Civil Court of the City of New York, Kings County

131695/07

Plaintiff:

Sylvain R. Jakabovics, Esq.

2630 Ocean Avenue, Suite A-3

Brooklyn, NY 11229

Defendant:

Law Offices of Moira A. Doherty

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11553

Genine D. Edwards, J.

In this action, plaintiff seeks to recover no-fault benefits from the defendant. Plaintiff now moves for summary judgment and defendant cross-moves for the same relief.

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. St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge of the facts. See CPLR 3212 (b). If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991). Once the movant provides sufficient proof the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact. See Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2d Dept. 1996).

Plaintiff established a prima facie case as to the creation and mailing of the subject bill, in the amount of $1,104.00. Defendant, however, persuasively contends that plaintiff’s lawsuit is premature since the plaintiff failed to comply with outstanding verification requests. Defendant properly proved timely service of its initial verification request for an invoice, CPT codes and medical records. In response, plaintiff provided an invoice, but failed to provide proper CPT codes and medical records. Defendant sent a second and third verification request, acknowledging receipt of plaintiff’s invoice, but indicating that the proper coding and medical records were still [*2]outstanding. There was no further response from the plaintiff. Although plaintiff’s affiant indicated that it was his duty to handle verification requests and responses, he never asserted that he or anyone else did so in this matter.

This Court finds that the burden rests with the plaintiff to properly verify its claim. Plaintiff cannot simply rest on its laurels and ignore a verification request. See Lenox Hill Radiology and MIA P.C. v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 (Civ. Ct. New York County 2008). Defendant did all it could do by sending two follow-up requests. Since the plaintiff desires to be paid, the onus is on it to ensure that the defendant has all of the required information to verify and pay the claim. Plaintiff completely ignored its burden and commenced this action prematurely.

Furthermore, it should be noted that, whether the plaintiff possesses the verification requested or it is in the hands of the referring physician, plaintiff cannot shift its obligation to verify a claim to the defendant.

Accordingly, the complaint is dismissed.

This constitutes the decision and order of this Court.

Dated: February 26, 2009

____________________________

Genine D. Edwards

J.C.C.

Supreme Court, Kings County

5647/06

Plaintiff Attorney:Lawrence N. Rogak, LLC

Defendant Attorney:Brooke Lombardi, Esq.

Subin Associates LLP

Yvonne Lewis, J.

Counsel for Long Island Insurance Company has petitioned this court for a tripartite order to restore this action to the active calendar on the grounds that it was ministerially marked disposed by clerical error, amend the petition to include the affirmative defenses of fraud and lack of capacity to contract (renewal policies) since the insured is deceased, and grant it summary judgment on the basis of newly discovered evidence heretofore concealed by the respondent; to wit, the respondent, the pedestrian victim of a hit and run on November 16, 2005, intentionally failed to disclose (to the petitioner/insurer) that his father, who died on July 10, 2001, was the named insured under the insurance policy through which he asserts his claims for no-fault and uninsured motorist benefits and continued to renew bi-annually despite his passing. In addition, the petitioner notes that the subject policy itself provides, in salient part, that it may not be assigned without its written consent; that upon the death of the named insured, coverage will be provided for the legal representative (a role which the respondent has not established for himself herein) only with respect to the legal representative’s responsibility to maintain or use the covered vehicle; and, that the coverage will extend only until the end of the policy period, in this instance April 28, 2002. The petitioner notes further that Couch on Insurance, 3d Ed., §29:13 clearly provides that there is no contract to renew in the absence of a clear intent to that effect; that

“. . .because contract requires mutual assent of parties and meeting of minds, no contract can be formed between insurer and decedent (citing, Von Hillman v. colonial Penn Ins. Co., 19 Kan. App.2d 375, 869 P2d 248[1994]); and, that “a representative of a deceased insured’s estate has no authority to renew the policy in the insured’s behalf without informing the insurer of the insured’s death.”

As further evidence of the respondent’s duplicity, the petitioner notes that in December 2006, he cashed a partial premium refund with the “obviously” forged signature of his father, and that in an examination under oath conducted on May 16, 2008, the respondent testified that his [*2]father (who died on July 10, 2001) was the policyholder, furnished his father’s current address, and advised that he never owned a car and that he drove his father’s.

Counsel for petitioner furnished a supplemental affirmation in support of his request for summary judgement on the basis of the October 10, 2008 Appellate Division, Fourth Department case of Geico Ins. Co. v. Battaglia, 2008 NY Slip Op 07736, which held that the subject Insurance Company had “. . .established as a matter of law that its policy, as renewed, was void ab initio based on the material misrepresentation with respect to the [insured’s] status, i.e., that [the insured] was deceased” (referencing, Matter of Mercury Ins. Group v. Ocana, 46 AD3d 561). Counsel also notes that his initial October 11, 2007 motion to stay the arbitration had been denied without prejudice for his inadvertence in not having included a complete copy of the subject policy in his moving papers.

In opposition, counsel for Israel Greenfield, the respondent herein, asserts that the motion to restore should be denied inasmuch as the court repeatedly set motion schedules for petitioner to file orders to show cause on the ground of the insured’s undisclosed death, failed to adhere to the same, and instead filed the instant motion for summary judgment on the same ground. In addition, counsel argues that the request to amend the petition must also be denied as untimely inasmuch as CPLR §3024( c) clearly provides that a motion to correct pleadings shall be served within twenty days after service of the challenged pleading. Furthermore, counsel urges this court to deny the petitioner’s motions for a permanent stay of arbitration and for summary judgment as moot given that an arbitration hearing was held on September 10, 2008, the petitioner had a full and fair opportunity to participate therein, and the plain fact that an arbitrator’s award may not be vacated unless it is found that the arbitrator’s award lacked a rational basis (citing, Matter of Prudential Pro. & Cas. Ins. Co. v. Carleton, 145 AD2d 492 [2d Dept., 1988]). So too, CPLR Rule 3211 provides for dismissal of an action on the ground that an arbitration award has been rendered.

Respondent additionally argues that the petitioner’s allegation of fraud and lack of capacity to have renewed the subject insurance policy does not meet the separate standards for a stay of arbitration which requires a prima facie showing of non-coverage and summary judgment that necessitates a demonstration as to the absence of material issues of fact. To the contrary, the respondent maintains that though his father was the named insured he is nonetheless covered under the subject policy as a listed driver and hence an additional named insured on which basis he continued to renew the said policy rather than the imputed intent to wilfully conceal, deceive, misrepresent, or mislead that the petitioner alleges. The respondent also argues that his unfamiliarity with the terms of the policy and any requirement to disclose his father’s death is attributable solely to the fact that he was merely an additional insured and not a party to the initial contract; hence, a mistake or oversight, not fraud.

The petitioner has also moved this court, pursuant to CPLR 7511, for an order to vacate the arbitration award in the matter sub judice on the ground that there was no valid agreement to arbitrate. In fact, the petitioner asserts that the American Arbitration Association proceeded with its scheduled arbitration on September 10, 2008 despite having been advised that a request for a permanent stay of arbitration had been made to this court. In addition, the renewed policy under which the petitioner sought no-fault and uninsured motorists benefits was void ab initio (prior to the date of the subject accident) due to the policyholder’s unreported death. The petitioner also [*3]notes that its request for a temporary restraining order to stay the mentioned arbitration was denied by this court, following which on October 15, 2008, the respondent (son of the decedent policyholder) was awarded $100,000.00.

