[*1]

Civil Court of the City of New York, Kings County, October 25, 2004

APPEARANCES OF COUNSEL

Amos Weinberg for plaintiff. Bruno, Gerbino & Soriano, LLP (Robert J. Morgan of counsel), for defendant.

{**5 Misc 3d at 786} OPINION OF THE COURT

Eileen N. Nadelson, J.

This action arises pursuant to the provisions of New York’s No-Fault Insurance Law.

The assignments of benefits that provide the basis of this claim present two discrete issues to be decided by this court. The alleged accident occurred on March 18, 2003, when the car driven by the son of the insured collided with another car. The assignors are the son and his passenger; the insured himself was not in the car nor involved in the accident. The insured’s policy covers accidents occurring while the son is driving the vehicle.

The claims for first-party benefits were submitted by plaintiff medical provider in a timely fashion. After the claims were submitted, defendant insurer requested additional verification in the form of an examination under oath (EUO) from the driver assignor. The request for the EUO was sent to the driver and the attorney representing the driver in a separate action. The address used to send the request to the driver was incorrect, and the request was never received by this assignor, although it was received by his attorney. It is noted that defendant did have the driver’s correct address, but left a significant portion of the address off [*2]the envelope. The driver assignor did not appear for the EUO. The subsequent follow-up request was also mailed to the same erroneous address, and the driver did not appear for the rescheduled EUO.

Meanwhile, defendant conducted EUOs of the passenger assignor and the insured. The passenger stated that she was picked up by the driver around 8:00 a.m., which was their usual custom, and that the accident occurred shortly thereafter. She further stated that she was removed from the vehicle by the fire department’s EMS team when they arrived on the scene. The police also were summoned.

The insured stated that he and the driver live at the same address and work at the same facility. He said that on the morning{**5 Misc 3d at 787} in question he left for work at around 6:00 a.m., which was his customary practice. He further claimed that his son, according to his belief, usually leaves for work at 7:00 a.m., and arrives at work at around 7:30 a.m., but that he and his son do not work in the same area and he does not actually see his son arrive.

The insured said that he was called about the accident by the passenger, and arrived at the scene between 10:00 and 10:30 a.m., at which time he saw the passenger standing outside the car. He said he did not believe that she had been in the car.

The claims were ultimately denied by defendant insurer. The denial of benefits for the driver assignor’s treatment was dated August 8, 2003, the claim having been received on May 15, 2003; the denial of benefits for the passenger assignor’s treatment was dated August 20, 2003, the claim having been received on May 16, 2003.

Defendant stated that the denial of benefits for the driver assignor was based on his failing to attend scheduled examinations under oath, and the denial of benefits for the passenger assignor was based on defendant’s determination that the injuries complained of did not result from the alleged accident.

Plaintiff has moved for summary judgment, asserting that the denial of benefits for the driver assignor’s treatments was not received within the statutorily mandated 30 days after receipt of the claims (11 NYCRR 65-3.5, 65-3.8 [a]), and that the denial of benefits for the passenger assignor’s treatments is based on unsubstantiated hypotheses. Defendant maintains that its requests for verification of the claim tolled that statutory period pursuant to 11 NYCRR 65-3.5, and that the two conflicting EUOs of the passenger and the insured raise triable issues of fraud in presenting the claim.

The first issue required to be determined by this court is whether a request for an examination under oath to an injured party’s attorney is sufficient notification to the injured party under New York’s No-Fault Law and regulations? This is an issue of first impression under the regulations.

The regulations promulgated under New York’s No-Fault Law, appearing under part [*3]65 of title 11 of the New York Code, Rules and Regulations, prescribe the manner in which requests for verification must be made. However, the regulations only deal specifically with time limits for making requests and scheduling EUOs; only tangentially do they indicate how notice is to be sent.{**5 Misc 3d at 788}

11 NYCRR 65-3.5 (b) states that requests for verification “need not be made [in] any prescribed [manner] or . . . form.” Section 65-3.5 (e) states, in pertinent part, that the “insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses . . . .”

11 NYCRR 65-3.6 (b) states:

“[I]f any requested verifications [sic] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested . . . At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (Emphasis added.)

