York City Health and Hospitals Corp., 257 AD2d 530 [1st Dept. 1999]). The party seeking vacatur must prove that the award was irrational, in violation of public policy, or in excess of the arbitrator’s powers (id., citing In re Travelers Insurance Company v. Job, 239 AD2d 289 [1st Dept. 1997]). Furthermore, “‘an arbitrator’s award will not be set side even though the arbitrator misconstrues or disregards [the proof] or misapplies substantive rules of law, unless it violates strong public policy or is totally irrational'” (id., quoting Sims v. Siegelson, 246 AD2d 374, 376 [1st Dept. 1998]). While an arbitration award may be deemed arbitrary and capricious where it does not follow “clear precedent,” (Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432, [1st Dept. 2000]), vacatur should not be granted if the decision had a reasonable hypothesis and the controlling issue is “unsettled and subject to conflicting court decisions” (see Motor Vehicle Accident Indemnification Corp. v. Aetna Casualty and Surety Co., 89 NY2d 214, 224 [1996]).

In this matter, although the petition is unopposed, it must be denied because Petitioner has failed to carry its initial burden of demonstrating that vacatur of the arbitration awards is warranted. Petitioner received billing for a CPM knee machine (Code E0935) in the sum of $3,570.00, representing 42 days of usage (March 12, 2016 – April 22, 2016), at the billed rate of $85.00 per day, and billing for a water circulating pump (Code E0236) in the sum of $1,323.00, representing 21 days of usage (March 12, 2016 – April 1, 2016), billed at a rate of $125.00 per day. Petitioner was billed for other services as well, but it only disputes the billing rate for the aforementioned two items. Petitioner asserted that this billing was in excess of the applicable fee schedule. At the arbitration hearing, and in the instant petition, Petitioner argued that the applicable fee schedule for the above-referenced durable medical equipment (DME) is limited to 1/6th of the acquisition cost of the equipment on a monthly basis. In support of this position, Petitioner relied primarily on what it characterizes are “opinion letters” from the New York State Department of Health (“DOH”) and the Workers’ Compensation Board (“WCB”), as well as a 2016 Queens County Supreme Court decision. Petitioner also submits “frequently asked questions” the were published on the WCB website which states that the reimbursement rate of CPM (E0935) rental shall not exceed the amount specified in the Durable Medical Equipment Manual – Policy Guidelines – see section on “Rental of Durable Medical Equipment.” Those policy guidelines state – “for DME items that have been assigned a Maximum Reimbursement Amount (MRA), the rental fee is 10%^[FN1] of the listed MRA. For DME items that do not have a MRA, the rental fee is calculated at 10% of the equipment provider’s acquisition cost.” Petitioner argued that its documentation established that where, as here, the DME items have not been assigned a Maximum Reimbursement Amount (“MRA”), the rental fee is calculated at 1/6th of the equipment provider’s acquisition cost.

The lower arbitrator considered these arguments, and specifically found that the DME at issue – the CPM and the CTU – were not listed in the Medicaid DME fee schedule, and no specific amount had been set by the DOH for the monthly rental of those items. While the arbitrator understood the calculations made by Petitioners’ professional coder, he noted that coder’s methodology was flawed because the DOH had indicated in a letter dated June 8, 2016, that according to 12 NYCRR section 442.2(g), the Medicaid Policy Guidelines and Medical Policy Manual are not to be included in the Medicaid DME fee schedule except to the extent that such documents contain the Medicaid DME fee schedule. The lower arbitrator thus rejected Petitioner’s fee schedule defense, and found that the billing was proper in accordance with 12 NYCRR 442.2. The master arbitrator affirmed these findings, holding that the arbitration interpretation of the evidence and applicable law pertaining to this fee schedule dispute was not arbitrary, capricious, or contrary to law.

After review of the instant petition, this Court finds that the arbitration awards were supported by a rational and plausible basis and were not contrary to clear precedent. 12 NYCRR 442.2(b) provides that “[t]he maximum permissible monthly charge for such equipment, supplies and services provided on a rental basis shall not exceed the lower of the monthly rental charge to the general public or the price determined by the New York State Department of Health area office. The total accumulated monthly rental charges shall not exceed the fee amount allowed under the Medicaid fee schedule” (emphasis added). Petitioner’s submissions fail to establish that the New York DOH area office has set or determined a price for the DME at issue. The June 8, 2016 letter from the DOH senior attorney established that the earlier July 2014 letter was clearly not an instance where DOH made such a determination. Furthermore, the correspondence from the WCB employee did not constitute an official “interpretation of a regulation” or an “informal opinion” of the agency’s regulations (compare Matter of Elcor Health Servs. v. Novello, 100 NY2d 273, 280 [2003]; A.M. Medical Services, P.C. v. Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2nd Dept. 2012]). Contrary to Petitioners’ contentions, the arbitrator also had a rational basis for determining that the Medicaid policy guidelines are inapplicable to these facts (see 12 NYCRR 442.2[g]). Even if the Medicaid guidelines are applicable here, as noted in the WCB “FAQ,” they only state that the “1/6th” (10% as of July 1, 2016) calculation of rental fee applies where the DME items “do not have a MRA.” It is rational to conclude that this calculation only applies to DME items that are listed in the fee schedule but are not assigned a MRA value. Where, as here, the DME items are not listed at all on the Medicaid fee schedule, the Department of Health has not determined a monthly rental charge. Under these circumstances, the applicable monthly rental charge will be the rate charged to the general public (12 NYCRR §442.2[b]). Petitioner argues that its contentions further the cost containment policies behind the no-fault system, however, engaging in such an analysis goes beyond the narrow issue that is before this Court (see Curley v. State Farm Ins. Co., 269 AD2d 240, 242).

Accordingly, it is hereby

ORDERED, that the petition is denied, and the Master Arbitration Award is confirmed (CPLR 7511[e]).

This constitutes the Decision and Order of this Court.

Dated: April 4, 2018
Hon. Mary Ann Brigantti, J.S.C.

Footnotes

Footnote 1:According to Petitioners’ professional coder, the Medicaid Policy Guidelines changed the reimbursement formula from 1/6th to 10% of the acquisition cost on July 1, 2016.

702062/16

Counsel for Plaintiff: Law Offices of Gabriel & Shapiro, LLC

Counsel for Defendant: Rossillo & Licata, PC

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Saliently, defendant avers that insofar as it paid the claims submitted by plaintiff in accordance with the relevant fee schedule for such services, it has established its fee schedule defense thereby warranting summary judgment in defendant’s favor. Plaintiff opposes the instant motion asserting that insofar as defendant’s coder misapplies the relevant fee schedule, the amounts paid to plaintiff were insufficient. Thus, plaintiff contends that questions of fact preclude summary judgment.

For the reasons that follow hereinafter, defendant’s motion is granted.

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On August 9, 2015, CHARLES ROBINSON (Robinson) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained therein. Robinson was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Robinson assigned to plaintiff. On September 21, 2015 plaintiff provided treatment to Robinson totaling $3,900, said treatment was covered by defendant’s policy, was billed to defendant, but was nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, [*2]49 NY2d 557, 562 [1980]). A defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds, Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly and generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit it in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a motion for summary judgment the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and [*3]extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered (11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (id.; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]). Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.”]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens at 584 New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 [“Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days.”]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700 [“Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run.”]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a [*4]matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17—18 [App Term 2007] [“In the instant case, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that 18 items are properly addressed and mailed. We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]) should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]), or that denial within the 30 day prescribed by law wasn’t given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control [*5]or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A), *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant’s business records established defendant’s defense – timely denial (id. at 433-434)^[FN2] .

With respect to the value of medical services rendered, 11 NYCRR 65-3.8(g) limits the amounts payable to those promulgated by the chairman of the worker’s compensation board for industrial accidents. To be sure, Insurance Law § 5108(a) states that

[t]he charges for services specified in paragraph one of subsection (a) of section five thousand one hundred two of this article and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge.

Thus, Insurance Law § 5108(a) limits a medical provider’s recovery under the no-fault portion of an insurance policy, and said limitation is further reiterated within 11 NYCRR 65-3.8(g)(ii), which obviates an insurer’s obligation to pay for services exceeding the amounts allowed under Insurance Law § 5108(a) (see 11 NYCRR 65-3.8[g][ii][“Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated [*6]thereunder for services rendered by medical providers.”]).

Thus, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule and such defense is available even if payment or denial are not tendered within 30 days of the submission (Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], *1 [App Term 2018] [“Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014.”]; Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 143(A), *1 [App Term 2017] [“Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion.”]; Surgicare Surgical Assoc. v Natl. Interstate Ins. Co., 50 Misc 3d 85, 87 [App Term 2015]). Accordingly, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1 [“Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractor.”]; Surgicare Surgical Assoc. at 86 [“Plaintiff billed $10,800 for the services (associated with arthroscopic knee surgery), but defendant-insurer paid only $5,996.67 on the claim, an amount in accordance with the New Jersey Fee Schedule.”]). Thus, an insured establishes its fee schedule defense when it tenders an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. v Am. Tr. Ins. Co., 56 Misc 3d 134(A), *1 [App Term 2017]; Compas Med., P.C. v Am. Tr. Ins. Co., 56 Misc 3d 133(A), *1 [App Term 2017]; Sama Physical Therapy, P.C. v Am. Tr. Ins. Co., 53 Misc 3d 129(A), *1 [App Term 2016]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140(A), *1 [App Term 2015]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127(A), *2 [App Term 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23, 25 [App Term 2009]).

Defendant’s motion for summary judgment is granted insofar as the evidence tendered in support thereof establishes that defendant timely paid plaintiff’s claim in accordance with the relevant fee schedule. While the amount paid was less than the amount billed, defendant establishes that the amount billed was in excess of the amount allowed for the procedure actually performed under the relevant fee schedule.