In opposition, the respondent asserts that none of the CPLR 7511 grounds for vacatur of an arbitration award has been met by the respondent who participated in the process by submitting discovery materials in connection therewith; to wit, respondent has not established that his rights were prejudiced by corruption, fraud, or misconduct in procuring the award; partiality of the arbitrator; the arbitrator exceeded his powers; the arbitrator failed to make a final and definite award; or a procedural failure that was not waived. In addition, the respondent contends that petitioner’s failure to have moved for a stay of arbitration prior to its conduct renders the present motion therefor untimely (citing, Bevona v. Valencia, 191 AD2d 192, 594 NYS2d 223 [1st Dept., 1993]) as does his participation in said proceeding via the discovery materials submitted and reviewed by the arbitrator who also gave the petitioner thirty days post arbitration to submit documentation in support of its contentions which identically undergird its motions for summary judgment and to vacate. Furthermore, the respondent notes that the purported affidavit in support of the petitioner’s motion to vacate is fatally defective in that its president’s signature is absent therefrom. In any event, the respondent argues that the failure to have apprised the insurer of the insured’s death in no way increased the former’s risk such that it can be said that the policy would not have been renewed in the respondent’s name. In this vein, the respondent asserts that cancellation of an automobile insurance policy may be prospective only, even if the application is deceptive or fraudulent (citing, Aetna Cas. & Surety Co. v. O’Connor, 8 NY2d 359; Matter of Liberty Mutual Ins. Co. v. McClellan, 127 AD2d 767; Middlesex Ins. Co. v. Carrero, 103 AD2d 694; and Teeter v. allstate Ins. Co., 9 AD2d 176, Aff’d 9 NY2d 655), and argues that “an insurer should not be permitted to raise fraud, which should have been discoverable upon a reasonable inquiry, as a basis for denying coverage to innocent third parties injured in an accident” (citing New Hampshire Indemnity Co. v. Flores, 2002 NY Slip Op 40024 [1]).

In addition to opposing the petitioner’s motion to vacate, the respondent has moved, pursuant to CPLR §7510, to confirm the above mentioned arbitration award decided on October 20, 2008. In support of that request, the respondent reasserts the fact that no stay had been in effect on September 10, 2008 when the arbitration was held, and that the petitioner’s request for a temporary restraining order on October 3, 2008 was denied. In addition to remaking its arguments in opposition to vacatur, the respondent notes that CPLR §7510 makes it clear that the court shall confirm such an award within one year after its delivery unless the same is vacated or modified upon a ground specified in CPLR §7511, none of which has been met by the petitioner, as discussed above.

In response, the petitioner reasserted its arguments in support of vacatur to the effect that the instant renewed insurance policy under which the arbitration was conducted was void ab initio as a result of the respondent having concealed the fact that his father, the policyholder, had died a little over four years prior to the subject accident.

This court agrees with the petitioner’s assertion that “because contract requires mutual assent of parties and meeting of minds, no contract can be formed between insurer and decedent (citing, Couch on Insurance, 3d Ed., §29:13 and Von Hillman v. colonial Penn Ins. Co., 19 Kan. [*4]App.2d 375, 869 P2d 248[1994]). It must also be conceded, as asserted by the respondent, that a stay of arbitration requires a prima facie showing of non-coverage and summary judgment necessitates a demonstration as to the absence of material issues of fact.

It is the respondent’s position that although his father was the named insured he is nonetheless covered under the subject policy as a listed driver and hence an additional named insured on which basis he continued to renew his father’s policy rather than the imputed intent to wilfully conceal, deceive, misrepresent, or mislead that the petitioner alleges. That the respondent was holding himself out as his father and had a fraudulent intent in renewing his father’s policy is made clear by his answers to the examination under oath wherein he identified his father as the insured, furnished his then deceased father’s current residential address, etc. and his earlier cashing of a refund check made out to his then deceased father.

In the Matter of Fireman’s Fund Insurance Company v. Freda, 156 AD2d 364, 548 NYS2d 319, the Appellate Division, Second Department, made it clear that the insurer waived any right to assert grounds not raised as a basis for denying coverage in its original letter of disclaimer in its petition to stay arbitration (citing, Insurance law §3420[d]; General Acc. Ins. Group v.Cirucci, 46 NY2d 862, 414 NYS2d 512). In said case the insurer had initially only asserted that the injured person was not a covered person and had not raised claims of untimely notice, failure to promptly send copies of legal papers, and settlement without its consent which were therefore deemed waived. The court went on to add, [h]owever, the first ground, that [the injured party] was not a “covered person,” constitutes a potentially valid basis for the denial of liability because Fireman’s Fund made no contract of insurance with the person injured in the accident (citing, United Serv. Auto. Assn. v. Meier, 89 AD2d 998, 454 NYS2d 319). Consequently, Fireman’s Fund was not required by Insurance law §3420(d) to give timely written notice of its first asserted ground for disclaiming coverage (citing, Zappone v. Home Ins. Co., 55 NY2d 131, 447 NYS2d 911; Matter of Aetna Cas. & Sur. Co. v. Facciponti, 133 AD2d 60, 519 NYS2d 3). The court thereupon remitted the matter for an evidentiary hearing to determine if in fact the injured party had been a resident of the household of the policyholder on the date of the accident as a condition precedent to arbitration.

In the instant case, there is no issue to be decided by evidentiary hearing since, assuming arguendo, that the respondent had effectively renewed the insurance policy herein, the plain fact is that he could not by any stretch of the imagination, much less contractual definition, logic, or common sense have been a resident of the decedent’s household since that is legally and factually impossible.

The issue of a stay of arbitration has been rendered moot since it was held and a decision rendered. However, an arbitrator’s award may be vacated on the grounds specified in CPLR 7511(b); to wit, (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. In the matter sub judice, this court finds that the arbitrator did exceed his power in having made an award in an instance where no coverage existed. Put another way, the arbitrator in order to have arrived at his decision was [*5]necessarily required to make a finding that the respondent was a “covered person;” i.e., a member of the insured’s household which in this instance would have called for him to “absurdly” find that the respondent was resident of a Ghost’s household. Consequently, this court hereby vacates the arbitrator’s October 20, 2008 ruling, above referenced, on the basis of irrationality and grants summary judgment to the petitioner on the issue of non-coverage inasmuch as it has been irrefutably established that the respondent was not a covered person. The petitioner and respondent’s respective motions to confirm said award and to amend are accordingly denied as moot. This constitutes the decision and order of this Court.

_________________________________

JSC

[*1]

Civil Court of the City of New York, Kings County, October 31, 2008

APPEARANCES OF COUNSEL

McDonnell & Associates for defendant. Gary Tsirelman, Brooklyn, for plaintiff.

{**22 Misc 3d at 979} OPINION OF THE COURT

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5102 (a) (1) of the Insurance Law and New York State Insurance Department Regulations (11 NYCRR) § 65-1.1 et seq. for medical services rendered.

Defendant moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint on the grounds that the plaintiff’s assignor failed to appear for scheduled independent medical examinations (IMEs), or in the alternative, partial summary judgment on the grounds that the denials are timely. Plaintiff opposes the motion on the grounds that the defendant has failed to substantiate any defenses or establish that it properly denied plaintiff’s claims.

After careful review of the moving papers, supporting documents and opposition thereto, the court finds as follows:

Defendant argues that the assignor, Jose Lora, failed to appear for scheduled independent [*2]medical examinations, which is a condition precedent to coverage under the insurance policy and no-fault regulations. In support of its argument, defendant annexes as exhibit “I” to its moving papers a copy of the insurance policy. The policy states in part: “3. Medical Reports. The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require.” (Emphasis added.)

