[*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.

Civil Court of the City of New York, Kings County

4490/06

Noach Dear, J.

Plaintiff All-Boro Medical Supplies, Inc. commenced this action to recover assigned first-party no-fault benefits in the amount of $822.00 for medical supplies that it provided to its assignor, Ramel King, who was purportedly injured in an automobile accident on January 30, 2005.

On February 13, 2008, the parties agreed to a trial based on stipulated facts. While there are no questions of facts requiring resolution, the matter presents an interesting question of law; whether plaintiff’s failure to submit a prescribed NF-3 claim form in response to defendant’s requests for additional verification of the claim tolled the 30 day period in which defendant had to pay or deny the claim? For the following reasons, the court answers this question in the affirmative.

Underlying Facts:

Following the accident, plaintiff provided Mr. King with various assistive medical equipment which included a heating lamp with infrared element, a massager for reduction of muscle spasm and a TENS unit. On February 16, 2005, Mr. King assigned his rights to collect first-party no-fault benefits for the equipment to the plaintiff. On May 6, 2005, Edward Shapiro, Esq., plaintiff’s counsel, submitted a claim for the first-party no-fault benefits to defendant. After receiving the claim, defendant served upon the plaintiff a request for additional verification of the claim demanding that plaintiff submit a prescribed NF-3 claim form. When plaintiff failed to comply with the request, defendant made a follow-up request. The parties have stipulated that the initial and follow-up request were made in accordance with protocols for requesting additional verification set forth in the no-fault regulations.

While plaintiff has not yet provided defendant with a NF-3 claim form, plaintiff submitted other materials as proof of claim, including letters of medical necessity from Alex Khait, D.C. and Alexander Rozenberg, M.D., which indicate that Mr. King was diagnosed as suffering from unspecified neuralgia, radiculitis and lumbosacral and cervical injuries as a result of the accident.

COMMENTS:

It is well settled that an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (Insurance Law § 5106(a); 11 NYCRR 65-3.5; see also Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 278, 660 NYS2d 536, 683 NE2d 1 [19970 ). An insurer’s failure to pay a no-fault claim within 30-day renders no-fault benefits overdue ( see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1] ).

The 30-day period may be extended if the insurer demands additional verification of the claim ( see 11 NYCRR 65.15[d][1],[e]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 AD3d 492, 493, 819 NYS2d 268 [2nd Dep’t 2006]; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 569, 774 NYS2d 72 [2nd Dep’t 2004] ). If requested verification is not supplied to the insurer within 30 days from the insurer’s initial request, the insurer is required to issue a follow- up request in accordance with 11 NYCRR 65.15 [e][2] ( see New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584, 744 NYS2d 201 [2nd Dep’t 2002] ). Parenthetically, “[a] claim need not be paid or denied until all demanded verification is provided” ( New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72, see Insurance Law § 5106[a]; 11 NYCRR 65-3.5[c], 65-3.8[a][1]; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., supra at 584, 744 NYS2d 201; Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554, 692 NYS2d 665 [2nd Dep’t 1999] ). Further, when a medical provider fails to provide properly requested verification of a claim, the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the provider is premature (New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72).

The parties have stipulated that plaintiff submitted the claim on May 6, 2005 and that defendant’s requests for a prescribed NF-3 claim form were made in accordance with the protocols for requesting additional verification of a claim. The parties have also stipulated that to date, plaintiff has not provided a prescribed NF-3 claim form which is also know as a verification of treatment by attending physician or other provider of health service form. The required contents of this form is contained in Appendix 13 of the Ch. III, Subch. B, Pt. 65 of Insurance Department Regulations.

Plaintiff maintained at trial that defendant was required to “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (Insurance Department Regulation 11 N.Y.C.R.R. § 65-3.5[f] ). Plaintiff further maintained that the various materials it provided to the defendant in connection with the claim met this requirement. Plaintiff argued that since defendant did not pay or deny the claim within 30 days of receipt of these materials, no-fault benefits are overdue.

Defendant maintained that 11 N.Y.C.R.R. § 65-3.5[f] gave it the unconditional right to request the submission of a prescribed NF-3 claim from as additional verification of the claim and that since plaintiff has yet to provide one, the 30 day period in which it has to pay or deny the claim continues to be tolled.

The question of law presented turns on how 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted. 11 N.Y.C.R.R. § 65-3.5(f) provides:

An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits, the [*3]prescribed verification of treatment by attending physician or other provider of health service, and the prescribed hospital facility form.

“[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966, 696 NE2d 978 [1998] ). Further, “meaning and effect should be given to all language of a statute * * *. Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning” (Cohen v. Lord, Day & Lord , 75 NY2d 95, 100, 551 NYS2d 157, 550 NE2d 410 [1989] ; see also, McKinney’s Cons. Laws of NY, Book 1, Statutes § 231, at 390). “Generally, the same canons of construction are applicable to legislation and administrative regulations” (Garzilli v. Mills, 250 AD2d 131, 137, 681 NYS2d 176, 179 [3rd Dep’t 1998] ).

Applying these principles, 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted as giving insurers the right to request the submission of one of the prescribed forms referred to in the regulation as additional verification of a claim, even where materials were submitted as proof of claim that contained substantially the same information that a prescribed form requires. This interpretation gives meaning and effect to all the language in 11 N.Y.C.R.R. § 65-3.5(f). If the court were to adapt plaintiff’s urged construction, the court would in effect be rejecting as superfluous the entire second sentence of 11 N.Y.C.R.R. § 65-3.5(f) which unequivocally states that insurers may require the submission of a prescribed form. Further, it is not impracticable to give the first and second sentence of the regulation distinct and separate meanings. The first sentence can be viewed as controlling what insurers must accept as proof of claim but not as a limitation on what they may seek as additional verification of a claim. The second statement can be viewed clear direction that a request for a prescribed form is a valid request for additional verification.