In support of its motion, defendant submits an affidavit by Peg Kohle (Kohle), defendant’s Claim Specialist, who states, in pertinent part, as follows: Since January 2015, Kohle has been employed by defendant as a Claims Specialist in defendant’s no-fault department. Kohle is personally familiar with defendant’s business practice as it relates to the processing New York Personal Injury Claims (PIP), including defendant’s Enterprise Claims System (ECS) and the creation of all documents related to defendant’s decisions concerning PIP claims. After detailing defendant’s custom and practice with respect to receipt, processing, paying and/or denying PIP claims submitted to it by medical providers, Kohle describes documents relevant to this action, appended to her affidavit, and which she incorporates by reference. Specifically, Kohle states that on November 2, 2015, defendant received a bill from plaintiff for medical treatment it provided to Robinson on September 21, 2015. As per the form, plaintiff sought no-fault reimbursement from defendant in the amount of $3,900. A review of defendant’s claim file indicates that Robinson had been involved in an accident on August 9, 2015 and made a no-fault claim from defendant in connection therewith. Kohle states that upon defendant’s review of the bill, defendant paid the claim pursuant to the New York State Workers Compensation Fee Schedule. Specifically, on December 1, 2015, defendant denied a portion of the claim while concomitantly paying $291.32 to plaintiff. Defendant’s denial of the claim was memorialized in a denial form sent to plaintiff and within an explanation of review form appended thereto. Kohle asserts that the foregoing forms are defendant’s business records, generated in the regular course of defendant’s business records.

Defendant also submits an affidavit by Charles Campanelli (Campanelli), Operations Manager for Signet Claim Solutions, LLC (Signet), who states, in pertinent part, as follows: Signet’s business includes the retention, upon request, of fee schedule and medical coding experts to perform reviews of medical records and bills for purposes of determining whether services were billed in accordance with the relevant fee schedule. Defendant is Signet’s client and was retained to hire an expert to review a plaintiff’s bill for medical services provided to Robinson. In connection with defendant’s retention of Signet, defendant provided relevant records to Signet, including plaintiff’s bill and the records provided by plaintiff with the same. Signet then retained Mercy Acuna (Acuna), an expert, to review the foregoing records, and who then provided Signet with a report memorializing her opinion. Acuna’s report was created and retained in the regular course of Signet’s business and said report was appended to Campanelli’s affidavit.

Defendant submits an affidavit by Acuna, wherein she incorporates by reference, her report within which she proffers her opinion regarding plaintiff’s bill for services rendered to Robinson. Acuna states that her report is accurate, that the opinion in her report is based on her education, training and experience as well as a review of plaintiff’s bill, the records appended thereto and the relevant New York State Workers Compensation Chiropractic Fee Schedule.

Defendant submits the bill referenced by Kohle, which indicates that on September 21, 2015, it treated Robinson. Specifically, the bill indicates that it performed Pain Fiber Nerve Conduction Studies (PFNCS) upon Robinson’s upper and lower extremities, that 9599 was the corresponding Fee Schedule Treatment Code and that the value of said services was $3,900. The reports appended to the bill indicate upon which what parts of the body the procedures were performed and the results thereof. Defendant also submits the denial of claim form and explanation of review form referenced by Kohle, which indicate that on December 1, 2015, it paid plaintiff $291.32 for the services rendered to Robinson. The explanation of review form indicates that $291.32 represents payment for the tests performed at $145.66 for the upper extremities and $145.66 for the lower extremities. Per defendant’s form, the foregoing rates are in accordance with the relevant fee schedule.

Defendant submits Acuna’s report and the documents upon which she relied (plaintiff’s reports regarding the tests performed upon Robinson, AMA CPT Assistant, New York Workers’ Compensation Chiropractic Fee Schedule, information regarding the AXON II Neural Scanner). Acuna states that she is a Registered Nurse and also a member of the American Academy of Professional Coders (AAPC), a national coding certification organization. Acuna has also worked as a coding reimbursement specialist since 1997 and in order to join AAPC took classes in coding and compliance. Based on Acuna’s review of the foregoing documents, she states that because PFNCS testing only measures amplitude and not velocity/latency, the test performed by plaintiff on Robinson was a quantitative sensory test. As per the AMA CPT Assistant, Acuna states that the appropriate treatment/billing code for the test performed is 0110T. According to the New York Workers’ Compensation Chiropractic Fee Schedule, the foregoing treatment code has no fixed Relative Value and instead, contains a “BR” under the Relative Value column which means the billing physician has to “establish a unit value consistent in relativity with other unit values shown in the schedule.” Acuna opines that the closest corresponding treatment code for the testing performed is 95904 which has a Relative Value of $12.60. Since the Conversion Factor in the schedule applicable to plaintiff is $5.78 (Region 4), the allowable fee for the testing performed is $72.83 per extremity (Relative Value x Conversion Factor), for a total of $145.66 for the lower extremity and an additional $145.66 for the upper extremity. Thus, as per the fee schedule, plaintiff was entitled to receive and, did in fact, receive $291.42 for the tests performed.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment insofar as the foregoing evidence establishes that defendant timely paid the instant claim in accordance with the relevant fee schedule.

Again, as noted above, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule (Oleg’s Acupuncture, P.C. at *1; Z.M.S. & [*7]Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 87). Thus, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 86). An insured establishes its fee schedule defense by tendering an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. at *1; Compas Med., P.C. at *1; Sama Physical Therapy, P.C. at *1; GBI Acupuncture, P.C. at *1; Raz Acupuncture, P.C. at *2; Great Wall Acupuncture, P.C. at 25).

Here, Acuna, an expert coder opines, based on a review of plaintiff’s bills, the reports of treatment rendered to Robinson, and ample reference material, including the applicable fee schedule, that the amounts billed by plaintiff are at variance and in excess of the relevant fee schedule such that the amounts paid by defendant were appropriate and in accordance to the fee schedule. As such, defendant establishes prima facie entitlement to summary judgment.

Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Significantly, plaintiff’s submission is bereft of any evidence and it proffers no countervailing expert opinion. Instead, plaintiff, by counsel, actually agrees with the bulk of Acuna’s opinion – conceding that its initial treatment code was improper, that 0110T is the appropriate code for the tests performed, but that 95864 is the most appropriate code under the relevant fee schedule. As such, plaintiff urges that it is entitled to compensation for each nerve tested rather than for just the lower and upper extremities.

Plaintiff’s opposition, bereft of any evidence to support its assertion is insufficient to raise an issue of fact (LMS Acupuncture, P.C. v Geico Ins. Co., 42 Misc 3d 150(A), *1 [App Term 2014] [“With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.” (internal citations omitted).]). In light of Acuna’s affidavit and a review of the literature upon which she relies, it is clear that medical billing in accordance with the relevant fee schedule requires an expertise beyond the ken of the layman (De Long v Erie County, 60 NY2d 296, 307 [1983] [“The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.”]). Thus, this Court holds that an issue of fact with regard to her determination – dispositive in this case – can only be raised by the divergent opinion of another expert.

Indeed, assuming arguendo, that here, plaintiff’s attorney affirmation could, by itself, controvert Acuna’s opinion, plaintiff’s scant and conclusory attack on her opinion would nevertheless fall woefully short. For example, counsel makes no effort to reference any relevant documentation for his position that 95864 is the more appropriate billing code. Instead, citing to nothing, he merely asserts the same. Nor does plaintiff’s assertion that Acuna’s opinion is not premised on facts in the record avail it. It is true that expert testimony must be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence (Cassano v. Hagstrom, 5 NY2d 643, 646 [1959]; Gomez v New York City Hous. Auth., 217 AD2d 110, 117 [1995]; Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [1982]), and here, as discussed in detail, Acuna’s opinion is firmly grounded on facts in the record. Moreover, the documents from which those facts were extrapolated were properly before the Court. Thus, defendant’s motion is granted. It is hereby

ORDERED that the plaintiff’s complaint be dismissed, with prejudice. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon all plaintiff within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Fidel E. Gomez, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: It bears mentioning that the court’s reasoning in Hosp. for Joint Diseases – that “[p]ersonal knowledge of [defendant’s] documents, their history, or specific content are not necessarily required of a document custodian” (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment – is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

67257/10

Counsel for Plaintiff: Leon Kucherovsky, Esq.

Counsel for Defendant: Peter C. Merani, PC

In this action for the payment of first-party benefits – no fault payments for medical treatments – defendant moves seeking an order pursuant to, inter alia, CPLR § 5019(a), modifying this Court’s Judgment, entered November 5, 2015. Saliently, defendant avers that the Judgment should be modified and the amount therein reduced to zero on grounds that defendant’s insured exhausted no-fault the limits of the relevant policy. Plaintiff opposes the instant motion asserting that defendant’s failure to raise the instant defense issue at the time this case was tried – despite being aware of the same – precludes application of the same.

For the reasons that follow hereinafter, defendant’s motion is denied.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint and exhibits appended thereto allege, in relevant part, the following: On September 2, 2009, LESSIE BENJAMIN (Benjamin) sought medical treatment from plaintiff for injuries sustained in a motor vehicle accident occurring on August 4, 2009. Lessie was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Lessie assigned to plaintiff. The treatments provided by defendant to Lessie totaled $2,272.66, were covered by defendants’s policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

On May 15, 2015 after a trial, this Court (Franco, J.) issued a decision finding that based on the relevant fee schedule, of the sums sought by plaintiff, it was entitled to $588 plus costs and interest. The Court directed a judgment, and the same was entered on November 5, 2015. [*2]On January 14, 2016, plaintiff executed the judgment upon defendant’s assets.

Defendant’s motion seeking, inter alia, modification of the judgment pursuant to CPLR § 5019(a) – reducing the amount of the judgment to zero on grounds that Lessie has exhausted the relevant policy – is denied. Significantly, as will be discussed below, while defendant’s liability for any medical claims under the no-fault portion of its policy is generally limited to $50,000, here, it is alleged and unrebutted that defendant was aware that it had exhausted its policy prior to the entry of the relevant judgment but failed to raise the issue at trial.

It is well settled that [a]n insurer is not required to pay a claim where the policy limits have been exhausted” (Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]). Stated differently, where an insurer has paid the full monetary limits set forth in the relevant policy, its duties under the contract of insurance cease (id. at 534; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Presbyt. Hosp. in City of New York v Liberty Mut. Ins. Co., 216 AD2d 448, 448 [2d Dept 1995]; Presbyt. Hosp. in the City of New York v Gen. Acc. Ins. Co. of Am., 229 AD2d 479, 480 [2d Dept 1996]).

