APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), dated April 17, 2006, after a nonjury trial, in favor of plaintiff and awarding it judgment in the principal sum of $2,670.40.

Per Curiam.

Appeal from order (Fernando Tapia, J.) dated April 17, 2006, is deemed to be an appeal from a judgment (same court and Judge), entered September 6, 2006, and so considered, judgment reversed, with $25 costs, and the complaint dismissed.

In this action to recover first party no-fault benefits, plaintiff failed to meet its evidentiary burden of establishing a reasonable justification for the untimely submission of its claims to defendant. It is undisputed that the health services for which plaintiff seeks to recover no-fault benefits were rendered in November 2003 and that plaintiff did not submit its claims to defendant until March 16, 2004. Defendant denied the claims as untimely and afforded plaintiff the opportunity to submit written proof showing a “clear and reasonable justification” for its failure to comply with the statutory time frame for the filing of claims (see Matter of Medical Socy. Of State of NY v Serio, 100 NY2d 854 [2003]). The sole issue at trial was whether plaintiff had a reasonable justification for its delay in submitting the claims to defendant.

To the extent that plaintiff’s trial proof showed that it mistakenly submitted the claims to the wrong insurer (Allstate Insurance Company) in December 2003, thus justifying its initial delay in submitting the claims to defendant (see 11 NYCRR 65-3.5[l]), its proof was insufficient to establish the date the claims were denied by Allstate or demonstrate a reasonable justification for the subsequent unexplained period of delay prior to submission of the claims to defendant (see NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). The trial court’s contrary determination, insofar as it rested on a finding that defendant failed to show that it was prejudiced by plaintiff’s untimely claims, was improper, since there is no authority in the No-Fault statute or regulations imposing such requirement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur

Decision Date: July 13, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 9, 2007, which granted plaintiff’s motion for summary judgment.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered February 9, 2007, affirmed, without costs.

In this action to recover first party no-fault benefits, defendant’s submission in support of its staged accident defense was insufficient to establish a “founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 2009 NY Slip Op 50493[U] [2009]). To the extent that defendant purports to rely upon a policy exclusion, any such defense is precluded in view of defendant’s failure to timely deny the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an amended order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered May 4, 2007, which denied his motion for summary judgment.

Per Curiam.

Order (Manuel J. Mendez, J.), entered May 4, 2007, affirmed, with $10 costs.

Defendant’s NF-10 form, which stated that plaintiff’s no-fault claim was denied based on the results of an independent peer review, sufficiently apprised plaintiff of the factual basis for the denial (see 11 NYCRR 65-3.8[b][4]; New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 39 AD3d 832 [2007]). The initial peer review report relied upon by defendant, as amplified upon defendant’s receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur

Decision Date: June 29, 2009

[*1]

Supreme Court, Appellate Term, First Department, June 19, 2009

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina & Edward Satran, Woodbury (Edward Satran of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for respondent.

{**24 Misc 3d at 44} OPINION OF THE COURT

Per Curiam.

Judgment, entered on or about February 15, 2007, affirmed, with $25 costs.

Plaintiff, a health services provider, commenced this action to recover first-party no-fault benefits for health services rendered to plaintiff’s assignor (Burgos), who was involved in a motor vehicle accident on August 4, 2003. At the time of the accident, Burgos was driving a rental car owned by nonparty Manhattan Ford Lincoln Mercury, Inc. and allegedly insured by nonparty Fidelity and Guaranty Insurance Company. Burgos’ insurer, defendant Government Employees Insurance Company (GEICO), denied plaintiff’s no-fault claim on the ground that no-fault benefits were payable by Fidelity. GEICO stipulated to plaintiff’s prima facie case and raised as its sole defense that it was not obligated to pay plaintiff’s claim since Burgos’ insured vehicle was not involved in the accident and the payment of first-party benefits was the sole responsibility of Fidelity, as Manhattan Ford’s insurer. After trial, the court awarded judgment to plaintiff, holding that GEICO’s objection to payment did not raise an issue of coverage, but rather one of priority of payment, which under Insurance Law § 5105 (b) and applicable regulations must be submitted to arbitration.