This result also comports with those reported cases which have addressed an insurer’s entitlement to the submission of a prescribed no-fault forms as additional verification of a claim (see First Help Acupuncture, P.C. v. Progressive Northeastern Ins. Co.,15 Misc 3d 144(A), 2007 NY Slip Op. 51167(U) [App Term, 2d & 11th Jud Dists] (proof of insurer’s timely denial of claim on the ground that on the ground “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed” raised triable issue of fact as to plaintiff’s entitlement to summary judgment); Metroscan Medical Diagnostics, P.C. v. Progressive Casualty Insurance Co., 15 Misc 3d 126 (A), 2007 NY Slip Op. 50500 (U) [App. Term, 9th & 10th Jud Dists] (30 day period tolled where plaintiff’s failed to provide assignment of benefits in the form required by the No Fault regulations]; see also Doshi Diagnostic Imaging Services v. Progressive Insurance Co., 12 Misc 3d 144 (A), 2006 NY Slip Op. 51430 (U) [App. Term, 9th & 10thth Jud Dists] ).

Based on the preceding analysis, this Court determines that defendant has demonstrated that the 30 day period in which it had to pay or deny the claim was tolled by its request for a prescribed NF-3 form. Hence, plaintiff has failed to establish that payment of no-fault benefits is overdue.

Accordingly, it is hereby

ORDERED that judgment be entered in defendant’s favor dismissing the claim as premature (New York Hospital Medical Center of Queens v. Country-wide Insurance Co., 295 [*4]AD2d 583 [2d Dept., 2002] ).

This constitutes the Decision and Order of the Court.

Dated: April 11, 2008_____________________________

Noach Dear

Civil Court Judge

Civil Court of the City of New York, Kings County

56006/04

Plaintiff: Alan Banniettis, Esq.

2972 Avenue X

Brooklyn, NY 11235

(718) 648-8300

Defendant: Bruno Gerbino & Soriano, LLP

By: Akwei O. Acquage, Esq.

445 Broad Hollow Road

Suite 220

Melville, NY 11747

(631) 390-0010

Sylvia G. Ash, J.

Plaintiff brought this cause of action seeking recovery of first party no-fault benefits for medical services rendered to its assignors in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $4,151.98. Based on the testimony and evidence adduced at trial, the Court makes the following findings of fact and conclusions of law. [*2]

At trial, the parties stipulated to the Plaintiff’s prima facie case and the timely denial of the claim. The Defendant asserted that Plaintiff was not entitled to recover for the services rendered, specifically, the performance of EMG and NCV studies of the upper extremities.

The only issue before the Court was whether these studies were medically necessary.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (see Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 N.Y.S. 2d 857 [Civ. Ct. Kings Co. 2005]; Expo Medical Supplies , Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 N.Y.S. 2d 209 [Civ. Kings Co. 2006]; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 N.Y.S.2d 493 [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 N.Y.S. 2d 229 [Civ. Ct. Kings Co. 2005]).

To sustain its burden of proof, Defendant presented two witnesses, Dr. Jeffery Perry and Dr. Patrick Corcoran, whom the parties stipulated to be experts in the field of Physical Medicine and Rehabilitation & Pain Management.

Dr. Perry testified that in preparing his peer review report, he reviewed the treating physician’s report as well as the EMG and NCV reports. That it was his medical opinion that the EMG and NCV tests were not medically necessary because said tests are usually performed to (a) impact the care that the patient would receive (b) impact the results of the patient’s treatment ( c) when you are not sure of the course of treatment to take and (d) when there is a decline in the patient’s neurological performance. Dr. Perry stated that in this case, there was nothing in the patient’s records to indicate that the patient had a prior medical condition and that it was his opinion that the treating physician did not need to do the test or utilize the performance of the test to impact the care and treatment which the patient was already receiving. He further stated there was no indication that the patient had underwent radiological studies of any kind, which would have necessitated the performance of the test.

On cross examination, Dr. Perry acknowledged that a patient’s prior trauma and treatment is relevant for diagnosis and treatment and that the patient’s treating physician is always in the best position to prescribe care and treatment for the patient. However, where there is no mention of any prior trauma or medical condition, if a patient came to him with the same complaints as the patient herein, he would not have ordered the subject tests. Dr. Perry testified that as a treating physician, he has done EMGs on patients where payment had been denied based on the reviewing physician deeming the tests to be medically unnecessary. That in such cases, when necessary, he would provide additional information to the reviewing physician to explain his rationale for ordering the tests. Dr. Perry further stated that as a reviewing physician, if he gets a letter from the treating physician explaining the rationale for the tests, the vast majority of times, he would alter his opinion. [*3]In this case, Dr. Perry stated that the records he received and reviewed were sufficient for him to form a medical opinion of lack of medical necessity.

Dr. Patrick Corcoran testified that he also reviewed the treating physician medical records as well as the EMG and NCV reports. He stated that the records revealed that the patient was a 24 year old female, with no prior medical problems, who was involved in an automobile accident on January 21, 2001. That the patient’s symptoms were evidence of radiculopathy which is an indication that something is wrong with the root of the nerve. That the treating physician did not need the EMG and NCV studies to prevent an injury, to make a diagnosis or to formulate a treatment plan. That the records revealed that the treating physician had all the information needed to form a diagnosis and that the results of the electro-diagnostic studies were the same as the conclusion drawn from the patient’s physical examination.

On cross examination, in answering the question whether he inquired from the treating physician if the patient had a prior medical condition, Dr. Corcoran responded that there was no mention in the patient’s records of a prior medical condition and that there is a saying in medicine that “If you didn’t write it, you didn’t do it.” Dr. Corcoran concluded that based on the treating physician’s report and the physical examination, it was clear that the subject tests were not medically necessary. Dr. Corcoran further stated that he had sufficient information from the records provided to form a medical opinion of lack of medical necessity.

It is well settled that the function of the No-Fault Law is to expedite payment of claims (See 1973 NY Legis Ann, at 298). The Court of Appeals have found that “the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays.” (see Dermatossian v. New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v. New York City Tr. Auth., 151 AD2d 745 [2d Dept. 1989]; Fifth Avenue Pain Control

Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 N.Y.S. 2d 748 [2003]. Upon receipt of a claim, the insurer is required by both statute and regulation to pay or deny a claim within 30 days of receipt of the claim (see NY Ins. Law §5106(a); 11 N.Y.C.R.R. §65-3.8(a)(1)). An insurer may extend this 30-day period if, within 15 business days after receipt of the claim, the insurer sends a request for verification (see 11 N.Y.C.R.R. §65-3.5(b)). The 30-day period does not begin to run until all demanded verification is received (see N.Y.C.R.R. §65-3.8(a)(1)). Where the claim asserted is for payment for medical services, and the documents requested in the verification process are the patient’s medical records, to put the onus on a Defendant to request additional verification will unnecessarily prolong the time within which a determination can be made by the insurer as to whether a claim should be paid or denied. The Defendant insurer is not obligated to seek further verification where its medical expert testified that there was sufficient information to form an opinion (see Amaze Med. Supply Inc. V. Travelers Prop. Cas. [*4]Corp., 7 Misc 3d 128[A], 2005 Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]; All County Open MRI & Diagn. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 N.Y.S. 2d 493, 2006WL 543132 (N.Y.Supp.App.Term)[2006]).)