A legally valid basis for denying a first-party benefit claim would be the provider’s assignor failing to comply with requests for verification. (See generally, Lopedote v General Assur. Co., 4 Misc 3d 1001[A], 2004 NY Slip Op 50593[U] [Kings County 2004].) However, the sine qua non of any legal request for information is that the party required to provide such information be given adequate and appropriate notice. (See generally, BHNJ Realty Corp. v Rivera, 144 Misc 2d 241 [NY County 1989].)

Neither the No-Fault Insurance Law nor the regulations promulgated thereunder specify the manner in which a request or notice be given. Therefore, in deciding whether notice to an assignor’s attorney, who is not representing the medical provider claimant, is sufficient notice to the assignor of the request for verification, the court must look to other statutes’ notice requirements to insure that the mandates of due process are met.

Section 308 (2) of the CPLR, concerning service of process, states that if a person is not personally served, service may be effectuated by serving a person of suitable age and discretion at the dwelling, place of business or abode of the person to be served and mailing a copy of the pleadings to that person’s last known address. Service may also be perfected by affixing a copy of the pleadings to the door of the dwelling of the person to be served and mailing a copy of the pleadings to that address. These are dual requirements, and both serving the suitable person or affixing the papers and mailing the pleadings must be completed {**5 Misc 3d at 789}before service is deemed satisfied. If the pleadings are mailed to the wrong address, service is deemed incomplete. (Schurr v Fillebrown, 146 AD2d 623 [2d Dept 1989].) Further, under section 312-a of the CPLR, personal service may be effectuated by mail, with proof of mailing and [*4]acknowledgment of receipt. However, in all instances, the mailing must be made to the person’s correct last known address. (See generally, Zaretski v Tutunjian, 133 AD2d 928 [3d Dept 1987]; Smith Carpet v Walter Arnold, Inc., 94 AD2d 643 [1st Dept 1983].)

Similarly, service under the provisions of Real Property Actions and Proceedings Law § 735 specifies a dual requirement of both serving a person of suitable age and discretion or affixing the pleadings to the door of the subject premises and mailing a copy of the pleadings to the person to be served. The failure to comply with these requirements, even when the person being served admits receipt, is deemed to be fatal. (Palumbo v Clark’s Estate, 94 Misc 2d 1 [Bronx County 1978].)

According to the provisions of the No-Fault Law, requests for additional verification must be made to the injured party or that party’s assignee. (11 NYCRR 65-3.5 [b]; Inwood Hill Med. P.C. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [NY County 2004].) In the instant case, it is undisputed that plaintiff, the assignee, did not receive the request for verification, and so the tolling of the 30-day period must stand or fall on the appropriateness of the request to the injured assignor.

The no-fault regulations consistently state that requests are to be made to the injured party or the claimant. In the case at bar, the claimant provider was not notified of the request for an EUO, and the request to the injured party was mailed to the wrong address. The only time the regulations mention an attorney is when it requires a request for additional verification to be sent both to the applicant and his attorney. The court views this notice requirement for an additional verification as a dual requirement, as with service under the CPLR and RPAPL, meaning that the failure to notify the claimant in a proper manner negates the effect of the request. Because the notices were never sent to the driver assignor’s correct address, the court finds that defendant failed to make a legally valid request for verification within the time period prescribed by the regulations, and therefore the 30-day requirement was not tolled and the denial was untimely.

The court emphasizes that the attorney who received the request represents the assignor in his own personal action for damages, {**5 Misc 3d at 790}and does not represent the assignor with respect to plaintiff’s claim for first-party benefits. Therefore, since the representation involves separate claims and lawsuits, the court cannot assume that mailing requests to this lawyer is appropriate in this matter, since the assignor might retain different counsel for the claim under scrutiny. It has been held that mailing pleadings to a party’s attorney did not constitute valid service when there was no evidence that the party authorized the attorney to accept such pleadings. (Broman v Stern, 172 AD2d 475 [2d Dept 1991].)

The second issue to be decided by the court is whether a denial of first-party benefits under the No-Fault Law may be based on statements and suppositions made by a person who lacks personal knowledge of the situation.