Indeed, in the context of actions seeking the payment of medical expenses under the no-fault portions of an insurance policy, the foregoing is no less true. Thus, even when a judgment is issued against an insurer requiring it to pay for medical expenses incurred by its insured under the no-fault provisions of its insurance policy, if the insurer has exhausted the amount for which it is liable under the policy, the judgment can generally not be enforced (St. Barnabas Hosp. v Country Wide Ins. Co., 79 AD3d 732, 733 [2d Dept 2010]; Hosp. for Joint Diseases v Hertz Corp., 22 AD3d 724, 725 [2d Dept 2005]; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000] [“The arbitrators exceeded their authority in directing the payment of the $2,250 at issue, as the award was in excess of the $50,000 limit of the subject insurance policy. When an insurer has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (internal citation and quotation marks omitted).]; Presbyt. Hosp. in the City of New York, 229 AD2d at 480 [2d Dept 1996]; Presbyt. Hosp. in City of New York, 216 AD2d at 448; Allstate Prop. and Cas. Ins. Co. v Northeast Anesthesia and Pain Mgt., 51 Misc 3d 149(A), *1 [App Term 2016]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137(A), *1 [App Term 2015]; Allstate Ins. Co. v Demoura, 30 Misc 3d 145(A), *1 [App Term 2011]). Thus, when an insured establishes that it has exhausted the no-fault limits under its policy because it paid all amounts allowed under the policy to medical providers, it is generally not liable for any other amounts (Hosp. for Joint Diseases at 725 [“The evidence submitted in support of the motion established, among other things, that the defendants’ payments to other health providers and the defendants’ payment of the plaintiff’s initial claim totaled $23,744.21, and that the defendants forwarded to the plaintiff the remaining amount they were obligated to pay under the policy, namely, $26,255.79, which resulted in the $50,000 policy limit being exhausted. The Supreme Court granted the defendants’ motion, finding that the defendants’ payment satisfied the judgment and exhausted the policy limit, and that the information subpoena was rendered academic.”]; Countrywide Ins. Co. at 245;Harmonic Physical Therapy, P.C. at *1).

The foregoing defense, however, may be waived. With regard to when an insured is required to interpose the defense of policy exhaustion to prevent the payment of outstanding claims, the case law appears to be clear. Indeed, the appellate authority on this issue as well as trial court precedent establishes that defendant’s failure to raise the issue – when known – constitutes waiver. In Mount Sinai Hosp. v Dust Tr., Inc. (104 AD3d 823, 825 [2d Dept 2013]), defendant sought to modify a judgment issued against it after plaintiff was granted summary judgment on the issue of whether defendant – an insurer – owed plaintiff – a medical provider – money under a no-fault policy for medical services rendered to defendant’s insured (id. at 824). The court held that insofar as defendant failed to assert that it had exhausted the no-fault limits of its policy in opposition to plaintiff’s motion for summary judgment, only raising it after it sought to modify the judgment, such modification was barred (id. at 825 [“The issue of partial exhaustion of the defendant’s coverage was raised for the first time after the judgment was [*3]entered, even though the plaintiff had previously moved for summary judgment on the complaint, seeking a certain amount of benefits . . . The failure to present such reasonable justification by itself requires denial of the defendant’s motion.”]). Clearly, then, the holding in Mount Sinai Hosp., which deems the defense of policy exhaustion waived when known and not raised in relation to summary judgment also requires waiver when the defense is known prior to trial and not raised. While the appellate courts in the First Department have yet to address this issue, one case in this very Court has decided the issue – on identical facts – in a plaintiff’s favor.

In Big Apple Ortho Medical Supply, Inc. V Allstate Insurance Company (NYLJ 1202756440119, *1 [Civil Ct, Bronx County 2016]), the court declined to modify the judgment issued against an insurer for the payment of no-fault benefits on grounds that the defense of policy exhaustion was raised for the first time in a post judgment motion (id. at *2-3). Significantly, the court there concluded that defendant could have raised the defense at trial but failed to do so (id.). Other trial courts have also declined to modify a judgment requiring the payment of no-fault benefits when the defense is raised after judgment is rendered but could have been raised prior thereto (Ortho Passive Motion Inc. v Allstate Ins. Co. 55 Misc 3d 794, 797 [NY Dist Ct 2017]). In Ortho Passive Motion Inc., the court denied defendant’s post judgment motion to modify and reduce the same to zero on grounds that the exhaustion of the policy’s no-fault limits precluded payment on the judgment (id. at 795). The Court denied the application, concluding that defendant was aware of the fact that it could not satisfy the judgment at the time the case was tried and in failing to raise it, could not be accorded the relief sought (id. at 895).

The dearth of dispositive appellate authority in this department is, of course clear, and any argument to the contrary is unavailing. Indeed, in neither Harmonic Physical Therapy, P.C., (47 Misc 3d 137[A]) nor Demoura (30 Misc 3d 145[A]), did the Appellate Term, First Department have occasion to address the issue at bar – whether failing to raise the defense of policy exhaustion prior to judgment, when the same was known at the time of trial – bars the applicability of the defense. At best, the court in Demoura held that “[a] defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period” (id. at 145). This of course does not avail a defendant since it is one thing to fail to raise a defense prior to the initiation of an action, without having such failure constitute waiver, and quite another to raise the same after a judgment in an action has been issued. Especially when the defendant had prior knowledge that its policy had been exhausted.

Here, in support of its motion defendant submits the policy issued to Lessie, which indicates at Page 12, under the section titled “Limits of Liability” that

[t]he limit of our liability for Medical Expense Benefits as stated on the Policy Declarations, is the maximum we will pay per any one insured person for any motor vehicle accident.

Notably, the policy declarations submitted by defendant fail to indicate the limits of any no-fault benefits under the policy. Defendant also submits a host of documents – checks – indicating that it paid in excess of $50,000 for medical services on behalf of Lessie, its insured. According to the checks, all payments were made prior to 2011.

Based on the foregoing, defendant’s motion must be denied. First, defendant fails to establish that the policy at issue in fact limits no-fault benefits to $50,000. As noted above, the policy declaration documents submitted are bereft of any indication that the policy had a no-fault benefit, let alone the limits thereof.^[FN2]

Notwithstanding the foregoing, defendant’s motion must be denied for a more substantive reason. On this record, the assertion that when this case was tried in 2015, defendant was aware [*4]that its policy had been exhausted and nevertheless failed to raise such defense remains unrebutted. This is fatal.

As discussed above, when a defendant knows it has exhausted its policy and fails to raise it concomitantly with notice of the same, any motion seeking to modify a judgment based on that defense must be denied. (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3). Here, plaintiff asserts that defendant had exhausted its policy prior to the time the case was tried such that defendant should have raised the same during the trial. This assertion remains unrebutted and it is, in fact, borne out by defendant’s own evidence – the checks purporting all payments made on behalf of Lessie – which indicate no payments beyond 2011 – four years prior to trial. Thus, since defendant’s position is that the checks submitted establish exhaustion of the policy, it is bound by the dates therein, which establish exhaustion prior to trial.

Accordingly, the record establishes that defendant knew and could have raised the foregoing defense, nevertheless failed to raise its exhaustion defense at trial or prior thereto; raising it for the first time after judgment was entered and with the instant motion. Defendant is, thus, barred from availing itself of this defense and its motion must be denied (Mount Sinai Hosp. at 825;Ortho Passive Motion Inc. at 895; Big Apple Ortho Medical Supply, Inc. at *2-3).

Defendant’s reliance on Hosp. for Joint Diseases is misplaced and unavailing. While it is true that in that case defendant was allowed to avail itself of the exhaustion defense after a judgment had been entered, the court only so held insofar as “the defendants were not previously afforded a full and fair opportunity to contest that issue” prior to the entry of judgment (id. at 725-726). Here, of course, defendant was aware of its exhaustion defense at the time of trial, could have raised and litigated the same, but did not. Nor does St. Barnabas Hosp., avail defendant. Significantly, while the court in that case did allow the defendant to modify the judgment on grounds of policy exhaustion, it did so by rejecting the plaintiff’s contention on appeal – that defendant was collaterally estopped from raising the defense because such issue was not raised in connection opposition to plaintiff’s motion for summary judgment (id. at 733). Indeed the Court noted that

[c]ontrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (id. at 733.) That court’s holding is, thus, limited to its facts and indeed appropriate since the doctrine of collateral estoppel, a narrower species of the doctrine of res judicata, prevents a party from re-litigating an issue when the issue was previously litigated and decided against the party or his/her privies (Ryan v New York Telephone Company, 62 NY2d 494, 500 [1984]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; David v Biondo, 92 NY2d 318, 322 [1998]; Gramartan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]; Lumbermens Mutual Casualty Company v 606 Restaurant, Inc., 31 AD3d 334, 334 [1st Dept 2006]; Zimmerman v Tower Insurance Company of New York, 13 AD3d 137, 139 [1st Dept 2004]; Mulverhill v State of New York, 257 AD2d 735, 737-738 [3d Dept 1999]; Tamily v General Contracting Corporation, 210 AD2d 564, 567 [3d Dept 1994]). In order to invoke the preclusive effects of collateral estoppel it must be demonstrated that the issue being raised is identical to an issue previously litigated and decided, that the issue is decisive in the present action, was also decisive and resolved in the prior action, that the party against whom the doctrine is being asserted had a full and fair opportunity to contest and litigate the issue in the prior action, or that his privies had such an opportunity (Buechel at 303-304; David at 322; Ryan at 500; Gramartan Home Investors Corp. at 485; Lumbermens Mutual Casualty Company at 334; Zimmerman at 139; Mulverhill at 737-738; Tamily at 567; Browing Avenue Realty Corp. v Rubin, 207 AD2d 263, 266 [1st Dept 1994]; [*5]Color by Pergament, Inc. v O’Henry’s Film Works, Inc., 278 AD2d 92, 93 [1st Dept 2000]; Comi v Breslin & Breslin, 257 AD2d 754, 757 [3d Dept 1999]).

Thus, St. Barnabas Hosp., does not stand for the proposition – as urged – that a defendant cannot waive and can, therefore, raise the defense of exhaustion at any time. Rather, in that case, the court merely held that collateral estoppel did not preclude defendant from raising the issue after judgment was entered because the same had not been raised and litigated on plaintiff’s motion for summary judgment; the foregoing being essential elements of collateral estoppel. It is hereby

ORDERED that all stays be hereby lifted. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty days (30) hereof.