To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity of Plaintiff’s services (see CityWide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 777 N.Y.S.2d 241, 2004 NY Slip Op. 24034 [Civ. Ct., Kings County 2004]; Nir v. Allstate Insurance Company, supra; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra). At trial, the defense that a claim was not medically necessary must be supported by sufficient factual evidence or proof and cannot simply be conclusory (see Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Company, 14 Misc 3d 1231 (A), 2007 NY Slip Op. 50224(U)) In the case at bar, both Defendant’s medical experts were very specific and detailed in explaining the basis for their medical opinion of lack of medical necessity. Both doctors testified that their opinion was based on the information contained in the medical reports received from the Plaintiff. That there was no mention in said medical reports that the patient had any prior trauma or medical condition to warrant performance of the tests, and that they had sufficient information from the records they reviewed, to form a basis of lack of medical necessity.

The issue before this Court is whether the tests ordered were medically necessary. As stated above, the burden is on the Defendant to establish that the tests in question were not medically necessary. This determination is made after a review of the patient’s medical records by the Defendant’s reviewing medical expert. It is therefore important that the patient’s entire medical records be submitted for review. In most cases, the Defendant’s medical expert do not examine or have any personal contact with the patient. The opinion contained in the Defendant’s medical expert’s peer review report is based primarily on a review of the patient’s medical records received from the Plaintiff. The Plaintiff is aware that the records submitted to the Defendant’s medical expert would be used as the basis for determining whether the tests ordered were medically necessary. Therefore, it is incumbent on the Plaintiff to submit the patient’s entire records including the patient’s medical history and all ancillary information used by the treating physician to make the determination that the tests ordered are medically necessary for the treatment and care of the patient.

Plaintiff argues that both Defendant’s medical experts acknowledged that a patient’s medical history would impact his or her care and treatment. That Defendant’s medical experts should have requested additional information from the Plaintiff to ascertain whether the patient had a history of prior trauma or medical condition. That if Defendant’s medical experts had information on the patient’s medical history, their opinion would have been different. The Court finds that the Defendant should not have to question whether there are additional records or information of the patient that would assist the Defendant in forming a medical opinion as to whether the tests performed were medically necessary. That the Defendant should not have to question whether the information received are the complete records of the patient in question. [*5]

The Court notes that contrary to the Plaintiff’s contention, this is not a case where the reviewing doctors considered the information in their possession insufficient to formulate a medical necessity determination (see Amaze Medical Supply Inc. v Allstate Insurance Co., 12 Misc 3d 142(A), 824 N.Y.S. 2d 760; Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A), 824 N.Y.S.2d 763, 2006 WL 1865021)). On the contrary, it is the Defendant’s contention that the medical records received contained sufficient information to enable them to form a medical opinion on the issue at bar. It is also Defendant’s contention that the fact that there was no mention in said records of the patient’s medical history, established that either the patient did not have a prior medical history or that said history was not a factor that was considered in determining the patient’s treatment and diagnosis. The Court credits Defendant’s testimony and finds that Plaintiff’s rationale is inconsistent with the legislative intent that no-fault claims be expeditiously paid.

Plaintiff presented no witnesses at trial. Therefore, based on the unrebutted testimony of Defendant’s medical experts and the peer review report, it is this Court’s finding that Defendant has met its burden of establishing lack of medical necessity. Where the Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to the Plaintiff who must then present its own evidence of medical necessity (see Prince Richardson on Evidence §3-104, 3-202 [Farrell 11th ed]; Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231 (A) [2007]). By failing to produce any witness(es) at trial, Plaintiff has failed to meet its burden.

Accordingly, the Plaintiff’s complaint is hereby dismissed. This constitute the Decision and Order of the Court.

February 25, 2008__________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, Kings County

073321/06

Counsel for Movant-Defendant:

Short & Billy, P.C.

217 Broadway, Suite 300

New York, NY 10007

Tel.: (212) 732-3320

Counsel for Cross-movant-Plaintiff:

Ilona Finkelshteyn, P.C.

2503 65th Street

Brooklyn, NY 11204

Tel.: (718) 382-1266

Peter Paul Sweeney, J.

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff Friendly Physician, P.C. moves for summary judgment and defendant Progressive Insurance Company cross-moves to compel discovery. In opposition to plaintiff’s motion, defendant argues, among other things, that plaintiff did not establish its entitlement to summary judgment inasmuch as the no-fault claim forms underlying the action were not submitted in admissible form.

To prevail on its motion, plaintiff had the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant and that payment of no-fault benefits is overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2nd Dep’t 2004]; AVA Acupuncture, P.C. v. GEICO General Ins. Co.,17 Misc 3d 41[App. Term, 2d & 11th Jud. Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128(A), 2003 NY Slip Op 51701(U), 2003 WL 23310886 [App. Term, 2d & 11th Jud Dists] ). To meet this burden, plaintiff was required to establish the admissibility of the no-fault claim forms by demonstrating that they are business records within the meaning of CPLR 4518[a] (see [*2]e.g., Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 46 [App Term, 2nd & 11th Jud Dists 2006]; Great Wall Acupuncture v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 142(A), 2007 NY Slip Op. 50364(U)[App Term 2d & 11th Jud Dists]; Bath Med. Supply, Inc. v. Allstate Ins. Co.,16 Misc 3d 135(A), 2007 NY Slip Op. 51602(U) [App Term, 2nd & 11th Jud Dists] ). To do this, plaintiff was required to submit an affidavit or other admissible proof demonstrating that the claim forms were made in the regular course of business and reflect a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, that it was the regular course of business to make the claim forms, in other words, that they were made pursuant to established procedures for the routine, habitual, systematic making of such a record, and that the claim forms were made at the time of the acts, transactions, occurrences or events described therein, or within a reasonable time thereafter (see People v. Cratsley, 86 NY2d 81, 89 [1995]; People v. Kennedy, 68 NY2d 569, 579-580 [1986]; Williams v. Alexander, 309 NY 283, 286 [1955] ).

