APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from that portion of an order of Civil Court, New York County (Debra Rose Samuels, J.), entered February 6, 2004, which denied their motion for summary judgment.

PER CURIAM:

Order (Debra Rose Samuels, J.) entered February 6, 2004, reversed, with $10 costs, plaintiffs’ motion for summary judgment is granted in the amount demanded in the complaint and the matter is remanded to Civil Court for a calculation of statutory interest and an assessment of attorneys’ fees due thereon, and for entry of judgment.

In this action to recover first party no-fault benefits for medical services rendered to its assignors, the plaintiff health care providers established a prima facie entitlement to summary judgment by evidentiary proof that they submitted claims between December 27, 2002 and April 8, 2003, setting forth the facts and the amounts thereof, and that payment of no-fault benefits was overdue as defendant neither paid nor denied the claims within 30 days as required by Insurance Law § 5106(a) (see Mary Immaculate Hospital v Allstate Ins. Co., 5 AD3d 742 [2004]).

We find unavailing defendant’s argument that plaintiffs are not entitled to judgment because the assignors failed to submit to examinations under oath (EUOs). While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the “Conditions” section that an injured person “shall … as may reasonably be [*2]required submit to examinations under oath …,” defendant did not establish that the insurance policy in effect contained the no-fault endorsement authorizing EUOs. Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault protection created by the statute and implementing regulations cannot be qualified by the conditions of the liability portion of the policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022U [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: November 16, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from that portion an order of the Civil Court, Bronx County entered January 24, 2005 (Larry Schachner, J.) which denied its cross motion for summary judgment dismissing the complaint.

PER CURIAM

Order entered January 24, 2005 (Larry Schachner, J.), modified to the extent of granting summary judgment to defendant dismissing the complaint; as modified, affirmed, without costs.

Plaintiff provided medical services to its assignor and subsequently submitted claims to defendant insurer seeking first-party no-fault benefits. Defendant delayed payment on the ground that plaintiff’s assignor failed to respond to timely requests for additional verification.

Defendant established its entitlement to summary judgment dismissing the complaint. An insurer is not obligated to pay or deny a claim until requested verifications have been provided (see 11 NYCRR § 65-3.8[b][3]). The record reveals that plaintiff and its assignor failed to respond to defendant’s timely requests for additional verification. Accordingly, the period within which defendant was required to respond to plaintiff’s claims did not begin to run, and any claim for payment was premature (see Nyack Hospital v State Farm Mutual Automobile Insurance Company, 19 AD3d 569 [2005]).

This constitutes the decision and order of this court.
I concur
Decision Date: October 26, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered March 30, 2004 (Irving Rosen, J.) which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered March 30, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted, defendant’s cross motion is denied and the matter is remanded to Civil Court for a calculation of statutory interest, an assessment of attorney’s fees due thereon and entry of judgment.

Plaintiff health care provider commenced this action to recover $1,080.90 in first-party no-fault benefits for medical services rendered in February and March 2002 to its assignor, Harnarine Sumeer (Sumeer), for injuries allegedly sustained in a motor vehicle accident on December 17, 2001. Plaintiff mailed its claim on May 30, 2002 and defendant acknowledged receipt thereof on June 3, 2002. The suit is premised on defendant’s failure to pay or deny the claim within 30 days after its receipt. Defendant’s reason for denying the claim, as stated in its Denial Of Claim Form dated August 15, 2002, was Sumeer’s nonattendance at scheduled [*2]examinations under oath (EUOs).

Plaintiff established a prima facie showing of entitlement to judgment as a matter of law by proof that its claim 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]).

Defendant failed to raise triable issues of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing EUOs pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the April 5, 2002 effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are not applicable to claims until new policies containing the revised endorsement are issued or renewed (see Star Medical Services PC v Eagle Insurance Company, 6 Misc3d 56 [2004]). Consequently, absent a showing that the subject policy contained an endorsement permitting EUOs, defendant was not entitled to a tolling of the 30-day period (11 NYCRR 65-3.8[c]) and its denial of plaintiff’s claim was untimely.