This constitutes this Court’s decision and Order.

Dated: February 1, 2018

Hon. FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: Defendant’s failure is not fatal since the Insurance Law mandates that all automobile insurance polices in this state provide no-fault coverage for medical expenses incurred by an occupant in a motor vehicle accident in the sum of $50,000 (see, Insurance Law § 5102[a][1], § 5103[a][1]).

CV-700505-13/BX

Plaintiff- Law Firm of Israel, Israel and Purdy, LLP by Scott H. Fisher, Esq.

Defendant- Law Firm of McCormick & Mattie, PC by Stafford Harmit, Esq.

The plaintiff, Quality Medical Care, PC, commenced this action against the defendant, Progressive Casualty Insurance Company, to recover first-party no-fault benefits for medical services rendered to their assignor-insured, Tammy Murphy, the insured pertaining to an automobile policy issued to her on August 2, 2011.

The plaintiff was represented by Scott H. Fisher, Esq., of counsel to the law firm of Israel, Israel and Purdy, LLP, and defendant was represented by Stafford Harmit, Esq., of counsel to the law firm of McCormick & Mattie, PC.

The bench trial in the above-captioned matter was conducted on June 2, 2017. Prior to the taking of any testimony the attorneys for the respective parties introduced a written Stipulation which, in relevant part, acknowledged that plaintiff had timely submitted a complete proof of claim to the defendant on or about August 20, 2012; that the business records of the plaintiff would be admitted into evidence as Exhibit 1 without objection and was attached to the Stipulation; that the business records of the defendant would be admitted into evidence as Exhibit 2 without objection and was attached to the Stipulation; acknowledged that defendant timely mailed a Denial of Claim form to the plaintiff on the date indicated therein, to wit: September 7, 2012, which form was contained within Exhibit 2; and that if any payments have been made by the defendant, the total disputed amount for the underlying bills is $1,979.30; that should there be an award in favor of the plaintiff the award should include statutory interests, attorney fees, costs and disbursements; and that the only issues to be decided at trial are those issues preserved in defendant’s denial of claim forms, to wit: based upon an investigation conducted by the defendant, the patient and the insured, Tammy Murphy, is not an eligible injured party on the basis of having violated Part VII-The General Provisions of the automobile policy for having made misrepresentations in the insurance application that constitute a condition [*2]precedent for coverage to be in effect.

The attorney for the plaintiff, Scott H. Fisher, Esq., after having submitted the aforementioned written Stipulation in evidence furthermore stated that the policy was issued on August 2, 2011, and that the patient (and assignor-insured), Tammy Murphy, misrepresented her address in the insurance application.

Essentially, this court must determine whether or not the patient misrepresented her address. Under no-fault law, the burden is on the defendant insurance company to establish the misrepresentation.

Pursuant to the submission of the written Stipulation and the attached evidentiary materials, plaintiff’s attorney took the posture that he had made out his prima facie case to entitle payment of the medical fees sought and rested on the record.

The attorney for the defendant insurance company, Stafford Harmitt, Esq., argued that based on the alleged misrepresentation made by the assignor-insured at the time she applied for automobile insurance that the insurance company had the right to deny the claim.

The defendant proceeded with its defense by calling Jerianne Green as a witness. Ms. Green identified herself as a claims adjuster and litigation specialist employed by the defendant for the past 13-½ years. Ms. Green testified that her job responsibilities required her to review lawsuits filed for payment on medical bills and to make the determination whether to pay the bills or to deny them, and if payment was to be denied she would defend the decision denying payment by testifying in Court. Ms. Green testified that she was familiar with the facts and circumstances of the case based on having reviewed the file in preparation for trial.

Without objection by plaintiff, Ms. Green provided a copy of the insurance policy application which was marked as Defendant’s Exhibit A. The policy application (Exhibit A) indicated that on August 2, 2011 the patient and the assignor-insured, Tammy Murphy, listed her address as being 116 Bidwell Terrace, Rochester New York 14609. In addition, Ms. Green without objection by plaintiff provided certified copies of two (2) motor vehicle accident reports, NYS Department of Motor Vehicle forms MV-104 and MV-104AN, marked as Defendant’s Exhibits B-1 and B-2, respectively.

The significance of defendant’s Exhibits B-1 and B-2 is that on the date of the motor vehicle accident, to wit: July 4, 2012, Ms. Tammy Murphy, provided a residential address of 123-65 147 Street, Jamaica New York 11436, to the reporting police officer(s), not the Rochester, New York address she had provided nine (9) months earlier in her insurance application. In fact, according to the defendant’s Exhibits B-1 and B-2, Ms. Murphy’s residential address on the date of the accident, to wit: July 4, 2012, was based on and corroborated by the address contained in her New York State driver’s license and motor vehicle registration certificate.

Ms. Green furthermore testified that attributable to the discrepancy in the residential address provided by Ms. Murphy at the time she applied for insurance and the address indicated in the accident report that the defendant insurance company’s procedures were to request verification of the address to corroborate and establish that the insurance applicant actually resided at the address stated in the application when the policy was first taken out. Based on the failure of Ms. Murphy to receive correspondence mailed to her by the defendant as said correspondence was returned by the post office as undeliverable and the further failure to provide [*3]any proof of her Rochester, New York residence on the date the policy was taken out the defendant denied the claim for medical services on the basis of fraud and misrepresentation in the insurance application.

Ms. Green acknowledged that she herself never conducted any investigation of Ms. Murphy’s residence nor had any involvement with the case other than reviewing the file for purposes of testifying at trial, ie., Ms. Green had no personal knowledge of the matters that she testified about at the trial.

The best that this court can surmise, is that there must be a price differential in the policy premiums charged in Rochester, New York and Jamaica, New York, with the latter premiums being higher as this appears to be the motive attributed by defendant to the plaintiff’s assignor, Tammy Murphy, to perpetrate a fraudulent scheme by procuring the subject insurance policy at a reduced insurance premium. The defense asserted by the defendant is that as a consequence Ms. Murphy’s medical provider, the plaintiff, is not eligible to recover assigned no-fault benefits.

Assuming arguendo that Ms. Murphy had used a fraudulent scheme to procure insurance the defendant, pursuant to Vehicle and Traffic Law Section 313, would not have been able to terminate the policy by canceling it until after it mailed a notice of termination by regular mail to her as an insurance carrier’s common-law right to cancel a contract of insurance pursuant to its provisions may only be effected prospectively. (Matter of Liberty Mutual Insurance Company v. McClellan, 127 AD2d 767, [1987; see also Matter of Cruz v. New Millennium Construction Corp., 17 AD3d 19 [2005]; Matter of MetLife Auto & Home v. Agudelo, 8 AD3d 571 [2005]; Matter of Integon Insurance Company v. Goldson, 300 AD2d 396 [2002]; Matter of Insurance Company of New Amsterdam v. Kaplun, 274 AD2d 293 [2000]). The statute “places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence” (Matter of Insurance Company of New Amsterdam v. Kaplun, 274 AD2d 293 [2000]). In this case there has been no allegation nor any proof that the defendant effectively canceled the subject insurance policy pursuant to VTL Section 313 prior to July 4, 2012, the date of occurrence of the accident.

However, in “an action to recover benefits under a policy, the insurance carrier may assert as an affirmative defense that the insured’s misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured” (Matter of Insurance Company of New Amsterdam v. Kaplun, 274 AD2d 293 [2000]). This is essentially the defense that the defendant insurance company, Progressive Casualty Insurance Company, has asserted.

It has been held that health care providers deal with the as assignor-insured at their peril in accepting an assignment of the insured’s no-fault benefits. (Matter of Insurance Company of New Amsterdam v. Kaplun, 274 AD2d 293 [2000]). Contrary to plaintiff’s contention, the defense of fraudulent procurement of an insurance policy, which is non-waivable and hence exempt from the 30-day preclusion rule, may be asserted as against plaintiff-providers in this action seeking to recover assigned no-fault benefits (Matter of Metro Medical Diagnostics v. Eagle Insurance Company, 293 AD2d 751 [2002]).

Included in Exhibit 1 of the written Stipulation is a photocopy of the New York State motorist license to the assignor-insured, Tammy M. Murphy, as well as a New York State insurance identification card issued to her on or about October 27, 2011, by Progressive, defendant in the above-captioned matter. Ms. Murphy’s driver’s license was issued to her on July [*4]22, 2010, and lists her residence at said time as 123-65 147 Street, Jamaica New York 11436. Therefore on August 2, 2011, the time that the insurance application was submitted Ms. Murphy’s residence address on file with the New York State Department of Motor Vehicles was in Jamaica, New York. Said driver’s license had been issued a little over a year at the time that Ms. Murphy submitted her application for insurance, which application was admitted into evidence without objection by the plaintiff and was marked Defendant’s A in evidence. It is furthermore noted by this court that the motor vehicle sought to be insured by Ms. Murphy on August 2, 2011, was a 2005 Mitsubishi Gallant which according to the insurance application was garaged in ZIP Code 14609, i.e., Rochester, New York.

Also included in Exhibit 1 of the written Stipulation is a New York State insurance identification card issued by Progressive on October 27, 2011, to Ms. Murphy for a 2008 Dodge, as a “REPLACEMENT VEHICLE”. By issuing a New York State insurance identification card to Ms. Murphy on October 27, 2011, reflecting the Jamaica, New York residential address Progressive Casualty Insurance Company had actual notice that she was no longer residing in Rochester, New York, as of said date. As such the plaintiff, had eight (8) months prior knowledge that Ms. Murphy was residing in New York City prior to the July 4, 2012, motor vehicle accident.

The record is devoid of what actions, if any, the defendant took in regards to Ms. Murphy’s automobile insurance policy after having actual knowledge that she was residing in Jamaica, New York. Apparently, the defendant subsequent to the automobile accident decided to disclaim payment of Ms. Murphy’s medical bills on the purported basis that at the time the application for insurance was submitted by her that she provided a false residential address.