To lay the foundational elements through an affidavit, the affiant must aver that he or she had personal knowledge of the business practices and procedures pursuant to which the claim forms were made (see Dan Medical, P.C., 14 Misc 3d at 46, citing Hefte v. Bellin, 137 AD2d 406, 408 [1st Dep’t 1988]; Dayanim v. Unis, 171 AD2d 579 [1st Dep’t 1991]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A), 2006 NY Slip Op. 51879(U), 2006 WL 2829993 [App. Term, 2d & 11th Jud Dists]. The affidavit must also demonstrate that the preparer of the claim forms had actual knowledge of the events recorded therein or that he or she obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events to the preparer (see Capasso v. Kleen All of America, Inc., 43 AD3d 1346 [4th Dep’t 2007], citing Alexander, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:1; Matter of Leon RR, 48 NY2d 117, 122-123 [1979]; see also Johnson v. Lutz 253 NY 124, 128 [1930]; Toll v. State, 32 AD2d 47, 49 [3rd Dep’t 1969] ).

Applying these principles, the court finds that the affidavit submitted by plaintiff to show that the no-fault claim forms are business records was woefully insufficient. No details were set forth in the affidavit as to how the claim forms were generated. Certainly, there was no showing that they were made in the regular course of business or that it was the regular course of plaintiff’s business to make the claim forms.

The affidavit does not indicate that the preparer of the claim forms had actual knowledge of the events recorded therein, nor does it indicate that the preparer obtained knowledge of those events from someone with actual knowledge of them and who was under a business duty to report them to the preparer.

Finally, the affidavit did not demonstrate that the affiant possessed personal knowledge of plaintiff’s office practices and procedures. The court refuses to speculate that the affiant had such knowledge simply because the identified herself as plaintiff’s billing manager.

At oral argument, plaintiff’s counsel argued that the holding in Infinity Health Products, Ltd. v. New York Central Mutual Fire Insurance Company, 17 Misc 3d 130(A), 2007 NY Slip Op. 51984(U) [App Term, 2nd & 11th Jud Dists] supports its position that the affidavit at issue is sufficient to demonstrate the admissibility of the no-fault claim forms. In Infinity Health [*3]Products, Ltd., supra., the Appellate Term affirmed an order which awarded summary judgment to a plaintiff medical supplies provider, stating: “[f]or the reasons stated in Dan Medical, P.C. v. New York Central Insurance Co. ( Misc 3d , 2007 NY Slip Op [App Term, 2nd & 11th Jud Dists], decided herewith, the judgment is affirmed (emphasis added).” Plaintiff’s counsel maintained that the affidavit at issue in Infinity Health Products, Ltd. was virtually identical to the affidavit at issue here.

Whether the affidavit in Infinity Health Products, Ltd. is virtually identical to the one now before the court is of no moment. In the Dan Medical, P.C. case ^[FN1] cited by the court in Infinity Health Products, Ltd., the court stated: “[i]nasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto (id.).” Thus,it is apparent that in both Infinity Health Products, Ltd., supra. and Dan Medical, P.C., supra, the court never passed on whether the plaintiff established its prima facie entitlement to summary judgment. Thus, Infinity Health Products, Ltd. can not be viewed as appellate approval for the proposition that the affidavit before the court is sufficient to establish the admissibility of the no-fault claim forms.

In sum, inasmuch as plaintiff did not demonstrate that the no-fault claim forms annexed to the motion were business records within the meaning of CPLR 4518[a], plaintiff did not establish its entitlement to summary judgment. Accordingly, the motion must be denied regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ).

For the reasons stated above, it is hereby

ORDERED that plaintiff’s motion for summary judgment is DENIED; and it is further

ORDERED that defendant’s cross-motion, which plaintiff did not oppose, is GRANTED solely to the extent that plaintiff is directed to serve answers to defendant’s interrogatories within 45 days of the service of this order with notice of entry.

This constitutes the decision and order of the court.

Dated: December 3, 2007____________________________________

PETER P. SWEENEY

Civil Court Judge

Footnotes

Footnote 1:The Dan Medical, P.C. case cited in Infinity Health Products, Ltd. should not be confused with the seminal case of Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 829 N.Y.S.2d 404 [App Term, 2nd & 11th Jud Dists 2006] which held that a plaintiff in an action to recover no-fault benefits must submit the underlying no-fault claim forms in admissible form to prevail on a motion for summary judgment.

Civil Court of the City of New York, Kings County

075350/05

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignors. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $1,791.00. Based on the testimony and evidence adduced at trial, this Court renders the following findings of fact and conclusions of law.

The parties stipulated to Plaintiff’s prima facie case and Defendant’s timely denial of the claim. The only issue to be decided by the Court is whether the magnetic resonance imaging (MRI) tests of Plaintiff’s assignor’s cervical and lumbar spine were medically necessary. Defendant bore the burden of proof on this issue. Therefore, Defendant had the burden to establish by admissible evidence its belief that the services rendered were not medically necessary (11 NYCRR 65.15). If the Defendant sustains this burden, the burden of persuasion shifts back to Plaintiff to submit rebuttal evidence that the services rendered were medically necessary (see, A.B. Medical Services, PLLC v. State Farm Mut. Auto. Ins., Co., 7 Misc 3d 822, 795 N.Y.S. 2d 843; V.S. Medical Services, P.C. v. Allstate Insurance Co., 11 Misc 3d 334; PDG Psychological, P.C., v. State Farm Insurance Co., 12 Misc 3d 1183(A); Citywide Social Work & Psy. Serv. V. Travelers Indem. Co., 3 Misc 3d 608 [Civ. Ct. Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 (U), 2003 WL 22471156 [Civ. Ct., Kings Co., 2003] Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231(A), 836 N.Y.S.2d 492, 2007 NY Slip Op. 50241(U); Williamsbridge Radiology & Open Imagining v. Travelers Indem. Co., 14 Misc 3d 1231(A), 836 N.Y.S. 2d 496, 2007 NY Slip Op. 50224(U)).