Defendant denied the claim for the passenger’s treatments because of a discrepancy [*5]between the passenger’s statements under oath and the statements under oath of the insured. However, as the transcript clearly indicates, the insured had absolutely no personal knowledge of the facts, not having been on the scene when the driver started the vehicle nor at the scene of the alleged accident. His statements are conclusions he reached based on what he saw after the fact. The statements he made regarding what he viewed at the scene when he arrived are not inconsistent with the statements of the passenger.

Unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of an assignor’s fraud, and summary judgment should be granted if the medical provider evidences properly submitted claims. (A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d Dept 2003].) Defendant’s submission of the EUO of the insured who has no personal knowledge of the facts does not constitute evidentiary proof in admissible form. (S & M Supply, Inc. v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 2d Dept 2004].)

Based on the foregoing, the court grants plaintiff’s motion for summary judgment.

Civil Court, Kings County

87097KCV2004

Eileen N. Nadelson, J.

This matter involves the disputed billing of $1,791.73 for MRIs which was denied by the arbitrator based upon the grounds of lack of documented medical necessity. Petitioner appealed the arbitrator’s award to a Master Arbitrator, alleging that the arbitrator’s decision was arbitrary, capricious, irrational and without a plausible basis in fact. Based on that argument, Petitioner asked the Master Arbitrator to vacate the award pursuant to CPLR section 7511(b)(1). The Master Arbitrator, however, affirmed the arbitrator’s award.

Petitioner, pursuant to CPLR 7511, now moves this court to vacate the decision of the Master Arbitrator as arbitrary and capricious.

In presenting its claim to the arbitrator, Petitioner evidenced that it submitted its claim, a valid assignment of first party benefits, and that Respondent insurer failed to pay or deny the claim within thirty days of receiving the claim. The arbitrator found that Respondent failed to [*2]pay or deny the claim in a timely manner; however, the arbitrator also found that the MRIs billed for were not medically necessary. Based on this finding, the arbitrator denied the claim, stating that Petitioner failed to meet its burden of proof with respect to the medical necessity of the MRIs. The Master Arbitrator, in affirming the award, found that the arbitrator’s conclusion was based on sufficient evidence to support the award.

CPLR section 7511((b)(iii) provides that an arbitrator’s award may be vacated if it is found that the arbitrator exceeded his power or imperfectly executed it. In Petrofsky v. Allstate Insurance Company, 54 N.Y. 2d 207, 445 N.Y.S. 2d 77 (1981), the Court of Appeals held that the role of a master arbitrator in insurance cases is to assure that the arbitrator reached a decision in a rational manner, that the decision was not arbitrary and capricious, incorrect as a matter of law, or in excess of policy limits or in conflict with other designated no-fault arbitration proceedings. Therefore, the question to be decided by this court is whether the decision of the arbitrator, as confirmed by the Master Arbitrator, was arbitrary, capricious, or incorrect as a matter of law.

Historically, the courts held that the applicable test for review of no-fault arbitrations where error of law is in issue is essentially similar to that utilized for review of quasi-legislative determinations- whether any reasonable hypothesis can be found to support the questioned interpretation. Shand v. Aetna Insurance Company, 74 A.D. 2d 442, 428 N.Y.S. 2d 462 (2d Dept. 1980). Under this theory, a court, in reviewing an arbitrator’s award, should not set it aside for errors of law or fact unless the award is so irrational as to require vacatur. Hanover Insurance Company v. State Farm Mutual Insurance Co., 226 A.D. 2d 533, 641 N.Y.S. 2d 547 (2d Dept. 1996). Even as recently as 1997, the courts in this department upheld arbitrator’s decisions, even if the arbitrator misconstrued the law, provided that the arbitrator’s conclusion was neither irrational nor arbitrary and capricious so as to justify vacating the award. Gravenese v. Allstate Insurance Company, 245 A.D. 2d 507, 666 N.Y.S. 2d 710 (2d Dept. 1997). However, more recently the courts in the second department have taken a different approach when called upon to review arbitral decisions.