Plaintiff argues that the policy requires the assignor, Jose Lora, to appear before a physician, which pursuant to Education Law, article 131, § 6522 is defined as “[o]nly a person licensed or otherwise authorized under the article shall practice medicine.” Therefore, the defendant’s insurance policy, which plaintiff reads to be clear and unambiguous, requires that the assignor submit to an examination by a physician only, and not any other health care provider. Plaintiff contends that as a result of the IME being scheduled before a psychologist, as opposed{**22 Misc 3d at 980} to a physician, the assignor was not required to attend, and no condition precedent was violated. Plaintiff further argues that any ambiguity with the use of the term “physician” must be construed against the insurer, the drafter of the policy.

The argument raised by plaintiff appears to be one of first impression. This court has researched the issue, having read and written many no-fault decisions, and did not find a case addressing the issue of whether a policy which states “physician” means that any other health care provider is excluded, and only a physician can conduct the independent medical examination of an eligible injured person (EIP).

This court answers in the negative.

In the case before this court, the insurance company sent verification requesting that the injured party appear before an independent psychologist. The court finds that although the policy states physician, the term itself is not ambiguous where it would or should allow the EIP to circumvent the requirement of an independent examination, to determine whether the services rendered were medically necessary. The assignor was seen by a psychologist and therefore, there is no reason why a verification which requests that he appear before an independent psychologist, should not be held as a valid request when the policy states “physician.”

The general provisions of Workers’ Compensation Rules and Regulations (12 NYCRR) § 300.2 (b) (5), which address independent medical examination, examiners, and entities, sets forth the following: “Section 300.2 . . . (5) “Independent medical examiner means a physician, surgeon, podiatrist, chiropractor or psychologist who is authorized to conduct independent medical examinations as defined in paragraph (4) of this subdivision.”

The fee schedules are determined by the Workers’ Compensation Law, and the services rendered by a provider are determined under the New York no-fault fee schedule. The workers’ compensation fee schedules were adopted by the Superintendent of Insurance for use by those [*3]making and processing claims for no-fault benefits.

If there is an issue as to the fees charged by the provider, which in this case is a psychologist, a hearing would be necessary to determine how much should have been billed. The court would look to the workers’ compensation fee schedule, and the fees applicable to a psychologist, not a physician.{**22 Misc 3d at 981} Therefore, this court finds that the EIP, Jose Lora, was required to appear for the scheduled IME.

In addition, this court finds plaintiff’s argument that Dr. Yakov Burstein is not qualified to state whether EIP, Jose Lora, appeared for an IME without merit. The suggestion that a doctor is unaware of or unqualified to assert which patient or patients are scheduled to appear at a scheduled date and or time in his office, because he is without “personal knowledge,” is presumptuous.

Next, this court will address the issue of the timeliness of the verification.

The claim for no-fault benefits begins when an injured party provides notice to the insurer within 30 days after the date of the accident. (See 11 NYCRR 65-2.4 [b].) The injured party is required to submit an application for no-fault benefits, and the written proof of claim is submitted within 45 days after the date services are rendered.

Within 10 business days after receipt of the completed no-fault application, the insurer must forward verification forms for health care or hospital treatment to the injured party or that party’s assignee. After receipt of the completed verification, the insurer may seek additional verification or further proof of claim from the injured party or that party’s assignee within 15 business days thereof. (See 11 NYCRR 65-3.5 [b].) For example, the insurer may seek an independent medical examination of the injured party which must be held within 30 calendar days from receipt of the initial verification form.

In the case at bar, the defendant states that it received the claim for no-fault benefits in the amount of $1,061.63 on December 29, 2005, and an additional claim for $120 on January 9, 2006. On February 17, 2006 the defendant sent a notice to the injured party scheduling an independent medical examination for March 1, 2006. A second notice rescheduling the IME was sent on March 29, 2006 which scheduled the IME for April 10, 2006.

Plaintiff argues that the defendant’s request for verification was untimely, and therefore the statutory prescribed 30-day period within which to issue a denial of the submitted claims was not tolled, and thus the defense of failure to attend an IME has been waived. In response to plaintiff’s argument that the insurer was required to request a verification within 15 days, the defendant argues that the amendment to the statute states as follows:{**22 Misc 3d at 982} “If the additional verification [*4]required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d].)

The time in which an insurer has to pay or deny a claim is extended only upon a proper request for verification pursuant to 11 NYCRR 65-3.5 (a). Since the defendant did not serve its verification request within 10 business days after receipt of the plaintiff’s completed application for no-fault benefits, the 30-day payment or denial period was not tolled. The initial verification request comes before the additional verification request for an independent medical examination. Section 65-3.5 (d) clearly states an IME is a request for “additional verification.” The insurer’s requests for independent medical examinations in connection with a health care provider’s claim for first-party no-fault benefits, made as an initial verification request, rather than an additional verification request, did not extend the time in which to issue a denial of the claims. Consequently, the defendant is precluded from raising the defense of lack of medical necessity, and/or failure to attend a scheduled IME.

Accordingly, defendant’s motion for summary judgment is denied, and the court finds that summary judgment is warranted in favor of plaintiff in the amount of $1,181.63 (the amount of the two claims), with statutory interest, costs and attorney’s fees.

[*1]

Civil Court of the City of New York, Kings County, November 5, 2008

APPEARANCES OF COUNSEL

Bruno Gerbino & Soriano, LLP, Melville, for defendant. Gary Tsirelman P.C., Brooklyn, for plaintiff.

{**22 Misc 3d at 724} OPINION OF THE COURT

George J. Silver, J.

In this action to recover first-party no-fault benefits, interest and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations, defendant Utica Mutual Insurance Company moves, pursuant to CPLR 3212, for an order granting it summary judgment dismissing plaintiff Allstate Social Work and Psychological Services, PLLC’s complaint on the ground that plaintiff’s assignors failed to appear for properly scheduled independent medical examinations (hereinafter IMEs) and examinations under oath (hereinafter EUOs) and thus failed to comply with conditions precedent of the insurance policy.

Chad LaPlate, defendant’s no-fault specialist, avers that defendant’s Special Investigative Unit (hereinafter SIU) investigated the motor vehicle accident that allegedly occurred on May 23, 2003 and which gave rise to the instant claims. As a result of that investigation, defendant’s SIU determined that the alleged loss was the result of an intentional act and that material misrepresentations had been made in the presentation of the claims. Defendant thereafter assigned the claims to Hudson Valley Medical Consultants (hereinafter HVMC) for the scheduling of IMEs of plaintiff’s assignors. Jennifer Harvey, an employee of HVMC, avers that HVMC is an entity that is involved in the scheduling of IMEs on behalf of insurance companies. According to Ms. Harvey, HVMC acts as an intermediary between the insurance company and the examining physician, dentist or psychologist by scheduling IME appointments and then securing the IME report from the examining doctor. Ms. Harvey avers that the psychological IMEs of the assignors were scheduled with Moses Weksler, Ph.D., for August 27, 2003. The letters scheduling the IMEs were prepared and signed by Ms. Harvey and mailed on August 15, 2003. Ms. Harvey states that it is HVMC’s procedure to have an employee prepare and print the IME scheduling letter and the address label for each scheduled IME. The employee ensures that the address label is correct, places the scheduling letter in the envelope, affixes the address label to the envelope and applies the proper postage. The envelopes containing the scheduling letters are placed in an official postal repository on a daily basis. Helen Sickler, the office manager for Moses Weksler, Ph.D., states in her affidavit that neither assignor appeared at Dr. Weksler’s Brooklyn office on August 27, 2003 and that the assignors’ nonappearances were reported to HVMC. On August 28, 2007, Ms. Harvey{**22 Misc 3d at 725} scheduled a second IME for both assignors to be held on September 11, 2003, again at Dr. Weksler’s Brooklyn office. According to Ms. Sickler, both assignors again failed to appear at Dr. Weksler’s office. On October 9, 2003 defendant issued two denials, one for each assignor, denying plaintiff’s claims due to the failure of the assignors to appear for the two scheduled psychological IMEs.