While it is difficult to determine Ms. Murphy’s actual residence at the time she applied for automobile insurance as the only evidence adduced at trial was based on documentary evidence there is no evidence attesting to her intent. What is known is that at the time of issuance of a driver’s license Ms. Murphy represented to the New York State Department of Motor Vehicles that she was residing in Jamaica, New York. That in filing out an on-line application for insurance Ms. Murphy provided the Rochester, New York address and not the address contained on her driver’s license. Is this a manifestation that Ms. Murphy had relocated to Rochester, New York, and failed to notify the New York State Department of Motor Vehicles of her change in residence? In any event, Ms. Murphy registered a 2005 Mitsubishi in late July or early August 2011 utilizing her address in Rochester, New York. Then within three (3) months time Ms. Murphy registered a replacement vehicle, the 2008 Dodge, for which on October 27, 2011, she was issued another insurance identification card by Progressive which contained the same Jamaica, New York address as reflected in her driver’s license. On July 4, 2012, the date of the accident Ms. Murphy provided the Jamaica, New York address to the police officers who filled out the accident reports and as contained not only on her driver’s license but most importantly on the insurance identification card issued by Progressive three (3) months after procuring an automobile insurance policy. Ms. Murphy did not have Progressive issue an insurance identification certificate for the replacement motor vehicle on October 27, 2011, with the Rochester, New York address. As such, this court does not conclude that Ms. Murphy had any intent to provide a false and fraudulent residential address when filled out the insurance application to obtain automobile insurance.

Any financial benefit to Ms. Murphy for the three (3) month period that the 2008 Dodge was registered in Rochester, New York would have been minimal. The defendant having actual notice that Ms. Murphy was residing in Jamaica, New York should have at a minimum upwardly adjusted the insurance policy premium. If Ms. Murphy had any motive to pay lower premiums then query why the replacement vehicle was not registered by Ms. Murphy in Rochester, New York.

This court holds that the defendant, Progressive Casualty Insurance Company has failed to meet its burden of proof that the assignor-insured, Ms. Murphy, provided a false and fraudulent residential address on August 2, 2011, on her insurance application. Therefore the plaintiff, Quality Medical Care, PC, is entitled to a money judgment in the amount of $1,979.30, plus costs and disbursements and statutory interest.

Dated: July 26, 2017
Bronx, New York
Armando Montano
Judge, Civil Court

261079/2014

Attorney for Petitioner

Jason Tenenbaum, Esq.

The Law Office of Jason Tenenbaum, P.C.

595 Stewart Avenue, Suite 400

Garden City, New York 11530

Ralph C. Caio, Esq.

The Law Offices of Sukhbir Singh

95-18 130 Street

South Richmond Hill, New York 11419

The following papers numbered 1 to 3 read on this motion to vacate

NoOn Calendar of April 30, 2015PAPERS NUMBER

Notice of Motion-Order to Show Cause – Exhibits and Affidavits Annexed————————& mdash;____1___

Answering Affidavit and Exhibits———— —————————&mdas h;—————————&md ash;—————————___ 2___

Replying Affidavit and Exhibits————————&m dash;—————————& mdash;————————— ——————-____3___

Affidavit—————————— ;——————————— 51;———————————& #151;—————————______

Pleadings — Exhibit————————&md ash;—————————& mdash;————————— —————————&mdas h;————_______

Memorandum of Law——————————— ——————————— 51;———————————& #151;—————- ______ Stipulation — Referee’s Report —Minutes———————&mdash ;—————————&mda sh;—————————&m dash;—________Filed papers————————— —————————&mdas h;—————————&md ash;—————————& mdash;———-_______________

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Petitioner seeks judgment pursuant to CPLR 7511(b), vacating the master arbitration

award dated November 18, 2014, that granted respondent, Professional Chiropractic Care, P.C.,

(Care), an award of $9,221.79, and reinstating the decision of the no-fault arbitrator who

dismissed the no-fault claims.

As a result of a motor vehicle accident, respondent/assignor, Thomas Yanick, (Yanick),

underwent three days of manipulation under anesthesia. Yanick applied for no-fault

benefits, and failed to appear for scheduled IMEs. The arbitrator, in a decision dated August 16,

2014, denied Care’s claim for no-fault benefits. Care appealed to a master arbitrator, and the

master arbitrator reversed the arbitrator’s award and in its place, awarded Care, $9,221.79, on

the grounds that petitioner did not inform Care with sufficient specificity that the denial of

Care’s claim was the result of Yanick’s failure to appear for IMEs.

The award of an arbitrator shall be vacated pursuant to CPLR 7511(b) under the

following circumstances:

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

CPLR 7511(b).

“In addition, article 75 review questions whether the decision was rational or had a

plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.).” (Matter of Petrofsky (Allstate Ins.

Co.), 54 NY2d 207, 211 [1981]). In reply papers, petitioner limits the petition to “whether the

master arbitrator’s basis in reversing the findings of the lower arbitrator was irrational.” (reply,

par. 17). Petitioner then cites to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,

PLLC, 82 AD3d 559, [1st Dept 2011], to support its argument that Unitrin dictates a different

result from the master arbitrator’s award in this case.

In his award the master arbitrator cited to General Acc. Ins. Group v Cirucci, 46 NY2d

862 [1979], for the following: “although an insurer may disclaim coverage for a valid reason

(Insurance Law, § 167, subd 8) the notice of disclaimer must promptly apprise the claimant with

a high degree of specificity of the ground or grounds on which the disclaimer is predicated.” Id.

at 864. There is no dispute and the arbitrator acknowledged that the denial of coverage

referenced an incorrect date for an allegedly missed IME and EUO providing a rational basis for

the master arbitrator’s award.

While petitioner states that the master arbitrator’s award is irrational, petitioner’s

arguments center on the master arbitrator having made an error of law in failing to apply Unitrin

to the facts of this case. “The master arbitrator’s determination of the law need not be correct;

mere errors of law are insufficient to warrant setting aside the master arbitrator’s award, and on

questions of substantive law, the determination should be upheld if there is a rational basis for it

(see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576-577 [2002]).”

(101 Acupuncture, P.C. v Utica Mut. Ins. Co., 16 Misc 3d 132(A), (App. Term 2d Dept 2007]).

Finally, petitioner cites to 11NYCRR 65-4.10 (a) (4) for the proposition that the Codes

Rules and Regulation of the State of New York allow this court to vacate the master arbitrator’s

award as “incorrect as a matter of law.” However, 11 NYCRR 65-4.10 (a) (4) only permits a

master arbitrator to vacate or modify an arbitrator. 11NYCRR 65-4.10 (a). A court may not

vacate or modify a master arbitrator’s or an arbitrator’s award on grounds that the award is

incorrect as a matter of law.

Accordingly, the petition is denied, and judgment is rendered in favor of respondent.

The foregoing shall constitute the decision and order of the Court.

Dated: _____________________________________________KENNETH L. THOMPSON JR. J.S.C.

[*1]

Civil Court of the City of New York, Bronx County, April 7, 2015

APPEARANCES OF COUNSEL

Peter C. Merani, P.C., New York City (Joshua Youngman of counsel), for defendant.

Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for plaintiff.

Plaintiff initiated this action against defendant to recover assigned first-party no-fault benefits for medical services it provided on October 21, 2013 to its assignor for injuries sustained by its assignor resulting from a June 18, 2013 accident. Defendant now moves for summary judgment, pursuant to CPLR 3212.

Factual and Procedural Background

Plaintiff’s assignor, Hector Flores, was involved in a motor vehicle accident on June 18, 2013. After the accident, Mr. Flores underwent outpatient surgery at plaintiff’s facility in Saddle Brook, New Jersey, on October 21, 2013.{**48 Misc 3d at 338}

Plaintiff as the assignee of Mr. Flores submitted a claim to defendant in the amount of $11,778. Defendant received the claim on November 29, 2013, and issued a payment in the amount of $1,629.75 on January 3, 2014. Defendant denied the balance of plaintiff’s claim by a denial of claim form dated January 3, 2014 and mailed no later than January 6, 2014 to plaintiff. Defendant denied the balance of the claim because the amount billed exceeds the New Jersey fee schedule. Plaintiff commenced this action to recover the full $11,778 alleging that “[t]here has been no payment of the subject [b]ill” despite defendant’s payment of $1,629.75.

Arguments

Defendant seeks summary judgment on the ground that plaintiff’s bill exceeds the amount allowed under the New Jersey fee schedule in contradistinction to 11 NYCRR 68.1. Defendant annexes to its summary judgment motion an affidavit from a claims representative, who has received training in no-fault regulations and workers’ compensation fee schedules and is a certified coder, describing how she determined that plaintiff’s bill for the medical services provided on October 21, 2013 exceeds the New Jersey fee schedule. Defendant tacitly acknowledges that it did not issue its denial for the balance of the claim within the 30-day time frame required under 11 NYCRR 65-3.8 by arguing that the timeliness of its denial is irrelevant because a recent amendment to 11 NYCRR 65-3.8 makes the defense of billing above the fee schedule a non-waivable defense.

Plaintiff opposes defendant’s summary judgment motion arguing that appellate case law has explicitly established that failure to deny a bill within 30 days of its receipt precludes an insurance company from denying the claim. Plaintiff cites Mercury Cas. Co. v Encare, Inc. (90 AD3d 475 [1st Dept 2011]) and Westchester Med. Ctr. v American Tr. Ins. Co. (17 AD3d 581 [2d Dept 2005]) for the proposition that “defenses predicated upon a proper rate of payment for services rendered must be preserved within a proper and timely denial of claim.” Plaintiff tacitly concedes that it billed above the New Jersey fee schedule but argues that because it is an out of state provider, 11 NYCRR 68.6 governs not 11 NYCRR 68.1 and 11 NYCRR 68.6 does not constrain plaintiff to billing at the rate set forth in the New Jersey fee schedule. According to plaintiff, 11 NYCRR 68.6 does not limit out of state providers to the provider’s{**48 Misc 3d at 339} state’s fee schedule rate but merely requires plaintiff to charge for its services at the prevailing rate for its geographic location. Plaintiff asserts that if New York wanted to require out of state providers to charge at the fee schedule rate for their geographic location, the New York Legislature would have explicitly mandated that fees for out of state medical services be billed at the fee schedule for the provider’s geographic location. Plaintiff’s opposition does not include an affidavit from an individual who is familiar with coding and fee schedules. Instead, plaintiff posits that it need not submit an affidavit from someone with personal knowledge of coding and fee schedule issues because defendant has failed to make a prima facie showing that it is entitled to summary judgment as a matter of law.