In Park Radiology, P.C. v Allstate Insurance Company, 2 Misc. 3d 621, 769 N.Y.S. 2d 870 (Richmond County 2003), a case involving the claim for first party no-fault benefits, the arbitrator, as in the instant case, found that the insurer failed to pay or deny the claim within the prescribed thirty day period. Nevertheless, the arbitrator found that the medical provider failed to establish a prima facie case that the tests performed were medically necessary and so denied the claim. In affirming the award, the master arbitrator cited the Petrofsky case as limiting his ability to vacate an award that is neither arbitrary nor capricious. However, the Civil Court vacated the master arbitrator’s decision and found for the medical provider, asserting that the arbitrator and master arbitrator misconstrued the law.

The law with respect to the burden of proof in first party no-fault claims was established by the court in Bonetti v. Integron National Insurance , 269 A.D. 2d 413, 703 N.Y.S. 2d 217 (2d Dept. 2000). The Bonetti court stated that, with limited exception, an insurer is precluded from [*3]denying a no-fault claim if it fails to timely deny it. Further, an insurer is precluded from challenging the adequacy of a claimant’s proof of medical necessity if it fails to timely deny the claim for no-fault benefits. Vinings Spinal Diagnostic, P.C. v Liberty Mutual Insurance Company, 186 Misc. 2d 287, 717 N.Y.S. 2d 466 (Nassau County 2000). This is true despite a contrary position taken by the New York Department of Insurance.

In an informal opinion letter entitled “No-Fault Burden of Proof,” January 11, 2000, the Department of Insurance indicated that, even if a claim is not timely denied, the claimant may still have to substantiate that the treatment for which reimbursement is sought was medically necessary. This approach has been taken by the arbitrators in no-fault arbitration, but has not been followed by the courts. Das/N.Y. Medical Rehab P.C. v. Allstate Insurance Company, 297 A.D. 2d 321, 746 N.Y.S. 2d 262 (2d Dept 2002).

This court finds that the overwhelming weight of judicial authority in this matter holds that an insurer is precluded from raising any defense, other than lack of coverage, when it fails to comply with the rule requiring it to deny a claim within thirty days of receipt of the claim. Insurance law section 5106(a); New York Medical Center of Queens v. Country-Wide Insurance Company, 295 A.D. 2d 583, 744 N.Y.S .2d 201 (2d Dept. 2002); New York & Presbyterian Hospital v. American Transit Insurance Company, 287 A.D. 2d 699, 733 N.Y.S. 2d 80 (2d Dept. 2001).

Consequently, the court concludes that petitioner met its burden of proof when it presented its claim and proof that Respondent failed to deny the claim within thirty days. Based on the decision in Park Radiology, P.C. , supra, the court holds that the arbitrator’s and Master Arbitrator’s award did not have a rational basis since it is contrary to the state of legal precedent.

The court vacates the decision of the Master Arbitrator and finds for Petitioner in the amount of $1,791.73, with statutory interest and fees as established iin section 5106(a) of the Insurance Law.

Dated: September 27, 2004

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court, Kings County

72088/03

Donald Scott Kurtz, J.

Plaintiff moves, pursuant to CPLR §3212, for an order granting summary judgment on [*2]the ground that no issue of fact exists with respect to the plaintiff’s entitlement to No-Fault benefits for transportation services provided to Rafael Fuentes (hereinafter “the patient”) who was allegedly injured in a motor vehicle accident on May 6, 2001. Plaintiff claims that it provided necessary transportation services to the patient at a total cost of $1,650, of which $700 was paid, leaving a balance of $950.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 AD2d 600 (2d Dept 1991).