Defendant thereafter retained the law firm of Bruno, Gerbino & Soriano, LLP to schedule and conduct EUOs of defendant’s insured, the driver of the motor vehicle and the assignors. According to defendant’s attorney, EUOs were duly scheduled for October 7, 2003, October 10, 2003, October 28, 2003 and December 23, 2003. The assignors failed to attend the EUOs and on January 29, 2004 defendant issued a second set of denials based upon the assignors’ nonappearances.

In opposition, plaintiff argues that defendant has failed to establish that the assignors violated the policy conditions by failing to appear for the psychological IMEs because, under the express unambiguous terms of the insurance contract, the assignors were only obligated to submit to a medical examination by a physician. Plaintiff contends that licensed psychologists like Dr. Weksler are not physicians as the term is defined by the Education Law, therefore the assignors’ failure to appear for the scheduled IMEs was not a violation of the insurance policy and defendant’s denial of plaintiff’s claims was improper. Plaintiff raises no issue as to the sufficiency of defendant’s proof that the IME request letters were mailed by HVMC in accordance with a standard office practice and procedure and in accordance with the time periods delineated in the no-fault regulations. Nor does plaintiff challenge the sufficiency of defendant’s proof of the assignors’ nonappearances at the IMEs.

Plaintiff further contends that the EUO scheduling letters dated September 30, 2003, October 1, 2003 and October 13, 2003 are defective on their face because they failed to inform the assignors that they would be reimbursed for any loss of earnings or reasonable transportation expenses incurred in complying with the requests. Plaintiff also argues that the December 10, 2003 EUO scheduling letter is defective because the defendant improperly scheduled the EUOs to be held in Melville, New York, which plaintiff argues was not reasonably convenient to the assignors who reside in Brooklyn. In the alternative, plaintiff argues that if the language of the December 10, 2003 EUO scheduling letter is sufficient, the letter should{**22 Misc 3d at 726} be treated as a first request for additional verification. Since defendant failed to issue a follow-up request to the December 10, 2003 scheduling letter, plaintiff contends, defendant failed to comply with the follow-up verification requirements outlined in the regulations. Finally, plaintiff informs the court that it did not cross-move for summary judgment “due to insufficient time to file the motion”^[FN1] but nevertheless requests that the court search the record and grant summary judgment in its favor.

Defendant argues in reply that this court previously denied plaintiff’s motion for summary judgment. Defendant also concedes that Dr. Weksler is not a physician as defined by the Education Law but argues that the endorsement’s definition of “medical expense” includes all professional health services, not only medical services provided by physicians. Since the legislature included medical expenses for all professional health services as part of covered basic economic loss, defendant reasons, it also intended to permit any health care provider to perform IMEs.

Analysis

“Pursuant to Insurance Law § 5103 (d), the Legislature empowered the Superintendent of Insurance to promulgate regulations establishing minimum benefit standards for policies of insurance providing coverage for the payment of first-party benefits and to set standards for the payment of first-party benefits by self-insurers. Pursuant to this authority, the Superintendent promulgated Insurance Department Regulations (11 NYCRR) § 65-1.1, which sets forth the basic form of the ‘Mandatory Personal Injury Protection Endorsement’ which must be included in every owner’s policy of liability insurance issued on a motor vehicle in this state” (Alleviation Supplies Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 790 [Civ Ct, Richmond County 2006]).

The mandatory personal injury protection endorsement (hereinafter endorsement) provides, in pertinent part, that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1 [d] [Conditions] [Proof of Claim; Medical, Work Loss, and{**22 Misc 3d at 727} Other Necessary Expenses]).^[FN2] The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). The term physician is not defined in the endorsement but the Education Law provides that “[o]nly a person licensed or otherwise authorized under this article shall practice medicine or use the title ‘physician’ ” (Education Law § 6522). Defendant concedes in its reply that a licensed psychologist such as Dr. Weksler is not a physician. The question then is may any health provider perform an IME of an eligible injured person or, as the endorsement appears to require, only a physician?

Though there appears to be no case law addressing the point, in an opinion letter dated March 12, 2004, the State Insurance Department answered the following question:

“When a No-Fault eligible person is being treated by a chiropractor and the person’s insurer has requested a medical examination (‘IME’) of that person in order to evaluate the medical necessity of the chiropractic services performed, must the medical examination be performed by a chiropractor, or may it be performed by a medical doctor?” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10.)

In holding that an “insurer’s medical examination of an eligible injured person to evaluate the medical necessity of health services provided by a chiropractor may be performed by a medical doctor, and need not be performed by a licensed chiropractor” (id.) the Insurance Department stated “[t]here is no requirement in the regulation that a claim denial must be based upon a medical examination conducted by a health provider of the same speciality area as the treating health provider” (id.). Implicit in the Insurance Department’s interpretation, which is entitled to great deference unless it is “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]), is that an independent medical examination of an eligible injured person may be performed either by a physician, as the term is defined in the Education Law and used in the endorsement, or by any other{**22 Misc 3d at 728} licensed health provider selected by or acceptable to the insurer. It is for the court or an arbitrator to “consider the qualifications of the health provider performing the IME in determining the validity of a claim denial” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health providers who could perform IMEs, thereby delaying the processing of no-fault claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The affidavits submitted by defendant are sufficient to establish that defendant’s initial IME requests, its follow-up IME requests and its denial of claim were mailed pursuant to a standard office practice and procedure, and that the assignors failed to appear for the IMEs (Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]; Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51954[U] [App Term, 2d & 11th Jud Dists 2008]). The court, therefore, need not address plaintiff’s arguments concerning the sufficiency of defendant’s EUO requests.

Accordingly, it is hereby ordered that defendant’s motion for summary judgment dismissing plaintiff’s complaint is granted.

Footnotes

Footnote 1: See attorney’s affirmation in opposition.

Footnote 2: Since the endorsement is promulgated by the Superintendent of Insurance, and is not drafted by the insurer, plaintiff’s argument that any ambiguity in the endorsement must be construed against the insurer is incorrect.

Civil Court of the City of New York, Kings County

105504/2004

Jaffe & Koumourdas

40 Wall Street -12th Floor

New York, NY 10005

Attorneys for Defendant

Moshe D. Fuld, P.C.

38 west 32nd Street -7th Floor

New York, NY 10001

Attorneys for Plaintiff

George J. Silver, J.

In this action to recover first-party no-fault benefits, interest and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations, defendant Country-Wide Insurance Company (hereinafter defendant) moves pursuant to CPLR § 5015 [a] [1] [2] and [3] for an order vacating the judgment entered against it.

