Civil Court, Kings County

070407/04

Ellen M. Spodek, J.

defendant State Farm Insurance Company moves for an order severing the action brought by plaintiff into separate actions on behalf of the individual assignors.

In this action, plaintiff seeks to recover first party No-Fault benefits with interest and statutory attorneys fees from defendant for alleged medical services provided to its assignors.

Defendant’s motion to sever is hereby denied. The Appellate Division has held that when “claims arise out of a uniform contract of insurance and involves interpretation of the same no-fault provisions of the Insurance Law” severance need not be granted. The Court found that even if the claims involved separate accidents and individuals they do not lose their character as a series of transactions because they occur at different places and times and if they involve a common question of law, as the case at bar does, joinder is proper. ( see Hempstead General Hosp. v Liberty Mut. Ins., 134 AD2d 569 [2d Dept. 1987]). Defendant failed to submit any [*2]documents to demonstrate that the causes of action do not share common questions of law.

Moreover, the instant case involves one plaintiff and one defendant and CPLR 601 permits, and even encourages, joinder with as many claims as one plaintiff might have against one defendant, regardless of whether such claims are related.

Here, this Court finds that joinder of only four assignees does not impose an undue burden on defendant nor would it create confusion for the fact-finder. (see Hempstead, supra )

Lastly, the granting or denial of severance is left to the discretion of the Court. (Sporn v Hudson Transit Lines, 265 App.Div. 360; St. James Realty Corp. Level Realty Corp., 155 N.YS.2d 44; Biltmore Knitwear Corporation v Chalfin, 25 NYS2d 947). Accordingly, defendant’s motion is denied.The foregoing constitutes the decision and order of this court.

E N T E R,

Dated: January 20, 2005 __________________

Hon. Ellen M. Spodek

Judge, Civil Court

Civil Court of the City of New York, Kings County

070376/04

Eileen N. Nadelson, J.

Plaintiff, a medical provider, instituted this action to recover first party no-fault benefits from Defendant insurer. Plaintiff moved for summary judgment, alleging that Defendant neither paid nor denied the claim within the statutorily mandated thirty-day period after receipt of the claims. Ins. Law sec. 5106; Regulations sec. 65-3.8.

Defendant, in opposition, claimed that the denials were timely on their face; however, Plaintiff argued that Defendant failed to provide legally sufficient proof of mailing the subject denials within the thirty-day period.

Defendant’s proof of mailing consists of an affidavit from one of its employees who states that it is part of her regular duties and responsibilities to handle claims filed for no-fault benefits. The affidavit goes on to state that she reviewed the records of the instant claim and based on that review, has determined that the denial was mailed on the date appearing on the denial form. She finally states that, “as per the regular course of business of this office, the bill was timely denied .” [*2]

The question before the court, one that has caused much confusion and litigation, is the information that must appear on an affidavit of mailing to meet the requirements of New York’s no-fault law to evidence a proper proof of mailing.

Generally, proof of proper mailing gives rise to a presumption that the item was received by the addressee. This presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Insurance Co., 286 A.D> 2d 679, 729 NYS2d 776 (2d Dept. 2001).

In A & S Medical, P.C. v. Allstate Insurance Co., 2002 NY Slip Op. 50121(U) (1st Dept. 2002), the Plaintiff established proof of mailing the claim by an affidavit of one of its employees who actually placed the application in an envelop and then mailed the envelop at the post office herself by return receipt certified mail. This Plaintiff further presented the postal receipts, which the court concluded constituted proof of mailing the claim. In this case, the court further adduced that the defendant’s affidavit of an employee who reviewed the file and concluded that the claim was not received was inadequate to rebut the presumption of the plaintiff’s mailing of the claim.

Proof of proper mailing requires evidence of actual mailing or a standard office practice or procedure designed to ensure that the items are properly addressed and received. Affidavits that make no reference to the specifics of the office mailing practice or procedure, which merely aver that the bills were mailed within the statutory time period, are insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Insurance Co., 4 Misc 3d 133(A) (NY Sup. App. Term 2004).