This constitutes the decision and order of the court.
Decision Date: September 09, 2005

—[*1]

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this action seeking recovery of no-fault benefits, Supreme Court erred in granting defendant insurer’s motion for summary judgment dismissing the complaint. The record does not establish, as a matter of law, that, under the circumstances, plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. While defendant remains free to raise as a defense at trial its claim that plaintiff is seeking a double recovery, the existing record does not establish such a defense as a matter of law. Finally, plaintiff is not precluded from asserting the claims at bar, based on injuries he allegedly incurred in a 1999 accident, by an assignment of benefits he executed in 1993, more than six years prior to that accident. Concur—Mazzarelli, J.P., Andrias, Friedman, Gonzalez and Catterson, JJ.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, Bronx County, entered November 20, 2003 (Irving Rosen, J.) denying its motion for summary judgment.

PER CURIAM:

Order entered November 20, 2003 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to Civil Court for (1) the assessment of appropriate attorney’s fees and interest pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $2,321.38, plus appropriate interest and attorney’s fees.

Plaintiff was entitled to summary judgment on the complaint inasmuch as defendant insurance company did not timely deny plaintiff’s claim for no-fault benefits within 30 days after proof of claim was received (see Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Under the circumstances, defendant insurer [*2]waived any defenses relating to the medical necessity of the treatment rendered (Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) as well as to the facial sufficiency of the patient’s assignment of no-fault benefits submitted by plaintiff (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]).

Furthermore, defendant failed to raise an issue of fact as to whether defendant’s denial of coverage was “premised on the fact or 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 at 199; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 8 AD3d 250 [2004]; Mt. Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

This constitutes the decision and order of the court.
Decision Date: June 02, 2005

—[*1]

Order of the Appellate Term of the State of New York, First Department, entered on or about June 18, 2003, which, in an action by a health provider against a no-fault insurer to recover on an assigned no-fault claim, reversed an order, Civil Court, Bronx County (Wilma Guzman, J.), entered October 24, 2001, denying plaintiff’s motion for summary judgment, and, inter alia, granted the motion, unanimously affirmed, without costs.

Plaintiff submitted a claim to defendant for orthopedic services it provided to its assignor from November 4, 1998 to February 8, 1999. More than 30 days later, and after plaintiff had commenced the instant action alleging that defendant had neither paid nor denied the claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), defendant rejected a portion of the claim, explaining that it had previously denied all further orthopedic benefits effective January 26, 1999, and that it was accordingly denying the claim insofar as it sought benefits for services provided after that date. It appears that on January 19, 1999, defendant had sent plaintiff’s assignor a denial of claim form advising that all further orthopedic benefits would be denied effective January 26, 1999, based on an independent medical examination showing no further need for treatment. Appellate Term rejected defendant’s argument that the January 19, 1999 denial of claim form it had sent to plaintiff’s assignor is imputable to plaintiff (citing Atlantis Med. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40043U [Dist Ct, Nassau County 2002], and held that defendant’s failure to respond to plaintiff’s claim within the statutory 30-day time limit precluded defendant from defending against the claim on the ground that any treatment after January 26, 1999 was unnecessary (citing Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).

We hold that the No-Fault Law itself (Insurance Law art 51), and the regulations promulgated thereunder for settlement of claims (11 NYCRR 65.15), require that “When a provider of medical services [first] submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier [blanket] denial issued directly to the insured” (Atlantis Med., 2002 NY Slip Op 40043U at *9; see also Aurora Chiropractic, P.C. v Farm & Cas. Ins. [*2]Co. of Conn., 4 Misc 3d 1026 [A], 2004 NY Slip Op 51066[U], *2-3 [2004]; compare Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2d Dept 2004]). Concur—Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ. [See 196 Misc 2d 322.]

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, Bronx County, entered on or about January 13, 2004 (Irving Rosen, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered on or about January 13, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to the Civil Court for (1) the assessment of reasonable attorney’s fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $12,836.22, plus appropriate interest and attorney’s fees (see St. Clare’s Hospital v State Farm Mutual Automobile Insurance Co., 215 AD2d 641 [1995]).