Procedural Background

This action was commenced by plaintiff Deajess Medical Imaging PC (hereinafter plaintiff) by service of a summons and complaint upon defendant on or about October 21, 2004. Defendant served its answer on November 16, 2004. On November 4, 2005 summary judgment was granted in plaintiff’s favor as to all of plaintiff’s claims and judgment was entered against defendant in the amount of $18,694.39 plus statutory interest and attorney’s fees. In granting plaintiff’s motion for summary judgment, the motion court held that plaintiff had established its prima facie entitlement to no-fault benefits and that defendant failed to submit “admissible proof of any issue of fact.” The motion court rejected defendant’s argument that plaintiff’s motion was premature because discovery was still outstanding and held that defendant failed to annex exhibits in proper form to establish that discovery demands were served and not complied with. Defendant moved to reargue plaintiff’s summary judgment motion and on July 10, 2006, the return date of defendant’s motion, the parties entered into a written stipulation of settlement. The stipulation resolved defendant’s motion to reargue as follows: “[p]laintiff agrees to vacate the judgment for assignor Trinece Summer, defendant agrees to pay the remaining claims as per the Court’s Order of November 4, 2005 within 30 days inclusive of interest up until the day of payment.” The stipulation, which was a clear and unambiguous statement of the parties’ intent, was properly signed by the attorneys of record who were acting in an adversarial relationship. [*2]The stipulation was not so-ordered by the Court. Defendant now moves to have the judgment entered against it pursuant to the November 4, 2005 order vacated on the ground that newly discovered evidence exists which “if introduced at trial would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404” (CPLR § 5015 [a] [2]). The newly discovered evidence cited by defendant includes a federal case involving Robert Scott Schepp, M.D., New York State appellate case law involving the plaintiff, a news article from Law.com, as well as the Andrew Carothers, M.D., P.C. trial in the New York City Civil Court, Richmond County, all of which defendant argues establish that plaintiff is fraudulently incorporated. Defendant also agues that the judgment was the product of “fraud, misrepresentation, or other conduct of an adverse party” (CPLR § 5015 [a] [3]) and that there was no meeting of the minds when the parties entered into the written stipulation of settlement. Finally, defendant contends that this case is subject to a stay issued by the Supreme Court, Nassau County in a separate action in which plaintiff and defendant are both parties (hereinafter the Nassau County action).

In opposition plaintiff contends that stipulations of settlement are favored by the courts and should be vacated only upon a showing of that the settlement was the product of fraud, overreaching, mistake or duress and argues that defendant has failed to make such a showing. Plaintiff also contends that this action has not been stayed by Nassau County action.

Discussion

It is well settled that stipulations of settlement are judicially favored and should not be lightly set aside (Cooper v Hempstead Gen. Hosp., 2 AD3d 566 [2d Dept]). “This is all the more so in the case of open court’ stipulations within CPLR § 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v State of New York, 64 NY2d 224, 230; 474 NE2d 1178; 485 NYS2d 510 [1984] [citations omitted]). Stipulations of settlement are independent contracts that are subject to the principles of contract law (Hannigan v Hannigan, 2008 NY Slip Op 3589 [2d Dept]) and “[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock, 64 NY2d 224, 230). A “party seeking reformation of a contract by reason of a mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party’s fraudulent misrepresentation” (Moshe v Town of Ramapo, 2008 NY Slip Op 7238 [2d Dept] quoting Yu Han Young v Chiu, 49 AD3d 535, 536, 853 NYS2d 575 [2d Dept 2008]). “[E]ven a stipulation which was improvident will not be set aside unless it is manifestly unfair or unconscionable” (Cavalli v Cavalli, 226 AD2d 666, 667, 641 NYS2d 724 [2d Dept 1996]; see Wilutis v Wilutis, 184 AD2d 639, 640, 587 NYS2d 171 [2d Dept 1992]).

The only evidence offered by defendant in support of its claim that the settlement was procured through fraud or collusion are the conclusory allegations contained in the affirmations of defendant’s attorney. Bare, unsubstantiated allegations such as “[t]he purported judgment premised upon plaintiff’s misrepresentations”^[FN1] and “[p]laintiff obtained its judgment under false [*3]pretenses”^[FN2] and “[t]he judgment was obtained under collusion by the plaintiff and its attorney since plaintiff’s attorney was well aware of several litigations pending against their client based on their client’s corporate structure”^[FN3] are insufficient to vacate the stipulation as a product of collusion or fraud. Such speculation also fails to make the requisite showing to reform the stipulation on the ground that it was executed under a mutual or unilateral mistake (see M.S.B Dev. Co., Inc. v Lopes, 38 AD3d 723 [2d Dept 2007] [A party seeking reformation must show clearly that there has been a mistake] [emphasis added]). Moreover, defendant, a sophisticated insurer well-versed in no-fault litigation and represented by able and competent counsel at the time the stipulation was entered into, does not claim that the settlement was a product of duress or that its counsel lacked the authority to enter into the settlement.

Defendant’s claim that the stipulation of settlement should be vacated based upon newly discovered evidence of plaintiff’s allegedly fraudulent incorporation is also without merit.

Plaintiff and defendant entered into a second stipulation, so-ordered on March 26, 2007, in the Nassau County action in which defendant agreed that plaintiff’s right “to enforce voluntary settlements that have been entered into with any of the Insurers,” including defendant, would not be impaired. As a party to the Nassau County action defendant was certainly aware on March 26, 2007 that the plaintiff professional corporation may be fraudulently incorporated. Despite that awareness, defendant nevertheless agreed that plaintiff could freely enforce any and all voluntary settlements which plaintiff had previously entered into. This concession by defendant to plaintiff belies defendant’s argument that had it been aware of plaintiff’s allegedly fraudulent incorporation on July 10, 2006 it would not have entered into the stipulation at issue here. “Courts will not set aside a stipulation . . . simply because, in hindsight, a party decides that the agreement was improvident” (Town of Clarkstown v. M.R.O. Pump & Tank, Inc., 287 AD2d 497, 498, 731 NYS2d 231 [2d Dept 2001]). Therefore, because defendant has failed to meet any of the criteria necessary for the court to vacate the parties’ voluntary stipulation of settlement, defendant’s Order to Show Cause is denied in its entirety.

This constitutes the decision and order of the Court.

Dated: October 7, 2008

George J. Silver, J.C.C.

Jaffe & Koumourdas

40 Wall Street -12th Floor

New York, NY 10005

Attorneys for Defendant

Moshe D. Fuld, P.C.

38 west 32nd Street -7th Floor

New York, NY 10001

Attorneys for Plaintiff

Footnotes

Footnote 1: Defendant’sAffirmation in Support.

Footnote 2: Defendant’sAffirmation in Reply.

Footnote 3: Id.

Civil Court of the City of New York, Kings County

165871/2006

Counsel for Plaintiff:

Gary Tsirelman PC

55 Washington Street, Suite 606

Brooklyn, NY 11201

Tel.: (718) 438-1200

Counsel for Defendant:

Votto & Cassata, LLP

60 Bay Street, 3rd Floor

Staten Island, NY 10301

Tel.: (718) 720-2877

Peter P. Sweeney, J.

In this action pursuant to Insurance Law § 5101 et seq to recover assigned first-party no-fault benefits claimed to be due and owing under a policy of insurance issued by the defendant, defendant moves for summary judgment dismissing the action on the ground that plaintiff did not commence the action within the six-year statute of limitations contained in CPLR § 213[2]. Plaintiff cross-moves for summary judgment.

In support of its motion for summary judgment, defendant submitted admissible proof establishing that it received the underlying claim for first-party no-fault benefits on November 15, 2000, that it had issued a denial of the claim on November 29, 2000 on the ground that plaintiff’s assignor failed to attend an examination under oath (“EUO”) and that it had mailed a [*2]copy of the denial of claim to the plaintiff on the same day it was issued. Plaintiff commenced the action on December 1, 2006. Defendant argues that pursuant to CPLR § 213 [2], plaintiff was required to commence the action within six years from November 29, 2000 and that the commencement of the action on December 1, 2006 was untimely.