Consequently, in order to meet its burden of proving that denials were mailed within the thirty-day period, an insurer must attach an affidavit of an employee who personally mailed the denial or, conversely, the affidavit of an employee with personal knowledge of the office’s mailing practices and procedures, who describes those practices or procedures in detail, indicating how he or she acquired the knowledge of such practices or procedures, and whose personal review of the file indicates that those practices or procedures were followed with respect to the claim under review.

In the instant case, Defendant has failed to meet its burden of proving that the denials were mailed within the thirty-day period because the affidavit of its employee with respect to the mailing is legally deficient. The employee states that she is familiar with the office practices and procedures, but neglects to specify the details of those procedures. The affiant fails to state how she became familiar with these procedures, and her “personal knowledge’ consists merely of a review of the files, without stating at what point in the claim process she reviewed those files or the basis for her belief that regular office procedures were followed. Without sufficient substantiation that the denials were in fact mailed on the date claimed, the court must find for Plaintiff. [*3]

Summary judgment is awarded to Plaintiff. The clerk of the court is ordered to enter judgment in favor of Plaintiff in the amount of $1,181.63, plus statutory interest, costs, and attorney fees.

Dated: January 17, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court of the City of New York, Kings County

55621/03

Delores J. Thomas, J.

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff moves for an order granting it summary judgment.

Plaintiff commenced this action to recover for medical services it provided to five of its assignors pursuant to the no-fault endorsement contained in an automobile policy issued by defendant.

Plaintiff, as to each of its assignors, submits a copy of an assignment of benefits signed by each assignor and a copy of a verification of treatment form for each assignor. With respect to three of the assignors,^[FN1] plaintiff submits a copy of the denial of claim forms issued by [*2]defendant, which on their face indicate receipt by the defendant, and indicate a failure to deny the claim within thirty (30) days of receipt. With respect to the other two assignors,^[FN2] plaintiff submits an affidavit from Fenelly Olivares, in which he claims that he personally mailed the no-fault claims on January 10, 2003, as indicated in the annexed mailing receipt. In addition, plaintiff submits an affidavit from Shiva Hakimian, in which she claims that she is responsible for handling the claims of said two assignors, and that defendant failed to either pay or deny the claims of the two assignors within thirty (30) days of receipt.

A plaintiff establishes a prima facie case for recovery of no-fault benefits by submitting a statutory verification of treatment form showing the amount of the loss (A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 2004 WL 1301910 [AT 2nd & 11th Jud Dists.]; Choicenet Chiropractic, P.C. v. Allstate Insurance Co., 2003 WL 1904296 [AT 2nd & 11th Jud. Dists.]).

In this case, by submitting copies of the assignments, proofs of claim, copies of defendant’s denial of claim forms as proof of mailing of the claims for three of its assignors, and submitting proof of mailing as to the claims for the other two assignors, plaintiff has presented a prima facie case for summary judgment. Defendant’s denial of claim forms which indicate the date the claims were received is sufficient proof of mailing (A.B. Medical Services v. New York Central Mutual Fire Insurance Co., 3 Misc 3d 136 [A], NYLJ, June 2, 2004, p. 27, col. 4, 2004 WL 1302031 [AT 2nd & 11th Jud Dists.]).

In this case, plaintiff seeks reimbursement for services provided to its assignors from October 22, 2002 through January 6, 2003. Plaintiff sent completed verification of treatment forms for said services to defendant in December 2002 and January 2003. With respect to three assignors, the denial of claim forms sent by defendant, after it received the verification of treatment forms, were sent more than thirty (30) days after receipt of the claims. With respect to two of the assignors, there is no indication that any denial of claim forms were sent after receipt of the verification of treatment forms.

In defense of this action, defendant does not rely on the denial of claim forms sent after receipt of the verification of treatment forms, but rather relies on denial of claim forms sent prior to receipt of the subject verification of treatment forms. Prior to receiving the subject verification of treatment forms, defendant sent denial of claim forms with respect to each assignor, indicating that it was the defendant’s position, based on an independent medical examination, that no further medical treatment was necessary for the injuries suffered by each of the assignors. In addition, each denial of claim form provided a cutoff date after which defendant would not pay for medical services. Annexed to each denial of claim form was a report from a doctor which supported the claim that further medical treatment was unnecessary. These types of denials are called blanket disclaimers. It is defendant’s position that once it sent a blanket disclaimer any treatment provided after the cutoff date contained in the denial form would be covered by the blanket disclaimer; so that even if the denial forms sent after receipt of the verification forms were sent more than thirty (30) days after receipt of the claim, they would be timely, based on the earlier blanket disclaimer.