Civil Court properly determined that it could not adjudicate the threshold issue raised at trial by GEICO, viz., whether it or Fidelity was primarily responsible for the payment of the first-party benefits sought by plaintiff. Under Insurance Law § 5105 (b), arbitration shall be “utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits” (Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). GEICO’s argument that its denial of benefits raised an issue of coverage because it was not “otherwise liable” for the payment of first-party benefits (see 11 NYCRR 65-3[*2].12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute{**24 Misc 3d at 45} automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment. 11 NYCRR 65-4.11 (a) (6) pertinently provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority of payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” GEICO, as “the first insurer to whom notice of proof of claim [was] given” (11 NYCRR 65-3.12 [b]), was obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues relating to the priority or source of payment. Since GEICO denied payment of plaintiff’s claim on the stated ground that no-fault benefits were payable by Fidelity, its denial raised a question concerning the responsibility or obligation to pay first-party benefits, an inter-company dispute which must be resolved through mandatory arbitration (see Paramount Ins. Co. v Miccio, 169 AD2d 761 [1991]; Pacific Ins. Co. v State Farm, 150 AD2d at 456), not by way of a defense to plaintiff’s plenary no-fault action.

McKeon, P.J., and Heitler, J., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 17, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 17, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $554.76 is granted. The Clerk is directed to enter judgment accordingly.

Plaintiff established a prima facie entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue. Even assuming that defendant timely denied plaintiff’s no-fault claims, the unsworn chiropractor’s report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form, a defect which requires its exclusion from consideration (see CPLR 2106; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], 2007 NY Slip Op 50138[U] [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur
Decision Date: April 22, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 4, 2007, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 4,
2007, affirmed, with $10 costs.

Although plaintiff’s claim for no-fault benefits was concededly submitted to defendant beyond the 45-day statutory period (see 11 NYCRR 65-1.1), the record shows that plaintiff’s claim submission included correspondence attempting to explain its delay in filing. Under the regulations, an insurer must not only provide a claimant the opportunity to submit a reasonable justification for any late notice (see 11 NYCRR 65-3.3[a]), but must also establish procedures to “ensure due consideration of denial of claims based upon late filings” and must give “appropriate consideration for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer” (Matter of Medical Socy. of the State of New York v Serio, 100 NY2d 854, 863 [2003]). Inasmuch as the record does not indicate whether defendant gave any consideration to plaintiff’s explanation for its tardy submission as required by the regulations, we sustain the denial of defendant’s motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 20, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Shlomo S. Hagler, J.), entered March 14, 2007, which denied its motion to “revise” the award of attorney’s fees issued to plaintiff in this first party no-fault benefits action.

Per Curiam.
Order (Shlomo S. Hagler, J.), entered March 14, 2007 affirmed, with $10 costs, for the reasons stated by Shlomo S. Hagler, J., at Civil Court. (See 15 Misc 3d 766 2007). (See also LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290, 1292 [2007], lv granted 10 NY3d 717 [2008].)

THIS CONSTITUTES THE ORDER OF THE COURT.
Decision Date: January 29, 2009

—[*1] Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellant.

Marjorie E. Bornes, New York, for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 1, 2007, which granted plaintiff insurer’s motion for summary judgment declaring that it has no duty to defend and indemnify defendant insureds in an underlying personal injury action brought by defendant-appellant, and denied appellant’s cross motion for summary judgment directing plaintiff to satisfy the judgment in the underlying action, affirmed, without costs.

Although appellant had provided plaintiff with information about the accident shortly after it occurred, in compliance with the policy, she failed to give plaintiff notice of her suit against its insureds until 14 months after the suit was commenced and she had obtained an order for a default judgment. Plaintiff having thus lost its right to appear and interpose an answer, its disclaimer of coverage was proper (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v B.O. Astra Mgt. Corp., 39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Concur—Tom, J.P., Nardelli, Sweeny and DeGrasse, JJ.

McGuire, J., concurs in a separate memorandum as follows: I agree with the majority’s implicit conclusion that plaintiff insurer American Transit Insurance Co. (ATIC) was required to show that it was prejudiced by the failure of defendant Klausner, the plaintiff in the underlying personal injury action, to provide timely notice to ATIC of the action she had commenced against ATIC’s insured. I write separately because I believe we should explain that conclusion, especially in light of decisions by this Court and the Second Department that appear to support a different conclusion.

Although ATIC did not receive timely notice of the action from Klausner, it did receive [*2]timely notice of the accident, as is evinced by the letter it sent to Klausner less than two months after the accident requesting that she complete a form providing information about the accident and her injuries. Indeed, ATIC conceded in its reply papers that it had received timely notice of the accident. Moreover, that letter addresses Klausner as “Claimant.” According to Klausner’s submission opposing ATIC’s motion for summary judgment, she completed and returned the form, and her attorney thereafter provided medical reports and records to ATIC and engaged in settlement discussions with ATIC. ATIC did not dispute these assertions in its reply papers.