Analysis

The proponent of a motion for summary judgment bears the initial burden of coming forward with evidence showing prima facie entitlement to judgment as a matter of law, and, unless that burden is met, the opponent need not come forward with any evidence at all. (Penava Mech. Corp. v Afgo Mech. Servs., Inc., 71 AD3d 493, 495-496 [1st Dept 2010], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].)

Once the movant establishes prima facie entitlement to judgment, the burden shifts to the opposing parties to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action” (Zuckerman at 560). While all “facts must be viewed ‘in the light most favorable to the non-moving party’ ” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), mere conclusory allegations or defenses are insufficient to defeat summary judgment (see Zuckerman, 49 NY2d at 562).

Billing Rate

[1] Under New York’s no-fault insurance statutory and regulatory scheme a New York State medical provider may bill for eligible services in an amount not in excess of the amount allowed under the workers’ compensation fee schedule. (Insurance Law § 5108 [a]; 11 NYCRR 68.1.) “The purpose of the [no-fault] statute and the fee schedules promulgated thereunder is to ‘significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium’ ” {**48 Misc 3d at 340}(Goldberg v Corcoran, 153 AD2d 113, 118 [2d Dept 1989], quoting Governor’s Program Bill, 1977 McKinney’s Session Laws of NY at 2449, and citing Governor’s Mem in Support of Assembly Bill A7781-A).

However, for health services performed outside New York State, pursuant to 11 NYCRR 68.6, the medical provider may charge for its services according to “the prevailing fee in the geographic location of the provider.” As noted above plaintiff argues that if the New York Legislature intended out of state providers to be limited to billing for their services at the applicable fee schedule for their geographic location, the legislature would have explicitly said so in section 68.6 rather than allowing the providers to bill at the prevailing fee for their geographic location.

The court disagrees with plaintiff’s argument for three reasons. First, allowing plaintiff to bill at a rate above the New Jersey fee schedule would undermine the purpose of the no-fault scheme, “to significantly reduce the amount paid by insurers . . . thereby help[ing] to contain the no-fault premium.” (Goldberg, 153 AD2d at 118 [internal quotation marks omitted].) Indeed, the circumstances of this case illustrate that point. Plaintiff billed $11,778 for the medical services it provided to its assignor on October 21, 2013. Defendant’s certified fee coder determined, using New Jersey’s fee schedule, that plaintiff was entitled to a payment in the amount of $1,629.75 for the services plaintiff provided on [*4]October 21, 2013, a $10,148.25 difference or over six times the amount allowed under the New Jersey fee schedule. If plaintiff and those providers similarly situated were allowed to bill for their services at such an increased rate above what the fee schedule allows for their geographic location, no-fault premiums would likely increase, a result the no-fault statutory and regulatory scheme was designed to avoid. (Id.)

In support of its argument that had the New York Legislature intended out of state providers to limit their fees to the fee schedule for their geographic location it would have specifically said so in section 68.6, plaintiff refers to New Jersey Administrative Code (NJAC) § 11:3-29.4 (d) (2) which provides in pertinent part that “[w]hen the service or equipment is provided by reason of the election by the insured to receive treatment outside the State of New Jersey, the reasonable and necessary costs shall not exceed fees set forth in the fee schedules for the geographic region in which the insured{**48 Misc 3d at 341} resides.” Comparing section 68.6 with NJAC § 11:3-29.4 (d), plaintiff concludes that “[h]ad the New York Legislature intended for the ‘prevailing fee schedule’ to act as the de facto rate by which medical services rendered outside of New York state are measured, it would have specifically enumerated such within [section 68.6] as the New Jersey legislature did with its Administrative Code.” However, plaintiff misreads New Jersey’s rule and thereby undercuts its argument. New Jersey’s rule does not limit providers to the fee schedule amount for the provider’s geographic location as plaintiff suggests, but rather limits providers to the fee schedule amount where the claimant/insured resides. In this court’s opinion, New York’s out of state provider reimbursement rule more accurately compensates out of state providers since it takes into account the economic vagaries of the provider’s region rather than imposing on the provider the fee schedule rate of the claimant/insured which may not reflect the same economic conditions as the fee schedule in the provider’s geographic location.

Moreover, plaintiff’s argument that if the New York Legislature wanted to limit out of state providers to the fee schedule for their geographic location the legislature would have explicitly said so is premised upon the assumption that every other state has enacted no-fault statutes. The New York Legislature likely set out of state provider rates at the prevailing fee for their geographic locations rather than at the fee schedule rates in order to take into account providers located in regions that do not have no-fault statutes and/or fee schedule rates.

Finally, plaintiff’s argument that it is not limited to billing at the New Jersey fee schedule is not supported by another goal of the no-fault statute which is “to reduce the burden on the courts.” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007].) Adopting plaintiff’s reading of section 68.6 would require the court to hold a hearing every time the claimant received medical treatment from an out of state provider to determine the “prevailing fee” for the provider’s geographic location thereby increasing the burden on the courts manyfold.

Accordingly, for all of these reasons the court holds that the “prevailing fee” as that term is used in section 68.6 is the amount permitted under New Jersey’s fee [*5]schedule. (Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, 744{**48 Misc 3d at 342} [Civ Ct, Bronx County 2014] [holding “that, when services are rendered outside of New York but in a jurisdiction which utilizes a fee schedule, the insurer complies with section 68.6 by paying . . . the amount permitted by that jurisdiction’s fee schedule”].)

Timeliness of Denial

[2] 11 NYCRR 65-3.8 (a) (1) provides in pertinent part that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim.” Here there is no dispute that defendant did not deny plaintiff’s claim within 30 calendar days after it received proof of plaintiff’s claim.

“There are substantial consequences [for] an insurer’s failure to pay or deny a claim within 30 days.” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 65 [2d Dept 2012] [internal quotation marks omitted], citing Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007].) Where an insurance carrier fails to deny a claim within the 30-day period, it is generally precluded from asserting a defense against payment of that claim. (Id., citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282-283 [1997].) However, a narrow exception to this preclusion rule is recognized in “situations where an insurance company raises a defense of lack of coverage.” (Hospital for Joint Diseases, 9 NY3d at 318.) Under these circumstances, “an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed.” (Hospital for Joint Diseases, 9 NY3d at 318 [internal quotation marks omitted].)

The test for “determining whether a specific defense is precluded . . . or available . . . entails a judgment: Is the defense more like a ‘normal’ exception from coverage (e.g., a policy exclusion), or a lack of coverage in the first instance (i.e., a defense ‘implicat[ing] a coverage matter’)?” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008].) An example of a normal exception from a coverage/policy exclusion is where the insurer alleges the billed for services were never rendered. (Id.) Thus, an insurer is precluded from raising this defense unless timely raised in its denial. (Id.) An example of a lack of coverage in the first instance is an insurer’s “founded belief that the alleged injury does not arise out of an insured incident.” (Central Gen. Hosp. v Chubb Group of Ins.{**48 Misc 3d at 343} Cos., 90 NY2d 195, 199 [1997].) An insurer is not precluded from raising this defense even though it failed to issue a denial within the 30-day period under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a). (Id.)

Appellate authority stands for the proposition that a defense that the provider’s bill exceeds the maximum allowed under the fee schedule is a policy exclusion defense and thus precluded if not preserved within a timely issued denial of claim. (Mercury [*6]Cas. Co. v Encare, Inc., 90 AD3d 475 [1st Dept 2011], lv denied 18 NY3d 810 [2012] [holding fee schedule defense does not fit within narrow exception for denials based on lack of coverage]; Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 37 Misc 3d 127[A], 2012 NY Slip Op 51887[U], *1 [App Term, 1st Dept 2012] [holding “insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30-day period, (therefore,) it is precluded from asserting the defense that the fees charged were excessive”].)

However, a February 2013 amendment to the insurance regulations regarding timeliness of fee schedule defenses calls into question whether Mercury Cas. Co. and Okslen Acupuncture P.C. are still controlling authority. 11 NYCRR 65-3.8 provides in pertinent part that

“(g) (1) [p]roof of the fact and amount of loss sustained pursuant to Insurance Law section 5106 (a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

“(i) when the claimed medical services were not provided to an injured party; or

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.”^[FN*]

Here the parties agree that the medical services were provided to an “injured party,” someone having a claim for {**48 Misc 3d at 344}benefits pursuant to New York’s statutory and regulatory no-fault insurance scheme, and this case does not involve an issue under Insurance Law § 5108 (a), a New York fee schedule dispute.

The relevant portion of section 65-3.8 (g) (1) for this case is subparagraph (ii) and its reference to Insurance Law § 5108 (b). This case is within the rubric of section 5108 (b) because the court is called upon to interpret 11 NYCRR 68.6, a regulation promulgated by the insurance superintendent, and as already stated above, the court interprets 11 NYCRR 68.6 as requiring plaintiff to bill for its services at the applicable New Jersey fee schedule rate for its geographic location. As such, this case involves a [*7]fee that exceeds the charges permissible pursuant to Insurance Law § 5108 (b) requiring the court to interpret and determine the applicability of 11 NYCRR 65-3.8 (g) (1) (ii).

The parties do not cite to a case interpreting section 65-3.8 (g) (1) (ii) and the court did not find such a case. Therefore, it appears to be a question of first impression whether 65-3.8 (g) (1) (ii) allows an insurer to assert a fee schedule defense even though it did not issue a denial of claim within 30 days of receipt of the claim asserting that the provider billed at a rate above the amount permitted under the applicable fee schedule for the provider’s geographic location.

Parsing section 65-3.8 (g) (1) assists in its interpretation. 11 NYCRR 65-3.8 (g) (1) relieves insurers from the obligation to pay first-party no-fault benefits under two sets of circumstances. Section 65-3.8 (g) (1) (i) relieves an insurer from paying a claim when the medical provider renders services to a patient who is not an injured party. In other words, the insurance company is not required to reimburse a provider for medical services provided to someone who is not an accident victim as that term is understood under the Insurance Law. (See Insurance Law § 5108 [b].) Section 65-3.8 (g) (1) (i) codifies an example of a defense that is more akin to a lack of coverage in the first instance because coverage never legitimately came into existence. (Fair Price Med. Supply Corp., 10 NY3d at 565.)