At trial, Defendant called Dr. Michael N. Berke, a Chiropractor, as its chief and primary witness. Dr. Berke testified that based on his examination of the assignor and review of the medical records he found no objective findings of spasm, no positive orthopedic tests or radicular complaints to justify the MRIs. The Plaintiff called Dr. Michael Walsh, a Neurologist, as its rebuttal witness. Dr. Walsh testified that he reviewed the treating physician’s medical report and that based on the assignor’s complaints, the MRIs were medically necessary. [*2]

The parties have submitted post trial memorandums. Defendant argued that Dr. Berke examined the assignor one day after the cervical MRI and three days prior to the lumbar MRI; that the assignor had no complaints of radiating pain at that examination; that based on Dr. Berke’s examination and his review of the medical report of the treating physician, Dr. Abbot, the MRIs were not medically necessary at the time when they were performed. Dr. Berke stated that his opinion is based on what is reasonable and customary in the medical field as well as his twenty (20) years of practice as a Chiropractor.

The Plaintiff argued that the assignor’s complaints included radiated

pain from the neck to the head, to the arms and the left lower extremity. ` Dr. Walsh testified that the Spurling test was positive, that there was restricted range of motion and spasm in the cervical spine, that the MRI test is considered as the goal standard to determine injury to the cervical and lumbar spine and therefore, the MRIs were appropriate to determine any possible permanent injury to the spine.

In determining whether services are not medically necessary, the Court is concern with proof demonstrating that the services were not reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluation and treatment of the patient (see, Fifth Avenue Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 766 N.Y.S. 2d 748, [Civ. Ct., Queens Co., 2003]). When a treating physician prescribes necessary medical services, that patient should receive those services promptly without the need of committee or board approval (see, New York Neurology Associates, PC, v. Allstate Insurance Company, 2003 NY Slip Op. 51297( U) citing Tudor v. Metropolitan Life Insurance Co., 143 Misc 2d 180). A review of the history behind No-Fault Law clearly demonstrates a preference for expedient review of claims with an eye towards benefitting the insured (see Fifth Avenue Pain Control Center v. Allstate Ins. Co., supra). Therefore, any uncertainties concerning the reasonableness of the services are to be resolved in favor of coverage (New York Neurology Associates, PC, v. Allstate Insurance Company, supra).

Here, the Court finds that the Defendant’s medical evidence demonstrated that the services were not medically necessary. However, Plaintiff has sufficiently rebutted Defendant’s medical testimony and has demonstrated the medical necessity of its claims. Dr. Walsh testified that based on the assignor’s age, complaints of back and neck pain and the findings of various objective tests, it was medically necessary to perform the MRI to determine if there was structural damage to the assignor’s cervical and lumbar spine.

Accordingly, judgment is entered in favor of the Plaintiff in the amount of $1,791.00 with statutory interest, costs and attorney fees.

This constitutes the Decision and Order of the Court.

Dated: November 27, 2007_____________________________Sylvia G. Ash, J.C.C.

Civil Court of the City of New York, Kings County

044270/04

For Plaintiff: Gary Tsirelman, P.C.

For Defendant: McDonnell & Adels, P.C.

Eileen N. Nadelson, J.

On September 12, 2005, this court granted Plaintiff’s Motion for Summary Judgment on default, awarding Plaintiff $635.00 for first party No-Fault insurance benefits. The judgment was filed and entered on September 16, 2005.

On or about February 13, 2006, Defendant filed a request for a Declaratory Judgment in the Supreme Court to have that court declare that Plaintiff’s assignors had staged the accident subject to the No-Fault claims. Plaintiff was neither named in the Declaratory Judgment nor notified of its pendency.

On March 15, 2006, the Supreme Court granted Defendant’s Declaratory Judgment on the default of the named assignors and issued a stay of all proceedings. The court’s order stated that Defendant had no duty to pay claims for No-Fault benefits to the named assignors and that the accident subject to these claims was to be deemed “intentionally staged fraudulent and therefore uncovered event.”[sic]

On March 30, 2006, Plaintiff, who was never served with a copy of the Supreme Court order, served Defendant with the Notice of Entry of the Civil Court’s order of September 12, [*2]2005. On May 3, 2006, Plaintiff proceeded to enter judgment on the default, and on May 12, 2006, Defendant’s new counsel advised Plaintiff of the Supreme Court stay. On July 27, 2006, the Civil Court clerk entered the Default Judgment against Defendant.

On September 14, 2006, Defendant filed this instant Order to Show Cause to enforce the Supreme Court stay and to vacate the Notice of Entry of the Civil Court Default Judgment. In its papers, Defendant asserts that Plaintiff is collaterally estopped from enforcing the Default Judgment based on the Supreme Court’s Declaratory judgment.

In support of its assertion, Defendant cites Mulverhill v. State, 257 AD2d 735, 682 NYS2d 478 (3d Dept. 1999), which states, in pertinent part:

The doctrine of collateral estoppel…precludes a party from re-litigating in a

subsequent action or proceeding an issue clearly raised in a prior action or

proceeding and decided against that party or those in privity…. Only two

elements need be established; first, that the identical issue was necessarily

decided in the prior action and is decisive in the present one, and, second,

that the party to be precluded had a full and fair opportunity to contest the

prior determination.

Plaintiff opposes Defendant’s arguments. The Declaratory Judgment was brought against Plaintiff’s assignor to have the alleged accident deemed a staged event not covered by the No-Fault law. Plaintiff maintains that it cannot be collaterally estopped to enforce the No-Fault award because Plaintiff was not a party to the Supreme Court action and therefore had no opportunity to defend against Defendant’s assertions.

In analyzing the definition of collateral estoppel as stated above, this court believes that the requisite elements to hold Plaintiff estopped in the instant proceeding may not exist. First, the No-Fault action preceded the Declaratory Judgment action, and therefore the issue is not being re-litigated in a subsequent proceeding. Second, Defendant was not named in or notified of the Declaratory Judgment action, and therefore had no opportunity to contest the determination. And third, even though Plaintiff stands in privity with the persons named in the Declaratory Judgment, that decision was rendered on default of those persons. The court has no information as to the reason for such default, which could, in fact, be lack of service. If such be the case, that would negate the assumption that they were afforded the opportunity to contest and simply chose to decline.