In order to establish a prima facie case of entitlement to No-Fault benefits, the plaintiff must submit proof of claim and amount of loss, together with a valid assignment. See Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2d Dept 2004); Damadian MRI In Garden City, P.C. v. Windsor Group Ins., 2 Misc 3d 138(A)(App Term, 2d & 11th Jud Dists 2004); Interboro General Hosp. v. Allcity Ins. Co., 149 AD2d 569, appeal dismissed 74 NY2d 792 (1989). In support of its claim, plaintiff submits several invoices addressed to defendant. Those invoices purport to establish that plaintiff provided the patient with transportation services sixty-six times between May 8, 2001 and October 18, 2001, at a rate of $25 per trip. Plaintiff was reimbursed by defendant in the amount of $700, leaving a balance of $950 owing. Plaintiff also submits the affidavit of Leonid Zayets, an employee and/or officer of plaintiff, wherein he states that plaintiff submitted the invoices to defendant together with proper No-Fault verification forms. However, plaintiff fails to attach said forms.

The alleged accident occurred on May 6, 2001. Therefore, this case falls under the No-Fault provisions of 11 NYCRR § 65.15 in effect on that date. Under the applicable regulations, a patient is entitled to up to $25 per day for “other reasonable and necessary expenses incurred as a result of the accident,” including necessary transportation expenses. 11 NYCCR § 65.8(g)(1)(3). Although the current No-Fault regulations allow the assignment of the right to collect payment for health services only, under the older, applicable regulations, a patient may assign the right to collect payment from an insurer to either an attending physician or “other provider of service…” 11 NYCRR 65.15(j)(1). See also, 11 NYCRR 65-3.11(a).

Plaintiff submits a purported assignment which provides as follows:

In consideration of services rendered or to be rendered to the above, named patient, I hereby authorize payment directly to the Transportation provider services of any and all first party no-fault automobile insurance benefits, to which I may be entitled, for services rendered by the provider, but not to exceed the provider’s regular charges for such services.

I further understand that if said sum is not collected I will remain personally liable. [*3]

This language operates only to authorize defendant to make payment directly to plaintiff and in no way assigns to plaintiff the right to sue to collect such payment in the place of the patient. Therefore, it is not a valid assignment, but merely an authorization for direct payment. See also, Rehab Medical Care of New York, P.C. v. Travelers Ins. Co., 188 Misc 2d 176 (App Term, 2d & 11th Jud Dists 2001) (wherein a statement containing the language “I hereby assign to the provider of services and/or his/her assignees so much of my first party No-Fault automobile insurance benefits and rights…” [emphasis added] was held to be an assignment of the right to sue as well as the right to be paid.)

Although the Court need not consider defendant’s remaining arguments in opposition to the motion, the Court notes that defendant argues that plaintiff has failed to prove medical necessity of the transportation services claimed. However, defendant fails to establish that such a defense was raised in a timely denial of the plaintiff’s claims. Absent such a denial, defendant has waived such a defense. See Amaze Medical Supply Inc. v. Eagle Ins. Co., 2 Misc 3d 139(A) (App Term, 2d & 11th Jud Dists 2004); A.B. Medical Services Pllc v. CNA Ins. Co., 1 Misc 3d 137(A) (App Term 1st Dept 2004).

Accordingly, plaintiff has failed to establish a prima facie case of entitlement to judgment as a matter of law. Consequently summary judgment is denied.

The foregoing shall constitute the Decision and Order of the Court.

Dated: July 22, 2004

DONALD SCOTT KURTZ

Judge, Civil Court

Civil Court, Queens County

44207/03

Bernice D. Siegal, J.

The plaintiff, a health care provider, commenced the within action to recover first party benefits under No-Fault for transportation services ( i.e., 29 round trip visits to a medical facility ) provided to plaintiff’s assignor, Oksana Kazinets, from April 16, 2002 through July 18, 2002, for which defendant insurer was billed a total of $900, together with statutory interest and attorney’s fees. Defendant insurer interposed an answer containing affirmative defenses, including the lack of medical necessity for the services rendered and that the assignor did not sustain injuries compensable under No-Fault. Plaintiff brings the instant motion for summary judgment, while defendant cross-moves for summary judgment dismissing the complaint and plaintiff, unbelievably, cross moves for the same relief demanded in the main motion and for additional relief.

For the reasons set forth below, plaintiff’s main motion is denied and its cross motion is considered only as opposition to defendant’s cross and reply to defendant’s opposition, and defendant’s cross motion is denied as premature.