It is now fairly well settled that an action to recover assigned first-party no-fault benefits under a policy of insurance is fundamentally a breach of contract action subject to the six-year statute of limitations contained in CPLR §213[2] (see Mandarino v. Travelers Property Cas. Ins. Co., 37 AD3d 775, 831 NYS2d 452 [2nd Dep’t 2007]; Benson v. Boston Old Colony Ins. Co., 134 AD2d 214, 215, 521 NYS2d 14 [1st Dep’t1987], lv. denied 71 NY2d 801, 527 NYS2d 767, 522 NE2d 1065 [1988]; Travelers Indem. Co. of Connecticut v. Glenwood Medical, P.C., 48 AD3d 319, 319-320, 853 NYS2d 26, 26 [1st Dep’t 2008] ). The statute of limitations in a breach of contract action begins to run at the time the contract is breached, which in this case was when benefits become overdue (see Benson, 134 AD2d at 215; New Era Acupuncture, P.C. v. MVAIC, 18 Misc 3d 139(A), 2008 NY Slip Op. 50353(U) [App Term 2nd & 11 Jud Dists]. Benefits became overdue when the defendant failed to pay the claim within 30 days of November 15, 2000, when it received proof of the claim (see Insurance Law § 5106[a]; NYCRR § 65-3.8; Benson, 134 AD2d at 215; Micha v. Merchants Mutual Insurance Company, 94 AD2d 835, 463 NYS2d 110 [3rd Dep’t 1983] ). The commencement of the action on December 1, 2000 was therefore timely.

The fact that the defendant may have repudiated the contract on November 29, 2000 when it issued a denial of the claim and mailed a copy of the denial to the defendant does alter this result. Under the doctrine of anticipatory breach, where one party clearly and unequivocally repudiates his contractual obligations under a contract prior to the time performance is required, the non-repudiating party may deem the contract breached and immediately sue for damages (see American List Corp. v. U.S. News & World Report, 75 NY2d 38, 550 NYS2d 590, 549 NE2d 1161 [1989]; De Lorenzo v. Bac Agency Inc., 256 AD2d 906, 908, 681 NYS2d 846, 848 [3rd Dep’t 1998]; Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463, 393 NYS2d 925, 362 NE2d 558 [1977]).

While the plaintiff may have been entitled to bring the action under the doctrine of anticipatory breach when the defendant denied the claim, even though the 30 day period in which defendant had to pay the claim had yet to expire, plaintiff was well within its rights to elect to keep the contract in force and await the designated time for performance before bringing suit (Ga Nun v. Palmer, 202 NY 483, 493, 96 N.E. 99 [1911]; see also, Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 AD2d 262, 266, 629 NYS2d 382, 384 [1st Dep’t 1995] ). As the Court of Appeals wrote in Ga Nun: “The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait until the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer” (Ga Nun, 202 [*3]NY at 490-491, 96 N.E. at 101 – 102, citing Hochster v. De la Tour, 2 Ellis & Blackburn, 678). For the above reasons, defendant’s motion for summary judgment is DENIED.

Turning to plaintiff’s cross-motion for summary judgment, in Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co.,14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006] ) the Appellate Term held that absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). The Dan Medical Court further held that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v. General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006] ).

Here, plaintiff’s submissions are devoid of any admissible proof, such as an affidavit from someone familiar with plaintiff’s business practices, establishing the admissibility of the claim form as a business record. Accordingly, plaintiff did not establish its prima facie case of entitlement to summary judgment notwithstanding defendant’s admission that it received the claim on November 15, 2000. Plaintiff’s failure to make out a prima facie case of entitlement to summary judgment mandates the denial of the motion regardless of the sufficiency of opposing papers (Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985] ).

For the above reasons, it is hereby

ORDERED that defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment are DENIED.

This constitutes the decision and order of the court.

Date: October 7, 2008________________________________

Peter P. Sweeney

Civil Court Judge

[*1]

Civil Court of the City of New York, Kings County, September 25, 2008

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, Great Neck (Jennifer Raheb of counsel), for plaintiff. Law Office of Teresa Spina, Woodbury (Victoria Thomas of counsel), for defendant.

{**21 Misc 3d at 799} OPINION OF THE COURT

Lila Gold, J.

{**21 Misc 3d at 800}In this action to recover first-party no-fault benefits in the amount of $878.67, for medical services rendered to its assignor, plaintiff and defendant stipulated to the proper and timely claim of the provider, thereby establishing a prima facie entitlement to payment. (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003].) The plaintiff and defendant further stipulated that the denial of benefits was timely and that the only issue for trial was medical necessity based on a peer review. The stipulation additionally provided that the peer review and underlying medical records were to be admitted into evidence. Thus, the burden shifted to defendant to prove lack of medical necessity.

Defendant called Dr. Drew Stein, the author of the peer review dated July 6, 2007, who testified that the MRI of the right shoulder was not medically necessary. On cross-examination, Dr. Stein was asked to describe the purpose of a peer review. Dr. Stein’s answer was “to confirm or deny a prognosis.” He then was asked whether an MRI in this particular case was necessary in order to rule out a muscular-skeletal injury vis-à-vis a nerve root injury, to which he answered in the affirmative. In fact, the MRI did show possible nerve impingement.

Dr. Stein, who has been practicing medicine for only four years, was never qualified as an expert by defendant. Nor was his expertise established.

To rebut defendant’s witness, plaintiff called Dr. David Finkelstein who was deemed an expert by the court, without objection, in the field of neurology. Dr. Finkelstein testified that, based on his review of the medical records and the patient’s complaint of pain radiating from the neck to the right shoulder area, an MRI would be helpful to determine which body part should be treated, i.e., the neck or shoulder. He also indicated, from the muscular tests which were performed, there were signs of neurological involvement in that area which an MRI would clarify.

Although it is not the court’s opinion that the services were medically necessary per se, once the plaintiff had established its prima facie case, the burden shifted to the defendant to present sufficient evidence to establish a defense based on the lack of medical necessity. The court finds that Dr. Stein’s testimony was insufficient to establish a defense based on the lack of medical necessity, and, therefore, the burden never shifted back to plaintiff. (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d &{**21 Misc 3d at 801} 11th Jud Dists 2006].) Thus, after hearing the evidence, and despite Dr. Finkelstein’s testimony, the court does not need to reach the issue of the sufficiency of plaintiff’s rebuttal. Rather, the court, as trier of the facts, is free to assess and reject the testimony as it sees fit and, therefore, finds that the evidence presented by defendant was insufficient to sustain its burden as to the issue of lack of medical necessity.

Wherefore, judgment is to be entered in favor of plaintiff as against defendant in the sum of $878.67, together with statutory interest and attorneys fees, plus costs and disbursements.

Civil Court of the City of New York, Kings County

143763/06

Sylvia G. Ash, J.

Plaintiff a health care service provider seeks to recover no-fault benefits for supplies furnished to its assignor. Defendant contends that Plaintiff’s claim is premature because Plaintiff failed to comply with an additional verification request. Plaintiff argues that it responded to Defendant’s verification request. Defendant argues that the response failed to fully comply with the request.

There is no dispute that Plaintiff responded to the additional verification request. There is also no dispute that upon receipt, Defendant did not request any further response from Plaintiff. The issue before the Court is whether Defendant was obligated to notify Plaintiff that its response to their additional verification request was insufficient and/or incomplete. In All Health Medical Care, P.C. v. Government Employees Insurance, 2 Misc 3d 907, the Court reasoned that while “… the regulations are silent as to what, if anything, the insurance company must do if it receives insufficient verification, that it is clear that the insurance company must affirmatively act once it receives a response to its verification request.” (see also Westchester County Medical Center v. NY Central Mutual Fire Ins Co., 262 AD2d 553).