However, regardless of our analysis of the collateral estoppel argument, this court lacks the jurisdiction to review the decision of the Supreme Court. Any argument Defendant may posit with respect to the underlying appropriateness of the Supreme Court decision must be made before that tribunal. At this point this court is obligated to give full effect to the Declaratory Judgment insofar as it stays all proceedings arising out of the alleged accident with respect to the instant assignor. Since the Entry of Judgment was filed after the Declaratory Judgment was [*3]issued, this court must find the Entry of Judgment of the No-Fault Summary Judgment to be a nullity. This is true even though Plaintiff acted innocently and without knowledge of Declaratory Judgement.

Having determined that the Entry of Judgment is a nullity, the court is faced with the fact that the Summary Judgment in favor of Plaintiff still stands since it predates the Declaratory Judgment. As a consequence, should the stay eventually be lifted, the judgment could be entered at that time. Therefore, this court feels compelled in the interests of efficient administration of justice to determine whether Defendant has provided sufficient grounds to vacate its default of the original No-Fault Motion for Summary Judgment.

Section 5015 of the CPLR provides the grounds upon which a default may be vacated. Simply stated, in order for a defaulting party to have the judgment vacated, within one year of entry of judgment, it must provide the court with a reasonable excuse for its default and evidence of a meritorious defense. In the instant case Defendant has provided absolutely no reason why it never appeared for the argument on the Summary Judgment motion. However, the Supreme Court’s decision on the Declaratory Judgment, even though rendered on default, does provide some evidence of a meritorious defense.

In F & C General Contractors Corp. v. Atlantic Mutual Mortgage Corp., 202 AD2d 629, 612 NYS2d 871 (2d Dept. 1994), the Appellate Court stated that “it is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby.” In this case the court did not adhere to the one year statutorily imposed time limit.

Further, in Lane v. Lane, 175 AD2d 103, 572 NYS2d 14 (2d Dept. 1991), the Appellate Court exercised its discretion in permitting a person not even a party to the underlying action to bring a motion to vacate a judgment. The person seeking the vacatur was directly impacted adversely by the judgement he sought to vacate. The court stated that the default judgment was vacated in the interests of justice because “substantial justice will be subserved and injustice prevented.”

With respect to the instant motion, this court feels obligated to exercise its discretion in favor of vacating its initial Default Judgment in the interests of the efficient administration of the judicial system. As a general principle, the court prefers issues to be decided after a full hearing on the merits rather than by default. This is especially true in the instance of No-Fault claims in which assertions of staged accidents have become commonplace. Despite the fact that Defendant did not appear for oral argument on the Summary Judgment motion, the court notes that Defendant did submit opposition papers in which it posited the argument that the accident that was subject of the claim was staged and therefore not a covered event. This court would prefer to err on the side of caution and justice to make sure that fraudulent claims are not given the imprimatur of judicial sanction simply because a party fails to appear for oral argument. [*4]

Therefore, after deliberating on all of the arguments presented by both sides, the court grants Defendant’s motion to the extent of vacating the Entry of Judgment based on the Supreme Court stay, and further vacates its initial Default Judgment because the Supreme Court order, along with the facts alleged in Defendant’s opposition papers to the original motion, raise a question of fact that precludes summary judgment. CPLR 3212, See generally Gilson v. Metropolitan Opera, 5 NY3d 574, 807 NYS2d 558 (2005). In reaching this conclusion, the court is not making a determination of the collateral estoppel effect of the Declaratory Judgment on Plaintiff; rather it is simply denying Plaintiff’s Motion for Summary Judgment because questions of fact exist.

This constitute the decision and order of the court.

Dated: November 23, 2007

__________________________

EILEEN N. NADELSON, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, November 6, 2007

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Kim Rasin of counsel), for plaintiff. De Martini & Yi, Williston Park (Dana M. Koos of counsel), for defendant.

{**17 Misc 3d at 950} OPINION OF THE COURT

Genine D. Edwards, J.

{**17 Misc 3d at 951}At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff’s prima facie case was established, the defendant’s denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant’s witness was an expert. The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.; the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with a case with the index number 19685/06, regarding assignor Connie Brady, this court, via correspondence dated August 7, 2007, required the parties to submit posttrial memoranda with respect to plaintiff’s motion in limine regarding the time for scheduling an examination under oath. Plaintiff’s memorandum was due on September 11, 2007 and defendant’s memorandum was due on October 11, 2007. Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff’s motion in limine be denied for failure to comply with this court’s briefing schedule.

The plaintiff orally argues that the defendant’s request for an examination under oath did not toll defendant’s time to pay or deny plaintiff’s claims because the examination under oath was scheduled more than 30 days after receipt of the claim. Plaintiff relies on Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) and 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]). Defendant counters that Regulations § 65-3.5 (d) only relates to medical examinations, while subdivision (e) instructs as to examinations under oath. The defendant argues that subdivision (e) does not direct a date certain or a specific time to schedule the examination under oath; the subdivision only discusses a reasonable time and place for such examination.

After due deliberation of the evidence and arguments asserted, this court finds that the plaintiff’s contentions are correct. Although case law directly on point could not be found, this court must be guided by the legislative intent to resolve no-fault matters expeditiously. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Fair Price Med. Supply [*2]Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term,{**17 Misc 3d at 952} 2d & 11th Jud Dists 2005]; Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [Civ Ct, Queens County 2005].) Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; S & M Supply, supra.)

However, the plaintiff failed to offer any evidence as to when it received the verification forms. Thus, this court cannot determine whether the examinations were scheduled within the requisite time period. Therefore, plaintiff’s motion is denied.

Since the parties stipulated that plaintiff’s prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact. The defendant fails at its burden. There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests. (Mega Supply & Billing, Inc. v AIU Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50687[U] [App Term, 2d & 11th Jud Dists 2007]; Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 144[A], 2007 NY Slip Op 50394[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]; Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists 2005].) Hence, defendant’s time to pay or deny the plaintiff’s claims was never tolled.

Assuming, arguendo, that the defendant met its initial burden of timely mailing, this court finds that the defendant’s expert’s testimony was unpersuasive. Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases. This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822 for each case, as well as statutory interest and attorney’s fees.