Procedural Posture

In the fairyland of no fault litigation, where the rules of the court and the Civil Practice Law and Rules seem not to apply, plaintiff has submitted, in addition to its original motion for summary judgment, papers denoted as a “reply to opposition ” and ” cross-motion for summary judgment.” Plaintiff’s counsel has, in this and numerous other cases, forced this nonsense upon the court and plaintiff’s adversary despite there being no provision in the CPLR permitting such a “cross-motion” to a cross-motion. Significantly, CPLR § 2215 provides, in pertinent part, that ” a party may serve upon the moving party [ i.e., in this case the court maintains that moving party means plaintiff, and NOT the cross-[*2]moving party – here, the defendant] a notice of cross-motion demanding relief****.” Not incredibly, extensive research finds no previous reported decision on such a procedural ploy. However, the rules of engagement are specifically detailed in the CPLR, and the rules clearly bar the service of supplemental motion papers without leave of court ( CPLR § 2214[c]; see also Rosenman Colin Freund Lewis & Cohen -v- Edelman 165 AD 2nd 533 [ 1st Dept. 1991] ). Plaintiff’s cross to defendant’s cross is nothing more than the impermissible service of supplemental papers.

Moreover, the plaintiff’s ” cross-motion ” even if it were otherwise permissible is, insofar as the notice of same, defective on its face as it fails to adequately specify ” the supporting papers upon which the motion is based,” as mandated by CPLR § 2214(a) (see also Uniform Rules for the New York City Civil Court § 208.10[a]). The rules require that the notice specifically inform the court and the adversary of the contents of the motions, and substantially comply with the form therein, to wit, “Upon the affidavit of —————-, sworn to on —————-, and upon (list supporting papers, if any).” Id. Further, the notice must provide some detail about the underlying matter and nature of the motion, that is “[t]he above entitled action is for (briefly state the nature of action…). This actions (is)(is not) on the trial calender.” Id. Instead, movant merely states:

“That upon the annexed affidavits and supporting affirmation

of ***Esq., dated July 8, 2003, and upon the pleadings and proceedings heretofore had herein, the under signed will move

this Court…for an order directing the entry of Summary Judgment…”

Nowhere is the court advised as to the substance of the underlying action or the actual affidavits annexed. Demanding this disclosure on the notice of motion is not a frivolous desire but rather one which speaks to the practicality of the CPLR and Court rules. An adversary and the court should be able to tell by merely looking at the notice received what is contained within, whether any papers are missing, what is the underlying action and the current relief sought. Without such detail on the notice itself, one may only learn of missing affidavits upon the return date, too late to respond or the court may inadvertently decide the motion on incomplete papers. Any omissions or defects could render the motion a nullity upon the return date.

Moreover, plaintiff’s cross motion demands the same relief as its primary motion, to wit, summary judgment. “Multiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause.” (Public Service Mutual Insurance Co. -v- Windsor Place Corp. 238 AD2d 142, 143 [1st Dept. 1997]). This axiom holds true even if a prior summary judgment were denied on other than substantive grounds. (cf. Lefreniere -v- Capital District Transportation Authority, 105 AD2d 517 [3rd Dept 1984]). The cross motion appears to be an attempt to cure the defects in the primary motion, and as such should not be entertained by the court. Additionally, plaintiff has, in its ” cross-motion,” improperly attempted to raise new issues for the first time (see Klimis -v- Lopez, 290 Ad 2nd 538 [ 2nd Dept. 2002] ). Therefore, in view of the above, the court will deem and consider this latter submission from plaintiff ONLY as a reply to defendant’s opposition and as opposition to defendant’s cross-motion, but NOT as a [*3]separate “cross-motion” to defendant’s cross-motion.

As to the notice of plaintiff’s main motion, the movant has wholly failed to properly apprise the court of the papers annexed, etc. in violation of the court rules. Additionally, plaintiff’s “supplement to main motion” served on October 24, 2003 ( three days before the October 27, 2003 return date) is, as is the “cross motion,” nothing more than the impermissible service of supplemental papers without leave of court. Furthermore, even if the court were to consider this supplement to the main motion, the affirmation is of the attorney who is without the requisite personal knowledge to lay a foundation for the hearsay document (e.g., the purported assignment of benefits) annexed thereto. It is well settled that a proponent of a motion must come forth with facts in admissible form, either by some one with personal knowledge of the facts or by affirmation with admissible documentary proof. (See Zuckerman -v- City of New York, 49 NY2d 557). Accordingly, the assignment of benefits is not properly before the court.