In the case at Bar, once Plaintiff submitted its response to Defendant’s additional verification request, it was then incumbent on Defendant to inform Plaintiff that said response was insufficient and/or incomplete. Any confusion or disagreement on the part of the Defendant as to what was being sought should have been addressed by further communication, not inaction (see Westchester County Medical Center v. NY Central Mutual Fire Ins Co., supra). Neither party may ignore communications from the other without risking its chance to prevail in the matter (see All Health Medical Care, P.C. v. Government Employees Insurance Co., supra).

Accordingly, Plaintiff motion is hereby granted, judgment in favor of plaintiff for $2,118.33 plus interest , attorney’s fee, costs and disbursements. [*2]

This constitute the Decision and Order of the Court.

DATED: September 15, 2008______________________________

Sylvia G. Ash, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, May 27, 2008

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh, for plaintiff. Freiberg & Peck, P.C., New York City, for defendant.

{**20 Misc 3d at 554} OPINION OF THE COURT

Peter P. Sweeney, J.

{**20 Misc 3d at 555}In this action to recover assigned first-party no-fault benefits, on January 31, 2008 the parties agreed to a trial on stipulated facts and to the admission into evidence of various exhibits. The question presented is whether the failure of plaintiff’s assignor to appear for an examination under oath (EUO) constituted a valid basis for denial of the claim. For the reasons that follow, the court answers this question in the negative.

Factual Background

Plaintiff All-Boro Medical Supplies, Inc. submitted a claim to defendant Progressive Northeastern Insurance Company for first-party no-fault benefits in the amount of $442.50 for durable medical equipment that it had provided to its assignor, Tony Stringer. Defendant received the claim on February 14, 2005. The motor vehicle accident in which Mr. Stringer was allegedly injured occurred on January 5, 2005.

On January 28, 2005, before it received the claim, defendant had sent Mr. Stringer a letter directing him to appear for an EUO on April 21, 2005. Mr. Stringer failed to appear for the EUO on that date. On April 22, 2005 defendant sent a second letter to Mr. Stringer, rescheduling the EUO for May 3, 2005. Again, Mr. Stringer failed to appear. On May 18, 2005 defendant denied the claim on the ground that Mr. Stringer failed to appear for the EUO.

Discussion

As a condition to coverage under the revised Personal Injury Protection Endorsement, which is required to be included in automobile insurance policies issued or renewed after April 5, 2002, “the eligible injured person . . . shall . . . as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same” (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d] [Sec I, Conditions, Proof of Claim (b)]). Inasmuch as the policy period for newly issued and renewed automobile insurance policies is one year (Insurance Law § 3425 [a] [8]), it can be assumed that the automobile insurance policy applicable in this case contained the endorsement since the underlying motor vehicle accident occurred after April 2003 (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]).

Another condition to coverage under the endorsement is that an “eligible injured person shall submit to medical examination{**20 Misc 3d at 556} by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require” (11 NYCRR 65-1.1 [d] [Sec I, Conditions, Proof of Claim]). In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 721 [2d Dept 2006]), the Court interpreted this language to mean that an insurer may require an eligible injured person to appear for a medical examination either “before the claim form is submitted or after the claim form is submitted.” The court stated that such interpretation furthers “the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims” (35 AD3d at 722 [citations omitted]). There is no reason to apply a different rule to EUOs.

The court thus finds that defendant acted within its rights under the endorsement in scheduling an EUO of Mr. Stringer before it had received the claim. Indeed, had the defendant not received the claim form on February 14, 2005, Mr. Stringer’s failure to appear for the EUO would have constituted a valid ground for denying the claim “retroactively to the date of loss” (35 AD3d at 722). While this court agrees that when an EUO is requested as additional verification of a claim, the insurer is required to schedule the EUO within the same time period as medical examinations, to wit, within 30 calendar days from the date of receipt of the prescribed verification form (see All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 17 Misc 3d 950, 952 [Civ Ct, Kings County 2007, Edwards, J.]; see also S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]), there is no such requirement for the scheduling of preclaim EUOs.

While defendant acted within its rights under the endorsement in scheduling Mr. Stringer for a preclaim EUO for April 21, 2005, once defendant received the claim from the plaintiff, the defendant was required to adhere to the statutory and regulatory scheme for the processing of no-fault claims. Thus, defendant was required to pay or deny the claim within 30 calendar days of its receipt (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]) or request additional verification of the claim (11 NYCRR 65-3.5). Generally, a request for additional verification of a claim must be made within 15 business days of receipt of one of the prescribed verification forms (see 11 NYCRR 65-3.5 [b]). Where an insurer makes a{**20 Misc 3d at 557} timely and proper request for additional verification, the 30-day period in which it has to either pay or deny a claim does not begin to run until all demanded verification has been provided (11 NYCRR 65-3.8 [a] [1]).

Here, while defendant had already scheduled Mr. Stringer’s EUO for April 21, 2005 before it had received the claim, if defendant insisted upon conducting the EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from February 14, 2005, the date it received the claim (see All-Boro Med. Supplies, Inc., supra; S & M Supply, supra). As a matter of law, by failing to reschedule the EUO, defendant could not assert Mr. Stringer’s failure to appear for the EUO as its basis to deny the claim (see King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450[U] [App Term, 2d & 11th Jud Dists 2005]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50140[U] [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff established its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2d Dept 2004]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2d Dept 2007]) and defendant has failed to establish a viable defense to the action, it is hereby ordered that judgment be entered in favor of the plaintiff in the amount of $442.50, together with interest and attorneys fees pursuant to Insurance Law § 5106 and regulations promulgated thereunder, plus costs and disbursements.

[*1]

Civil Court of the City of New York, Kings County, May 2, 2008

APPEARANCES OF COUNSEL

Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for defendant. Law Offices of Bruce Newborough, P.C., Brooklyn (Damin J. Toell of counsel), for plaintiff.

{**20 Misc 3d at 292} OPINION OF THE COURT

Peter P. Sweeney, J.

Plaintiff Second Medical, P.C., as assignee of Marvin Calender, commenced this action to recover assigned first-party no-fault benefits. The trial of the action took place on December 20, 2007. The only witness to testify was Inga Lev, the president of Maugust, Inc., the company that does plaintiff’s medical billing.

The issue presented is whether Ms. Lev’s testimony was sufficient to establish the admissibility of the underlying no-fault claim form, which incorporated information contained in medical records which were neither offered nor admitted in evidence and which were never shown to be admissible under any hearsay exception. The court answers this question in the negative.

Factual Background

Ms. Lev testified that once a week, someone from plaintiff’s office would deliver to her a number of patient files. Each file contained one or more medical reports which described the [*2]nature of the services that plaintiff purportedly provided to a particular patient. Each file also contained an executed assignment of benefits form and information identifying the insurer who was responsible for payment of first-party no-fault benefits.

Either Ms. Lev or one of her coworkers would prepare no-fault claim forms based upon the information contained on the documents contained in patient files and mail the claim forms to the insurers responsible for payment of the first-party no-fault benefits along with an executed assignment. Ms. Lev gave no testimony concerning the practices and procedures that plaintiff utilized in creating the documents contained in the patient files.

Ms. Lev testified that she prepared the no-fault claim form in this action pursuant to the above procedures and mailed it to the defendant with an executed assignment on November 20, 2002. She testified that as of the date of trial, the first-party no-fault benefits due and owing were not paid. In its denial of claim form, which was received in evidence, defendant acknowledged receiving the claim form on November 25, 2002. When plaintiff’s counsel offered the claim form in evidence, defendant’s counsel objected arguing that Ms. Lev failed to lay a proper foundation for its admission as a business record pursuant to CPLR 4518 (a).