In Argo Corp. v Greater N.Y. Mut. Ins. Co. (4 NY3d 332, 340 [2005]), the Court of Appeals held that a commercial liability insurer “was not required to show prejudice before declining coverage for late notice of lawsuit.” The Court stressed in its opinion, however, that the carrier also had not received timely notice of claim (id. at 339-340). As the Court of Appeals noted in Argo, “[i]n Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), we again departed from the general no-prejudice rule and held that the carrier must show prejudice before disclaiming based on late notice of a lawsuit in the SUM [supplementary underinsured motorist] context” (4 NY3d at 339). In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468 [2005]), the plaintiff in a declaratory judgment action against her insurance carrier “did not submit her notice of SUM claim as soon as practicable” (id. at 474). Although the notice of claim was untimely, the Court accepted the plaintiff’s argument that the Court should “relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident” (id.).

Because this case is not one involving SUM coverage, Klausner cannot maintain that Matter of Brandon and Rekemeyer require relaxation of the no-prejudice rule. Indeed, Rekemeyer arguably supports the opposite conclusion: timely notice of the accident should not lead to relaxation of the no-prejudice rule because this is not a SUM case. Moreover, the proposition that ATIC was required to show that it was prejudiced by Klausner’s failure to give timely notice of her suit against ATIC’s insured is at least called into question by our recent decision in 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co. (54 AD3d 593 [2008]). In 1700 Broadway, the insured did not give notice to the commercial general liability insurer of the underlying personal injury action against the insured until eight months after the insured was served with the summons and complaint. This Court held that the unexplained delay “constituted late notice as a matter of law” and that the insurer “was not required to demonstrate prejudice by reason of the delay in order to disclaim coverage” (id. at 593-594). Although nothing in this Court’s opinion suggests that the insurer had received timely notice either of the occurrence or of the claim, nothing in the opinion suggests that whether either notice had been given in timely fashion was relevant to the holding. Moreover, the Second Department has held that an insurer validly disclaimed coverage on the ground of untimely notice of the underlying personal injury action against its insured even though the insurer had received written notice of the accident one month after the accident and one of the plaintiffs in the personal injury action had sought no-fault benefits from the insurer not later than 3½ months after the accident (Matter of GEICO Co. v Wingo, 36 AD3d 908 [2007]).

As the majority indicates, this appeal is controlled by our decision in American Tr. Ins. Co. v B.O. Astra Mgt. Corp. (39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Consistent with the emphasis the Court of Appeals placed in Argo on the fact that the carrier had not received timely notice of claim, this Court held that “[h]aving received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the [*3]claimant’s commencement of litigation unless it was prejudiced by the late notice” (id. at 432). This case is a fortiori to B.O. Astra, because ATIC received both timely notice of the accident and timely notice of Klausner’s claim.

The majority’s analysis premises the propriety of the disclaimer of coverage on ATIC “having . . . lost its right to appear and interpose an answer.” For this reason, and because the majority goes on to cite B.O. Astra, it appears that the majority has concluded, albeit implicitly, that ATIC was required to show prejudice. As stated above, I agree that B.O. Astra requires that conclusion. Unquestionably, moreover, ATIC was prejudiced by Klausner’s failure to provide notice until after she had obtained a default judgment. As Justice Lehner observed in his written decision granting ATIC’s motion for summary judgment, although ATIC “could . . . have applied to vacate the default . . . on the part of its insured, it is far from clear whether such a motion would be granted, and it could be prejudicial to [ATIC’s] rights to require it to appear for its insured under such circumstances.” I would add only—I doubt Justice Lehner meant to suggest otherwise—that it is prejudicial to ATIC’s rights to require it to shoulder the burden of moving to vacate the default.

Finally, there is no merit to Klausner’s argument that ATIC’s disclaimer is really a disclaimer for failure to cooperate. Although an insurer can disclaim on account of its insured’s failure to cooperate in the handling of a claim, ATIC disclaimed on the distinct ground of lack of timely notice of the underlying action. The requirement of timely notice of that action is a condition precedent to ATIC’s liability (American Tr. Ins. Co. v Sartor, 3 NY3d 71, 76 [2004]), and Klausner failed to exercise her independent right to fulfill this policy obligation (id. [“the Legislature has given an injured party the statutory right to fulfill this policy obligation (of timely notice) by allowing any necessary notification to be issued by the claimant”]).

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000, and granted plaintiff Carnegie Hill Orthopedic Services partial summary judgment in the principal sum of $41,157.88.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiffs established prima case their entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiff Devonshire established prima case its entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008