Plaintiff seeks to recover first party no-fault insurance benefits for medical services rendered to its assignors who were injured in an automobile accident. Plaintiff made a prima facie showing that defendant failed to pay or deny the claims within 30 days after defendant received plaintiff’s demands (see Insurance Law § 5106 [a] and 11 NYCRR [*2]65.15[g][3]; Presbyterian Hospital in the City of New York v Maryland Casualty Company, 90 NY2d 274, 278 [1997]) and that payment of plaintiff’s claims was overdue. The sworn statement of plaintiff’s billing manager that the claim forms were mailed to defendant on the date each was signed ^[FN1] is uncontradicted on this record. Accordingly, plaintiff’s unopposed motion for summary judgment should have been granted (see CPLR 3212[b]).

This constitutes the decision and order of the court.
I concur.
I concur.
I concur.
Decision Date: November 24, 2004

Footnotes

Footnote 1: The record contains forms signed October 2, 2002, October 8, 2002, October 16, 2002 and November 6, 2002 for the claims with respect to Julio Cruz and September 30, 2002, October 8, 2002, October 29, 2002, November 6, 2002 and November 26, 2002 for the claims with respect to Steven Rosa.

—[*1]

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered September 18, 2003, which, in an action to recover on 68 claims for no-fault insurance benefits assigned to plaintiff by 68 different assignors, granted defendant’s motion to sever the claim of each assignor into a separate action, unanimously affirmed, without costs.

The IAS court properly exercised its discretion under CPLR 603 in granting defendant’s motion to sever plaintiff’s 68 assigned claims for no-fault insurance benefits into separate actions. It is undisputed that the claims arise from 68 different accidents, and have been assigned to plaintiff, a vendor of medical services, by 68 different assignors. Even if it is assumed that the insurance policies of the 68 assignors are identical in all relevant respects—a matter addressed neither in the complaint nor in plaintiff’s papers opposing the motion—each claim will raise unique legal and factual issues. In this regard, we note that defendant’s answer places at issue, inter alia, the validity of the assignments, the necessity and reasonableness of plaintiff’s services in light of each assignor’s medical condition, defendant’s receipt of bills from plaintiff, and the sufficiency of the no-fault forms that have been submitted. The viability of these defenses will depend, in the case of each assignor’s claim, on the particular facts relating to that claim. At the same time, the claims are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical. That all of the claims are for services provided by the same vendor, and are being asserted against the same insurance company, does not change the fact that individual issues are likely to predominate in the resolution of each claim.

Under the circumstances, to try all 68 claims together would be unwieldy and would create a substantial risk of confusing the trier of fact. Accordingly, the interests of convenience and avoidance of prejudice are best served by severing the claims (see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; Bender v Underwood, 93 AD2d 747, 748 [1983]; Reid v Haher, 88 AD2d 873, 873-874 [1982]; Schneph v New York Times Co., 21 AD2d 599, 600-601 [1964]).

We note that our decision is consistent with a recent federal decision in a remarkably similar case (Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [US Dist [*2]Ct, SD NY, July 15, 2004]). The plaintiff in Boston Post Road was a medical services provider that sued the same insurance company on no-fault claims arising from 59 different accidents, which had been assigned to the plaintiff by 59 different patients. In granting the insurance company’s motion to sever the claims, the Boston Post Road court stated, among other things, that the claims “arise out of distinct automobile accidents which led to different injuries to different individuals who underwent distinct medical services, payment for which was denied for varying reasons” (2004 WL at *1, 2004 US Dist LEXIS at *5). The court further noted that “[e]ven if the assignors’ insurance contracts are identical, the legal and factual issues involved in these claims are not,” since the defendant’s “answer pleaded different defenses that will apply to some claims and not to others,” meaning that “different provisions of the policies will be relevant to different claims” (2004 WL at *2, 2004 US Dist LEXIS at *5-6). These observations are equally applicable here.