Findings of Fact and Conclusions of Law

The plaintiff’s motion is denied, in the first instance, because plaintiff has failed to establish a prima facie case for entitlement to recover unpaid benefits under No-Fault. It is incumbent for plaintiff to prevail in a summary judgment motion in a No-Fault action to demonstrate that it had submitted complete proof of claim ( see S& M Supply, Inc. -v- GEICO Insurance, 2003 WL 21960343 [ N.Y. Sup. App Term 2003]), with the assignment of benefits being a necessary component of such complete proof of claim ( see A.B. Medical Services, PLLC -v- Progressive Insurance, 2003 WL 21005006 [ N.Y. Sup. App. Term 2003; Vinings Spinal Diagnostic, P.C. -v- Liberty Mutual Insurance Company 186 Misc 2nd 287). Plaintiff’s papers initially submitted on its motion for summary judgment were devoid of any assignment. While the plaintiff attempted to correct such omission by annexing a copy of the assignment to its October 24, 2003 ” supplement to main motion”, such ” supplement ” has been ruled, above, by the court to be a nullity which will not be considered because, among other things, it was impermissibly served without leave of court. Plaintiff’s motion is further denied because it is defective for the reasons stated above, while the cross-motion by defendant is denied as premature, as follows:

The defendant’s opposition and cross-moving papers include, among other things, defendant’s discovery demands dated January 31, 2003; defendant’s motion to preclude submitted on September 3, 2003 and the stipulation by the parties, “so-ordered ” by the court on September 3, 2003, wherein upon defendant’s withdrawal of its motion to preclude, plaintiff agreed to be precluded from “offering evidence at time of trial ” unless it provided complete verified responses to defendant’s discovery demands within 60 days of the date of the stipulation.”

With respect to the stipulation signed by the parties and “so-ordered” by the court, conditionally precluding the plaintiff in this action, as this Court has recently stated, “[I]t has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except for certain limited circumstances not even alleged to be present *** Nishman v. DeMarco, 76 AD2d 360 (2nd Dept. 1980); Siltan v. City of New York, 300 AD2d 298 [2nd Dept. 2002]; In re Evelyn P., 135 AD2d 716 [2nd Dept. [*4]1987].” (Hoss Medical Services, P.C. -v- GEICO, ___Misc 3d___, 2004 NY Slip Op. 24213 (N.Y. Civ Ct). Such a “so-ordered” stipulation will function as a conditional order of preclusion (Siltan -v- City of New York, supra) and, in the event of noncompliance with same, plaintiff may be subject to dismissal if preclusion will prevent plaintiff from making a prima facie case (Jenkinson -v- Naccarato, 286 AD 2nd 420 [ 2nd Dept. 2001]).

However, the plaintiff, by virtue of CPLR § 3214(b) and plaintiff’s notice of motion for summary judgment, served on July 8, 2003 and made returnable on October 27, 2003, has escaped, at least temporarily, the force of the September 3, 2003 conditional preclusion order, as CPLR § 3214 (b) provides that service of a notice of motion for summary judgment “stays disclosure until determination of the motion***.”

Accordingly, in view of the above statutory stay, the cross-motion by defendant for dismissal is denied without prejudice as follows: In view of the court’s now having determined plaintiff’s motion for summary judgment and denying same, the stay of disclosure, pursuant to CPLR § 3214(b), is now vacated and the terms of the ” so-ordered” stipulation are now revived; the only modification being that plaintiff’s time to serve complete verified responses to defendant’s discovery demands is extended to 60 days from service upon plaintiff of a copy of this order with notice of entry. In the event of noncompliance by plaintiff, defendant is given leave to renew its cross-motion for dismissal.

_________________________

DATE: June 30, 2004 BERNICE D. SIEGAL

J.C.C.