[*1]

Supreme Court, Kings County, September 24, 2007

APPEARANCES OF COUNSEL

Mitchell N. Kaye P.C. (Craig DeMeo of counsel), for Wilda Norgaisse and others, defendants. Picciano & Scahill, P.C. (Mary Ann Candelario-Jones of counsel), for Marie Mirville, defendant. McDonnel & Adels, P.C. (Robert J. Schwerdt of counsel), for plaintiff.

{**17 Misc 3d at 601} OPINION OF THE COURT

Francois A. Rivera, J.

By order to show cause dated May 11, 2007, defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure (hereinafter defendant movants)^[FN*] jointly move this court pursuant to CPLR 5003-a for an order directing that plaintiff State Farm Mutual Automobile Insurance Company pay defendant, Wilda Norgaisse, the amount of $25,000 plus interest from September 29, 2005 in accordance with their stipulation of settlement. Plaintiff opposes the order to show cause.

On June 29, 2006, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office (KCC). The complaint consists of 68 allegations of fact in support of four causes of action for declaratory judgment. Plaintiff alleges the defendants attempted to defraud plaintiff by staging an accident. As a result of the fraud, plaintiff alleges it is entitled to a declaration that its policy with defendant Marie Mirville is null and void and that it has no duty to provide coverage under the policy for any claims for personal injury, no-fault benefits, or uninsured motorist benefits made by or in behalf of any person or entity.

Defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure joined issue by their verified answer, filed on May 11, 2007 with the KCC. The answer contained four affirmative defenses and no counterclaims.

Undisputed Facts

The following facts are undisputed. On or about September 26, 2004, State Farm issued a policy, No. 109 96060-c26-32, for a 1996 Hyundai Sonata to Marie Mirville, 28 Dewitt Place, [*2]No. 1, New Rochelle, New York, 10801; said policy affording minimum liability limits of $25,000/$50,000.

Said policy was purchased by State Farm’s insured, Marie Mirville, from a broker named John W. Goon, 4512 Church Avenue, Brooklyn, New York, 11203. On November 9, 2004, approximately six weeks after the issuance of said policy, State Farm’s insured, Marie Mirville, while operating the insured{**17 Misc 3d at 602} Hyundai, was involved in an automobile collision at Rogers Avenue and Linden Boulevard within the confines of the 67th Precinct in Kings County.

In relation to this collision, a claim was made against the aforesaid policy by Marie Mirville. Said claim lists injuries to the driver of the adverse vehicle, Barry Mamadou, and the claimants, Wilda Norgaisse, and Alonzo Colbert.

On or about September 29, 2005, a release was executed by the claimant Wilda Norgaisse and forwarded to State Farm the following day. Predicated upon this release and prior to the commencement of any action, State Farm issued a check, dated October 18, 2005, in the name of their insured, Marie Mirville, in connection with the underlying loss of November 9, 2004, payable to Wilda Norgaisse, in the amount of $25,000.

On or about October 20, 2005, State Farm stopped payment on the aforesaid check. State Farm alleges that after conducting an investigation, it believes the underlying accident was staged and that it is therefore entitled to disclaim coverage.

Defendants bring this order to show cause requesting that the court order State Farm to honor its settlement agreement and pay Wilda Norgaisse $25,000 plus interest retroactive to September 29, 2005, the date she executed the release.

Motion Papers

Defendant movants’ order to show cause consists of an affirmation of their counsel, Patrick J. McGrath, and seven annexed exhibits. Exhibit A is a New York City Police Department accident report (MV-104AN) of the November 9, 2004 collision. Exhibit B is a release signed by defendant Wilda Norgaisse, releasing and discharging codefendant Marie Mirville from all actions for personal injury related to the November 9, 2004 collision. Exhibit C is a check dated October 18, 2005 from State Farm to Wilda Norgaisse in the amount of $25,000. Exhibits D and E are the summons and complaint and verified answer in an earlier action brought by the movants against Marie Mirville in Kings County Supreme Court under index number 34455/05. Exhibits F and G are the summons, complaint and verified answer of the instant underlying action.

Plaintiff’s affirmation in opposition consists of an affirmation of its counsel, Robert Schwerdt, and 13 annexed exhibits. Exhibit A is Marie Mirville’s policy declarations. Exhibit B is the same MV-104AN annexed in the movants’ paper as exhibit A. Exhibit C is State Farm’s auto claim service record of the{**17 Misc 3d at 603} November 9, 2004 collision. Exhibit D is a copy of the same check annexed in the movants’ papers as exhibit C. Exhibits E and F are affidavits signed on March 24, 2006 from State Farm investigators Grace Peters and Maria Castaneda. Exhibit G is a letter, dated February 14, 2006, from Thomas Mansfield, an investigator for New York Automobile Insurance Plan (NYAIP) to Robert Murray, a coordinator for NYAIP. Exhibit H is an Internet search result using the name Marie Mirville. Exhibit I is an Internet search result using the name Wilda Norgaisse. Exhibits J and K are MV-104ANs of automobile collisions that occurred on August 31, and October 16, 2004. Exhibit L is a letter, dated November 1, 2005, from Peter Crescenti, president of International Claims Service and Investigations, Inc. to Grace [*3]Peters, a State Farm investigator followed by a copy of the MV-104AN of the November 9, 2004 collision. Exhibit M is an MV-104AN of an automobile collision that occurred on December 14, 2004.

Defendant movants submitted an affirmation of their counsel in reply to plaintiff’s opposition papers.

Law and Application

There are two specific statutes dealing with enforcement of agreements that should be analyzed in connection with the instant motion, namely, CPLR 2104 and 5003-a. In simple terms, defendant movants seek specific performance of a settlement agreement via the procedural vehicle of an order to show cause and the substantive law of CPLR 5003-a. Defendant movants’ counsel concedes the inapplicability of CPLR 2104 to their motion but argues that CPLR 5003-a does apply and may be extended to authorize the relief they seek.

CPLR 2104 provides as follows:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.”

The Court of Appeals has made a strong statement that the formalities of CPLR 2104 must be met as a prerequisite to{**17 Misc 3d at 604} judicial enforcement of out-of-court stipulations of settlement (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281 [2004]; see generally, Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2104:2, at 761-764). Unless a stipulation of settlement complies with CPLR 2104, it is not enforceable as a stipulation. As both plaintiff and defendant movants have stated in their affidavits, there was no pending action at the time of the agreement to settle.