Relying primarily on Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U]{**20 Misc 3d at 293} [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s counsel argued that since Ms. Lev established plaintiff had a business duty to Maugust to deliver the patient files and that Maugust routinely relied on the medical reports and other documents contained in the files and fully incorporated them into no-fault claim forms which it created in the regular course of its business, a proper foundation for the admission of the claim form as a business record was laid.

The court reserved decision on defendant’s objection. The parties thereafter submitted memorandums of law in support of their respective positions. For the reasons stated below, the court now sustains defendant’s objection.

Legal Analysis

A plaintiff provider establishes a prima facie entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). It is now clear that this language should not be interpreted as dispensing with the requirement that the provider tender evidentiary proof of the transaction sued upon “in admissible form” (Bajaj v General Assur., 18 Misc 3d 25, 27-28 [App Term, 2d & 11th Jud Dists 2007]). Thus, to prevail in an action to recover first-party no-fault benefits, the provider must proffer evidence in admissible form establishing the facts asserted in the underlying no-fault claim form (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 47 [App Term, 2d & 11th Jud Dists 2006] [“(t)o the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do”]; see also Bajaj, supra; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]).

Here, plaintiff attempted to prove the facts asserted in the claim form by offering it as a [*3]business record pursuant to CPLR 4518 (a). CPLR 4518 (a), which sets forth the criteria for admission under what is commonly referred to as the business record exception to the hearsay rule, provides:

“Any writing or record, whether in the form of an{**20 Misc 3d at 294} entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

The three foundation requirements of CPLR 4518 (a) are

“first, the record must be made in the regular course of business—reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record—in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” (People v Cratsley, 86 NY2d 81, 89 [1995], citing People v Kennedy, 68 NY2d 569, 579-580 [1986]).

It is well settled that in order to lay these foundational requirements, the proponent of the record must call as a witness someone with knowledge of the maker’s business practices and procedures (see e.g. Blair v Martin’s, 78 AD2d 895 [2d Dept 1980]; Sabatino v Turf House, 76 AD2d 945, 946 [3d Dept 1980]; see also Hefte v Bellin, 137 AD2d 406, 408 [1st Dept 1988]). The witness need not have made the record or even be familiar with the record (Faust v New York City Tr. Auth., 4 Misc 3d 89, 91 [App Term, 2d & 11 Jud Dists 2004]). It is not even required that the witness be a current or former employee of the business that created the record (see e.g. People v Cratsley, 86 NY2d 81 [1995]; People v Meekins, 34 AD3d 843, 845 [2d Dept 2006]; People v DiSalvo, 284 AD2d 547 [2d Dept 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [2d Dept 1986]; William Conover, Inc. v Waldorf, 251 AD2d 727 [3d Dept 1998]). However, unless the witness demonstrates some familiarity with the particular record keeping procedures of the business that created the record “such that he [can] state that the record he received was made in the regular course of [that] business, that{**20 Misc 3d at 295} it was in the regular course of [that] business to make the record and that it was made contemporaneously with [the events recorded in the record]” the record is inadmissible (People v Surdis, 275 AD2d 553, 554 [3d Dept 2000]).

Here, Ms. Lev did not demonstrate any familiarity with plaintiff’s business practices and procedures. Accordingly, she did not establish that the documents contained in Mr. Calender’s patient file were business records within the meaning of CPLR 4518 (a). Further, she did not establish the admissibility of the file documents under any other hearsay exception. Since all the documents contained in Mr. Calender’s patient file constituted inadmissible hearsay, it necessarily follows that the no-fault claim form, which incorporated these records, is also hearsay. [*4]

Plaintiff’s reliance on Pine Hollow Med., P.C. is misplaced. In Pine Hollow Med., P.C., the court stated that

“it is well-settled that where an entity ‘routinely relies upon the business records of another entity in the performance of its own business’ . . . , and ‘fully incorporate[s]’ said information into records made in the regular course of its business . . . , the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy” (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U], *1-2 [2006] [citations omitted and emphasis added]).

While this is a true statement of law, it was never demonstrated in this case that the documents contained in the patient files which Ms. Lev and her coworkers routinely relied upon and fully incorporated into the no-fault claim forms qualified as business records within the meaning of CPLR 4518 (a). The root of plaintiff’s argument appears to be that the term “business records” as used in Pine Hollow Med., P.C. means any records, including records that may constitute hearsay. The premise of plaintiff’s argument is without logic or support and is belied by the cases cited in Pine Hollow Med., P.C.

In all the cases cited in Pine Hollow Med., P.C., where documents were admitted in evidence through the testimony of a witness who was neither a current nor former employee of the person or entity that created the documents, the witness had demonstrated his or her familiarity with the business practices and procedures pursuant to which the documents were created. These witnesses were therefore able to qualify the documents{**20 Misc 3d at 296} as business records. In People v Cratsley, the foundation witness testified that the IQ test report that was admitted in evidence was prepared by an independent psychologist as an initial evaluation of a client, that it was conducted in accordance with her employer’s requirements and on her employer’s behalf, that the report was prepared at the time the examination took place and that the examination was conducted to fulfil certain statutory and regulatory requirements with which she was familiar (86 NY2d at 88). In People v DiSalvo, the foundation witness testified that he was familiar with the specific business practices and procedures of the dump site facility that created the records which the court admitted in evidence (284 AD2d at 548-549). In Plymouth Rock Fuel Corp. v Leucadia, Inc., the foundation witness testified that the fuel oil delivery tickets that were admitted as evidence were prepared by contract drivers that were hired by his company who had a business duty to record certain information on the tickets, including the amount, location and date of fuel delivered (117 AD2d at 728).

Here, plaintiff laid absolutely no foundation for the admission of the documents contained in Mr. Calender’s patient file. To accept plaintiff’s interpretation of Pine Hollow Med., P.C., this court would have to conclude that these documents were admissible notwithstanding that plaintiff had never demonstrated that the informant had personal knowledge of the acts, events and occurrences that the records document and was under a business duty to report them to the entrant. This court would also have to conclude that it was not necessary for the plaintiff to demonstrate that it was within the scope of the entrant’s business duty to record the acts, transactions and occurrences and that each participant in the chain producing the records, from the initial declarant to the final entrant, was acting within the course of regular business or that the declarations contained in the records were admissible through some other hearsay exception. As stated by the Court of Appeals in Matter of Leon RR (48 NY2d 117, 122-123 [1979]): [*5]

“To constitute a business record exception to the hearsay rule, the proponent of the record must first demonstrate that it was within the scope of the entrant’s business duty to record the act, transaction or occurrence sought to be admitted. But this satisfies only half the test. In addition, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting{**20 Misc 3d at 297} within the course of regular business conduct or the declaration must meet the test of some other hearsay exception (Johnson v Lutz, 253 NY 124, 128; Toll v State of New York, 32 AD2d 47, 50). Thus, not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well (Richardson, Evidence [10th ed-Prince], § 299). The reason underlying the business records exception fails and, hence, the statement is inadmissible hearsay if any of the participants in the chain is acting outside the scope of a business duty (Johnson v Lutz, supra) . . .

“Unless some other hearsay exception is available (Toll v State of New York, supra), admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he is under a business duty to report it to the entrant (Johnson v Lutz, supra; cf. Model Code of Evidence rule 514).”

In sum, since the documents contained in Mr. Calender’s patient file constituted hearsay, the no-fault claim form which was based on the information contained in these documents is also hearsay. Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records.

Inasmuch as plaintiff did not proffer evidence in admissible form establishing the facts asserted in the claim form, plaintiff did not make out a prima facie case.

Accordingly, it is hereby ordered that judgment be entered in favor of the defendant dismissing plaintiff’s complaint.