Plaintiff’s reliance on the Second Department’s decision in Hempstead Gen. Hosp. v Liberty Mut. Ins. Co. (134 AD2d 569 [1987]) is unavailing. While Hempstead held that, under the particular circumstances of that case, Supreme Court had acted within its discretion in denying a motion to sever 29 assigned claims, the decision does not stand for the proposition that the granting of such a severance motion—in a case involving more than twice as many assigned claims—is an abuse of judicial discretion warranting reversal on appeal. In any event, Hempstead must be read in light of the Second Department’s much more recent decision in Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp. (supra). Mount Sinai held that Supreme Court “providently exercised its discretion” in granting a motion to sever five assigned no-fault claims that, inter alia, arose from “accidents on five different dates” and had “no relation or similarity to each other, other than the fact that the no-fault benefits were not paid” (291 AD2d at 536). Concur—Tom, J.P., Saxe, Williams, Friedman and Marlow, JJ.

—[*1]

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 10, 2003, which denied the application of Utica Mutual Insurance Company to vacate its default in failing to answer a petition brought by Victoria Insurance Company to confirm three arbitration awards, unanimously affirmed, with costs.

Utica Mutual did not, in support of its vacatur application, make the necessary showing of merit. Contrary to its contention, the arbitrator did not commit misconduct in refusing to grant an adjournment to permit Utica’s investigator to appear, since Utica had not given notice that it would call a witness. In any event, the investigator’s testimony would have been duplicative of reports previously submitted in an attempt to establish that the claims paid by Victoria Insurance and for which it sought reimbursement from Utica were fraudulent. Furthermore, since Utica has not offered any affidavit from its insured, the owners of the truck that caused the accident, to show that, contrary to Department of Motor Vehicles records, the truck was not modified to increase its weight to more than 6,500 pounds, we perceive no basis to conclude that there is merit to Utica’s argument that this was not an instance in which reimbursement of otherwise nonreimbursable no-fault benefits was permitted pursuant to Insurance Law § 5105 (a).

Although the awards did not meet the requirements of CPLR 7507 that they be signed and affirmed by the arbitrator, and the issue is a question of law that can be raised for the first time on appeal (see Chateau D’If Corp. v City of New York, 219 AD2d 205, 209-210 [1996], lv denied 88 NY2d 811 [1996]), Utica is estopped from now raising the issue. Had it been raised as one of the affirmative defenses asserted by Utica in its proposed answer, Victoria would have been able to obtain a signed copy of the award from the arbitrator within the one-year period for bringing a proceeding to confirm an award. [*2]

We have reviewed Utica’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Ellerin, Williams and Gonzalez, JJ.

—

Order, Supreme Court, New York County (Richard Braun, J.), entered May 5, 2003, which denied petitioner insurer’s application to stay arbitration of respondent’s underinsured motorist claim, unanimously affirmed, without costs.

The application to stay arbitration was properly denied on the ground that it was not made within 20 days after service of respondent’s demand (CPLR 7503 [c]). It does not avail petitioner that it timely commenced a proceeding to stay the arbitration in Queens County, which the Queens County court ordered transferred to New York County, and that it instituted the instant stay proceeding only because of ministerial difficulties it encountered in effectuating the transfer (cf. Matter of Metropolitan Prop. & Cas. Ins. Co. [Coping], 179 AD2d 499 [1992]). In any event, as the motion court also held, the petition lacks merit. Respondent notified petitioner insurer of the accident immediately after it happened, in connection with a no-fault claim. Neither at this time nor at any other time prior to the grant of summary judgment in the personal injury action respondent had brought, could she have known that the only defendant in that action with significant insurance coverage, the driver of the car in which she was a passenger and also insured by petitioner, would be absolved of liability, and that she therefore had a viable underinsurance claim against petitioner. Under such circumstances, it was the grant of summary judgment to defendant in the personal injury action that marked the commencement of respondent’s obligation to give written notice of claim “as soon as practicable” (see Matter of Allstate Ins. Co. v Sala, 226 AD2d 172 [1996], lv denied 89 NY2d 801 [1996]). Concur—Nardelli, J.P., Mazzarelli, Saxe and Friedman, JJ.