The court determines that the superintendent intended the same result for section 65-3.8 (g) (1) (ii). The court reaches this determination for two reasons. First, the plain language of the regulation relieves an insurer of paying the provider “under any circumstances” when the claimed medical service fees exceed the permissible amount pursuant to the applicable fee{**48 Misc 3d at 345} schedule for the provider’s geographic location. (Klein v Empire Blue Cross & Blue Shield, 173 AD2d 1006, 1009 [3d Dept 1991] [noting that “(g)enerally, the plain language used in a regulation should be construed in its natural and most obvious sense” (citation omitted)].) Therefore, “any circumstances” includes instances where the insurer fails to issue a denial raising the fee schedule as an issue within 30 days of its receipt. Second, the preceding subparagraph (i) is a codification of a defense that falls squarely within the realm of defenses that are more akin to lack of coverage in the first instance. (Matter of MHG Enters. v City of New York, 91 Misc 2d 842, 846 [Sup Ct, NY County 1977] [reasoning that “(i)n interpreting the language of a statute or regulation, the court must give meaning to its words ‘in the context of their particular setting’ ”], quoting Motor Veh. Acc. Indem. Corp. v Eisenberg, 18 NY2d 1, 3 [1966].)

This interpretation of section 65-3.8 (g) (1) (ii) conflicts with the holdings of Mercury Cas. Co. and Okslen Acupuncture P.C. wherein the First Department Appellate Division and Appellate Term held that fee schedule defenses are precluded if not raised in a timely issued denial. However, those cases predate the amendment to section 65-3.8 (g) (1) and the court determines that subparagraph (ii) abrogates Mercury Cas. Co. [*8]and Okslen Acupuncture P.C. The court reaches this determination because “[a]n administrative agency’s exercise of its rule-making powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise” (Matter of Consolation Nursing Home v Commissioner of N.Y. State Dept. of Health, 85 NY2d 326, 331 [1995]) and where the regulation is “in harmony with the statute’s over-all purpose.” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004] [internal quotation marks and citation omitted].) Here, the regulation pertains to an area of expertise within the Insurance Division of the Department of Financial Services. (Consolation Nursing Home, 85 NY2d at 331.) Furthermore, allowing an insurer to raise a fee schedule defense even though it was not preserved in a timely issued denial is in harmony with the no-fault statute’s goal of significantly reducing “the amount paid by insurers . . . thereby help[ing] [to] contain the no-fault premium.” (Goldberg, 153 AD2d at 118; General Elec. Capital Corp., 2 NY3d at 254.)

For these reasons, the court holds that where an insurer fails to issue a denial within 30 days of its receipt of a claim{**48 Misc 3d at 346} raising a fee schedule issue, under 11 NYCRR 65-3.8 (g) (1) (ii) the insurer is not precluded from raising its defense that the provider billed above the applicable amount permitted under the fee schedule for the provider’s geographic location in an action by the provider for first-party no-fault benefits.

Conclusion Defendant has established prima facie entitlement to summary judgment against plaintiff pursuant to defendant’s fee schedule defense under 11 NYCRR 65-3.8 (g) (1) (ii), by demonstrating that plaintiff’s bills for services provided sought amounts in excess of the amount permitted under the New Jersey fee schedule and that defendant made partial payment of plaintiff’s claim in accordance with the New Jersey fee schedule. Plaintiff has failed to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action.

Accordingly, defendant’s motion for summary judgment is granted in its entirety and plaintiff’s claim is dismissed with prejudice.

The Clerk is directed to enter judgment in favor of defendant.

Footnotes

Footnote *:Insurance Law § 5108 provides in pertinent part that

“(a) [t]he charges for services . . . shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . .

“(b) The superintendent, after consulting with the chairman of the workers’ compensation board and commissioner of health, shall promulgate rules and regulations implementing and coordinating the provisions of this article.”

[*1]

Civil Court of the City of New York, Bronx County, November 17, 2014

APPEARANCES OF COUNSEL

Bruce Somerstein & Associates, P.C., New York City, for defendant.

Cohen & Jaffe, LLP, Lake Success, for plaintiff.

In this action seeking reimbursement for assigned no-fault benefits, this court must answer the question of whether an insurer complies with the requirement of 11 NYCRR 68.6 to pay the “prevailing fee in the geographic location of the provider” when it reimburses the provider for health services rendered in another state in accordance with that state’s no-fault fee schedule.

Factual and Procedural Background

On February 23, 2012, Vincent Molino was operating an automobile when he was involved in a four-car accident caused by an intoxicated driver. Following the accident, Molino received treatment from plaintiff Surgicare Surgical for knee, lower back, and neck injuries. [*2]Surgicare performed arthroscopic surgery on Molino at a location in New Jersey approximately one year after the accident.

Plaintiff, as the assignee of Molino, submitted a claim on May 6, 2013 to defendant National Interstate Insurance Company in the amount of $10,800 for the surgery. Two days later, defendant sent a verification form to plaintiff requesting additional information. Plaintiff replied to the verification form by way of a “medical necessity” letter dated May 31, 2013. Defendant then issued payment in the amount of $5,996.67, but denied the remaining portion of plaintiff’s claim. In a standard “Denial of Claim” form, dated June 13, 2013, defendant indicated that plaintiff’s fees were “not in accordance with fee schedules” and were “reduced in accordance with the New Jersey No-Fault Ambulatory Surgery Fee Schedule guidelines.” Plaintiff commenced this action to recover the remainder of its claim. Despite defendant’s payment of $5,996.67, plaintiff alleges in its complaint that “there [was] no payment of the subject bill” (complaint ¶ 15).

Defendant now moves to dismiss. Plaintiff opposes the motion and cross-moves for summary judgment on its complaint.

Arguments In support of its motion to dismiss, defendant argues that, under 11 NYCRR 68.6, it was required to pay the “prevailing fee in the geographic location of the provider.” Since health care services were rendered in New Jersey, a state which has promulgated a fee schedule under its no-fault laws, defendant{**46 Misc 3d at 739} contends that the reimbursement provided for in New Jersey’s fee schedule constitutes the “prevailing fee” under New York’s section 68.6. Defendant concludes, therefore, that it properly denied so much of plaintiff’s claim that exceeded the maximum charge under New Jersey’s fee schedule for the services in question. In support of its position, defendant annexes to its reply papers an affidavit from a professional medical coder, Lisa Acuna, who states that defendant properly calculated the payment amount for plaintiff’s claim under New Jersey’s fee schedule. Lastly, defendant argues that dismissal is warranted because plaintiff is estopped from seeking the remainder of its claim based on the doctrine of accord and satisfaction.

In opposition, plaintiff asks preliminarily that this court deem defendant’s motion to dismiss as one for summary judgment pursuant to CPLR 3212 (c). As to the merits, plaintiff does not dispute that New Jersey’s fee schedule, if applicable, would bar plaintiff’s claim. However, plaintiff contends that New Jersey’s fee schedule does not apply because the term “prevailing fee” in the regulation is not synonymous with “fee schedule.” Plaintiff argues that in contrast to New Jersey’s version of section 68.6, which expressly limits out-of-state reimbursements to those rates set forth in the host state’s fee schedule, New York’s rule for reimbursement of out-of-state services does not refer to a local “fee schedule.” By omitting specific reference to a fee schedule, plaintiff argues, New York’s Legislature refused to limit payments for out-of-state services to the amounts set forth in another state’s fee schedule. Plaintiff further contends that this court would exceed its authority by interpreting the plain language of section 68.6 to require that an insurer pay anything other than the “prevailing fee of the geographic location of the provider.”

Despite defendant’s submission of the Acuna affidavit in its reply papers, plaintiff argues that defendant’s failure to include an affidavit from a competent medical coder in its initial moving papers warrants denial of the instant motion. Additionally, plaintiff contends that defendant failed to timely issue its denial and neglected to preserve its fee schedule defense when issuing the standard denial form. Lastly, plaintiff argues that the “partial” payment of $5,996.67 on plaintiff’s $10,800 claim effectively estops defendant from denying any unpaid portion of the claim.

In support of its cross motion for summary judgment, plaintiff argues that it has established timely mailing of its claim and{**46 Misc 3d at 740} that payment on the claim is overdue. Defendant opposes the cross motion.

Discussion

On a motion to dismiss pursuant to CPLR 3211, the court affords the pleadings a liberal construction, giving the non-moving party the benefit of every favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not presumed to be true (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]). In such a case, “[a] CPLR 3211 dismissal may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005] [internal quotation marks omitted]).

Two procedural issues arise in the context of defendant’s motion to dismiss. First, plaintiff’s complaint alleges that “there [was] no payment of the subject bill” (complaint ¶ 15), however, this statement is not only refuted by defendant’s evidence of a $5,996.67 payment to plaintiff, but also by plaintiff’s admission that it received this payment from defendant. Plaintiff’s allegation of no payment is flatly contradicted by the evidence and, thus, clearly erroneous. As such, plaintiff can only seek the unpaid portion on its $10,800 claim.

[1] Secondly, to the extent that plaintiff claims defendant neglected to annex a qualifying affidavit from a medical coder to its initial moving papers, defendant later cured this defect in its reply papers by way of the affidavit from Lisa Acuna. Acuna, who is a certified medical coder, avers that defendant paid the exact amount permitted under New Jersey’s fee schedule for the health services provided by plaintiff. Although plaintiff could have responded to the affidavit in its cross motion, it failed to do so. Thus, plaintiff had—but waived—an opportunity to dispute those assertions (see Held v Kaufman, 91 NY2d 425, 430 [1998] [defenses raised for the first time in reply papers on a motion to dismiss were properly considered without danger of prejudice where plaintiff was afforded opportunity to respond]). In sum, while the parties disagree about whether New Jersey’s fee schedule applies under these circumstances, neither party{**46 Misc 3d at 741} disputes that, if New Jersey’s fee schedule does apply, defendant complied with section 68.6.