“CPLR 2104 refers to ‘parties’ and ‘matter[s] in an action’ . . . Before the actual service of a summons there is no action, and the disputants have not yet become parties to one. The CPLR itself is intended to ‘govern the procedure in civil judicial proceedings’ . . . Neither the CPLR in general nor section 2104 in particular have application to the conduct of prospective litigants before a proceeding commences” (Cohen v Coleman, 110 Misc 2d 419, 422 [Sup Ct, Queens County 1981]).

As previously mentioned, when State Farm issued a check to Wilda Norgaisse, they were not parties to any action. Defendant movants argue that notwithstanding the strict statutory language which limits applicability of CPLR 5003-a to actions already commenced, the force and intent of the statute is to promote prompt payment of settlement agreements. They contend that this impetus should be sufficient to authorize judicial enforcement of agreements made prior to commencement of an action.

CPLR 5003-a (a) states in relevant part:

“When an action to recover damages has been settled, any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.”

Before 1992, the law imposed no general time limit within which the sum agreed to in the settlement of an action had to be paid. Effective June 30 of 1992, CPLR 5003-a enacted a time limit (L 1992, ch 269). The consequence of not paying the stated amount of the settlement on time is that costs and disbursements will now be added to it, along with interest. If the settlement is substantial, the interest can quickly become so, too. Furthermore, the judgment may be entered with no further notice to the defendant. The purpose of CPLR 5003-a is to encourage{**17 Misc 3d at 605} prompt payment of settlements by having defendants face not only the prospect of additional costs by their tardiness but also the entry of judgment against them without an opportunity to be heard (see generally David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5003-a, at 121-123).

The court, however, may not stray from the unequivocal statutory constraints expressed in CPLR 5003-a. The CPLR itself, and CPLR 5003-a in particular, applies to actions. It may not be invoked to seek judicial enforcement of an agreement made before an action commences. Therefore CPLR 5003-a and 2104 are inapposite to the instant motion for the exact same reason.

It is noted that the defendant movants did not plead a counterclaim alleging breach of the agreement or demanding specific performance of the agreement. In the absence of a cause of action for breach of contract seeking specific performance, defendant movants may lose the opportunity to ever obtain the remedy they seek. The court does not and will not deem the instant order to show cause to be a summary judgment motion pursuant to CPLR 3212. Defendant movants are not precluded from seeking leave of the court to amend their answer to include such a claim and then moving for summary judgment thereafter. However, judicial enforcement of the stipulation by the instant order to show cause is denied.

Footnotes

Footnote *: Defendant movants’ counsel in the first paragraph of his affirmation states that he is the attorney for Wilda Norgaisse, Alonzo Colbert, and Alex Cheure. However, in the second paragraph he advises that these three defendants as well as Marie Mirville affirm through counsel their support of the motion. The court deems the inference that Marie Mirville is one of the movants to be an error and will disregard it pursuant to CPLR 2001.

Civil Court of the City of New York, Kings County

97323/04

Lila P. Gold, J.

This Order to Show Cause was brought by the defendant in Special 1 in order to clarify the Court’s Decision and Order dated May 16, 2006 granting Plaintiff’s motion for summary judgment.

The Decision and Order dated May 16, 2006 granted judgment for Plaintiff in the amount of $1714.00 plus statutory interest, attorneys’ fees and costs/fees of $65.00.

Defendant made payment to Plaintiff upon receipt of the Order in the amount of $2,460.16 and $557.03. Plaintiff claims that approximately $450.00 of the judgement amount has not been paid. The discrepancy in the amount due to Plaintiff is the based upon the date from which interest, and attorneys’ fees thereon, begin to accrue. It is Defendant’s position that interest should be calculated from the filing of the summons. Plaintiff’s contends that interest should be calculated from thirty (30) days after Defendant received Plaintiff’s bills for no-fault benefits.

This court is asked to determine at what point interest begins to accrue on an untimely denial and/or improper denial under the no-fault regulations. It is plaintiff’s contention that interest on untimely and/or improper denials received by an assignee/medical provider should begin to accrue 30 days after an insurer receives a proper proof of claim. Defendant argues that interest should not accrue until the no-fault claimant requests arbitration or institutes a lawsuit. Plaintiff and Defendant both presented a civil court decision, East Acupuncture, P.C. v. Allstate Ins. Co., 2005 NY Slip Op 25242, 2 (NY Misc. 2005), which was directly on point regarding this issue. Plaintiff based their position on the holding in East Acupuncture, P.C. (Id.) that interest is to accrue from the thirtieth day after submission of a bill if the Defendant issues a late or improper denial. Defendant’s papers respectfully submitted that the court in East Acupuncture, P.C. erred in its decision.

Subsequent to Defendant’s filing of the Order to Show Cause, the Appellate Term of the Supreme Court for the 2nd and 11th Districts reversed the order of the J. Matos entered June 28, 2005. East Acupuncture, P.C. v. Allstate Ins. Co., 2007 NY Slip Op 27109 (NY Misc. 2007). In this decision, the Appellate Term concluded that “the regulations, read as a whole in accordance with the rules of construction, the deference to be accorded the Superintendent’s assertion of intent, and the undesirable consequences of exempting assignees from the limitation imposed by 11 NYCRR 65-3.9 (c), lead to the conclusion that the reference to “applicant” in 11 NYCRR 65-[*2]3.9 (c) includes an eligible injured person’s assignee.” East Acupuncture, P.C. (Id.) Therefore, concluding that interest does not begin to accrue on an untimely denial and/or improper denial under the no-fault regulations until the no-fault claimant requests arbitration or institutes a lawsuit.

Based upon the foregoing, interest did not begin to accrue on this claim until the filing of the summons.

Accordingly, Defendant’s Order to Show Cause is hereby granted. Marshal’s Notice of Levy and Sale is vacated, Defendant has satisfied the underlying order in this matter dated May 16, 2006.

This opinion constitutes the decision of the Court. A copy of this decision will be mailed to the parties.

Dated:May 30, 2007

____________________________

Lila P. Gold, J.C.C.