[2] With respect to plaintiff’s request to convert this motion to one for summary judgment, this court declines to deem defendant’s instant motion as one for summary judgment pursuant to CPLR 3211 (c). Although resolution of a purely legal question is appropriate on a motion for summary judgment (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]), the court may also decide a motion to dismiss pursuant to rule 3211 when it is premised entirely on an issue of statutory interpretation (see McKechnie v Ortiz, 132 AD2d 472 [1st Dept 1987]) or when the sufficiency of the pleadings poses a question of law (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]). Since no issues of fact need to be determined in order to resolve the instant motion, this court is left to answer a question of law, that is, whether defendant complied with section 68.6 when it limited payment for the health services performed by plaintiff to the amount allowable under New Jersey’s fee schedule. Thus, some interpretation of the regulation at issue is called for.

In a claim brought under New York’s Comprehensive Motor Vehicle Insurance Reparations Act, otherwise referred to as the “No-Fault Law” (see Insurance Law § 5101 et seq.), a provider’s reimbursement for eligible health services performed in New York “shall not exceed the charges permissible under [the fee schedule established by the New York State Workers’ Compensation Board]” (see Insurance Law § 5108 [a]). Under subdivision (c), “[n]o provider of health services . . . may demand or request any payment in addition to the charges authorized [under the fee schedule]” (Insurance Law § 5108 [c]).

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance who has “broad power to interpret, clarify, and implement the legislative policy” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2d Dept 2012] [internal quotation marks omitted]; see Insurance Law § 301). In the no-fault context, section 5108 (b) of the Insurance Law empowers the superintendent to “promulgate rules and regulations implementing and coordinating the provisions of [the No-Fault Law].” These rules, found in part 68 of the New York Insurance Department Regulations, “govern[ ] the charges for professional health services” (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 25-26 [App Term, 2d Dept 2007]).

Within this regulatory framework, the Insurance Department has promulgated section 68.6 which provides that “[i]f a professional{**46 Misc 3d at 742} health service . . . is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (11 NYCRR 68.6).

The question of exactly what constitutes the “prevailing fee” in this context appears to be one of first impression since neither of the parties nor this court have located authority interpreting section 68.6 in relation to a state which utilizes a no-fault fee schedule. However, the Superintendent of Insurance has issued a formal opinion interpreting section 68.6 in the context of a foreign jurisdiction that apparently did not have a fee schedule. The opinion, which involved a question of licensure for physical therapists providing health services in Guatemala, specifically cites the section at issue and states:

“[*5]As to the amount of the reimbursement, where the health services are provided outside of New York State . . . [t]he dollar amount of the reimbursement for physical therapy services (or other professional health services) performed on an eligible injured person under a New York No-Fault insurance policy in Guatemala is determined by the permissible cost for such services in Guatemala” (Ops Gen Counsel NY Ins Dept No. 03-04-03 [Apr. 2003], 2003 WL 24312368 [US], *2 [emphasis added]).

The Superintendent’s use of the word “permissible” is significant as it strongly suggests that reimbursement for health services performed in a foreign jurisdiction may be regulated by that jurisdiction’s laws, including a governing no-fault regime. Indeed, the principle of limiting reimbursements to “permissible” amounts is mirrored in the section of the Insurance Law that codifies the No-Fault Law’s salient feature of explicitly restricting reimbursement for health services performed in New York to the amounts allowable by this State’s fee schedule (see Insurance Law § 5108 [a]); therefore, it is only logical that the same principle should apply to foreign jurisdictions. Consistent with the use of “permissible” in the core provision of the No-Fault Law, the Superintendent has reasonably interpreted the language of section 68.6 to require that an insurer pay for any health service performed in a locale outside of New York at the permissible cost for that location. As such, the Superintendent’s interpretation of its own regulations is entitled to deference (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009] [“the (Insurance) Superintendent’s ‘interpretation (of its own regulations) if not irrational or unreasonable,{**46 Misc 3d at 743} 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’ ”]).

In addition, the language of the preceding subsection within section 68.6 also utilizes the term “prevailing fee.” That subsection, section 68.5 (b), states that

“If a professional health service is performed which is [eligible for no-fault benefits], but is not set forth in fee schedules adopted or established by the superintendent, and: . . .

“(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 [b] [emphasis added]).

Section 68.5 (b) requires that the insurer pay the “prevailing fee in the geographic location of the provider” only if this State’s fee schedule has not established a permissible charge for the health service or has not adopted the type of provider who seeks reimbursement for no-fault benefits. In other words, for any claimed health service, the insurer must look first to the fee schedule in determining the proper reimbursement amount. It is only after the insurer concludes that the fee schedule does not apply that it may look to the “prevailing fee” in the provider’s location. The provider’s likelihood of receiving the “prevailing fee” is further conditioned upon the insurer’s prerogative to re-categorize the particular health service to fit under existing fee schedules. By looking first to the application of a fee schedule, section 68.5 employs a logical approach in which [*6]the insurer pays a “prevailing fee,” as plaintiff defines that term, only after all possible fee schedule applications have been exhausted.

Both the Insurance Department’s opinion and section 68.5 (b)’s formula for applying the “prevailing fee” comport with the policy goals underlying the legislature’s adoption of a fee schedule. The purpose of a fee schedule is “to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d {**46 Misc 3d at 744}113, 118 [2d Dept 1989] [internal quotation marks omitted], citing Governor’s Program Bill, 1977 McKinney’s Session Laws of NY at 2449; Governor’s Mem in Support of Assembly Bill 7781-A). Moreover, per Insurance Department regulation, the express purpose of the fee schedule was to “contain . . . the cost of no-fault insurance” (see 11 NYCRR 68.0). Like New York, New Jersey passed similar no-fault legislation as a “cost-containment initiative” (see Casinelli v Manglapus, 181 NJ 354, 360, 858 A2d 1113, 1116 [2004]). In furtherance of policy goals akin to New York’s, New Jersey’s Department of Insurance has promulgated a medical fee schedule (see 11 NJ Admin Code 11:3-2.9). Thus, the “permissible” charge for health services rendered in New Jersey are limited by the maximum amounts permitted under New Jersey’s fee schedule.

[3] Based on the foregoing, this court holds that, when services are rendered outside of New York but in a jurisdiction which utilizes a fee schedule, the insurer complies with section 68.6 by paying the “permissible” charge for that particular medical service, that is, the amount permitted by that jurisdiction’s fee schedule. There being no dispute that defendant issued payment on plaintiff’s claim in accordance with New Jersey’s fee schedule, plaintiff is not entitled to more. Since plaintiff’s action is based entirely on its claim of entitlement to reimbursement in excess of New Jersey’s “permissible” charge, the relief sought in the complaint must be denied and the action dismissed.

Contrary to plaintiff’s position, this court neither exceeds its “jurisdiction” nor subverts the plain language of section 68.6 by holding that an insurer complies with section 68.6 when the reimbursement amount is consistent with another state’s fee schedule. Rather, this court merely adopts a reading of section 68.6 that comports with both the Insurance Department’s interpretation of its own regulation, as well as the policy goals underlying New York’s (not to mention, New Jersey’s) No-Fault Law.

Aside from the core objective of “provid[ing] a tightly timed process of claim, disputation and payment” (see LMK Psychological Servs., P.C., 12 NY3d at 222), another important goal of the no-fault laws was also to “reduce the burden on the courts” (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [internal quotation marks omitted]). If this court were to accept plaintiff’s interpretation of section 68.6, rather than “reduce the burden on the courts,” similar {**46 Misc 3d at 745}no-fault disputes would routinely call upon trial courts to conduct evidentiary hearings on local billing practices to determine the “prevailing fee” in a neighboring location notwithstanding the fact that such a jurisdiction has already established its own legally permissible fee. Such a situation would undoubtedly subvert the No-Fault Law’s core objective of creating a speedy process of claim, dispute resolution, and, ultimately, payment.

Equally important, the goals of consistency and fairness are undermined when injured parties, or their provider-assignees, can be reimbursed for the same health services at different rates [*7]from those permitted under either New York’s or even another state’s fee schedule simply because the services were rendered outside of New York but are to be paid in this State. Plaintiff’s proposed reimbursement scheme would only frustrate the purposes of both jurisdictions’ no-fault laws because providers would be incentivized to treat New York patients in other jurisdictions hoping to receive more for performing the same health service outside of New York’s borders.

[4] Turning to plaintiff’s remaining contentions, this court finds no merit in plaintiff’s argument that defendant’s denial of claim was untimely. An explicit schedule for claim submission, response, and decision is provided in Insurance Department regulations (see 11 NYCRR 65-1.1, 65-2.4 [c]; 65-3.5 [a], [b]; 65-3.8 [c]). Although it is well-established that “[an insurer] that fails to deny a claim within the 30-day period is generally precluded from asserting a defense against payment of the claim” (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]), if the insurer seeks additional verification, the 30-day window is tolled until the insurer receives the requested information (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Here, plaintiff made its claim on May 6, 2013, but defendant sent back a verification form two days later. The 30-day window was therefore tolled until defendant received the verification information it requested. Plaintiff admittedly submitted this information by way of a medical necessity letter on May 31, 2013. Given that defendant issued the denial of claim form on June 13, 2013, which was well within 30 days of plaintiff’s medical necessity letter, defendant’s denial was timely.

[5] Plaintiff further contends that, even assuming timeliness of its denial, defendant nevertheless failed to preserve its billing practices defense. However, an insurer preserves such a defense{**46 Misc 3d at 746} merely by checking the “fees . . . not in accordance with the fee schedule” box on the standard denial form (Megacure Acupuncture, P.C. v Lancer Ins. Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Not only did defendant check the appropriate box in its denial of plaintiff’s claim, but it also specified the basis for the denial, namely, that plaintiff’s reimbursement was “reduced in accordance with the New Jersey No-Fault Ambulatory Surgery Fee Schedule guidelines.”

Lastly, plaintiff’s argument that defendant’s partial payment on the claim somehow indicates that defendant was satisfied with the entirety of the claim is unavailing (see 11 NYCRR 65-3.8 [d] [“Where an insurer denies part of a claim, it shall pay benefits for the undisputed elements of the claim. Such payments shall be made without prejudice to either party” (emphasis added)]).

This court has considered the remainder of plaintiff’s contentions and finds them to be without merit.

Accordingly, it is ordered that defendant’s motion is granted and the complaint is dismissed; and it is ordered that plaintiff’s cross motion is denied in its entirety.