In A & S Medical, P.C. v. Allstate Insurance Co., 196 Misc 2d 322 (AT 1st Dept. 2003), lv to appeal granted NY App. Div. 2004 Lexis 9836 (1st Dept. July 5, 2004), the court, in [*3]passing on blanket disclaimers, stated as follows:

“Although defendant argues otherwise, its belated denial of plaintiff’s no-fault claim is not properly ‘deemed’ timely on the basis of its earlier blanket disclaimer of responsibility to reimburse plaintiff’s assignor for further orthopedic treatment, a disclaimer which predated plaintiff’s rendition of the services billed for and the filing of plaintiff’s claim form. ‘When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate[s] the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.’

The contrary construction urged by defendant effectively authorizing the sub rosa denial of properly filed no-fault claims is inconsistent with the plain language of Insurance Law § 5106(a) and, if adopted, would serve to vitiate the so-called 30-day rule embodied in 11 NYCRR 65.15(g)(3) and to undermine a core objective of the no-fault scheme ‘to provide a tightly timed process of claim, disputation and payment.” (at p. 323-324, citations omitted).

The distinction between A & S Medical and this case is that in A & S Medical the blanket disclaimer was served on the assignor, while in this case, defendant claims that the blanket disclaimers were served on plaintiff, the medical provider. Phillip Asciolla, an employee of defendant, claims that he handles claims for no-fault benefits filed with defendant, and that he has reviewed defendant’s records which indicate that the annexed copies of the blanket disclaimer were mailed to plaintiff with respect to each assignor.

Plaintiff, citing several cases, claims that the affidavit submitted by defendant’s employee is not sufficient to prove that the blanket disclaimers were mailed. In the cases cited by plaintiff, the plaintiffs in those cases submitted evidence of the defendant’s failure to deny the claim within thirty (30) days of receipt, so that the defendant’s employee’s claim that he checked the defendant’s records and that the denials had been timely mailed was insufficient. In this case, while plaintiff has shown that defendant’s denials, generated by its verification of treatment forms, were not timely mailed, plaintiff fails to submit an affidavit from a person with knowledge, that plaintiff never received the blanket disclaimers prior to plaintiff’s treating its assignors. Under these circumstances, defendant’s proof of mailing of the blanket disclaimer forms, in the absence of a sworn denial of receipt by plaintiff, is sufficient.

As noted above, the only distinction between this case and A & S Medical is that in A & S Medical the blanket disclaimer was served on the assignor while in this case the blanket disclaimers were served on plaintiff medical supplier. This distinction need not lead to a different result, since the Appellate Term in A & S Medical took a strong position that the no-fault statutory scheme requires the insurer to deny each claim it receives in a timely fashion, and cannot rely on a blanket disclaimer served prior to receipt of the verification of treatment form. As the Appellate Term noted, permitting such a blanket disclaimer would vitiate the thirty-day rule within which a claim must be denied. [*4]

In addition, even if a previously served blanket disclaimer could serve as a timely denial for subsequent medical treatment, the blanket disclaimers herein cannot be used by defendant as a defense. The blanket disclaimers herein are incomplete. They do not list the name of the medical provider in item 23, and unlike the denials served after receipt of the verification of treatment forms, which list the plaintiff medical provider as the applicant for benefits, the blanket disclaimers list the assignors as the applicants for benefits. An incomplete blanket disclaimer, which makes no mention of the medical provider, cannot be considered a timely denial of a claim for treatment which was subsequently provided, even if the blanket disclaimers were served on the medical provider. At the very least, if defendant wishes to rely on a blanket disclaimer, it must be properly completed. Thus, defendant’s belated denials of plaintiff’s no-fault claims cannot be deemed timely denied based on the previously served, but improperly filled out, blanket disclaimers.

Defendant cites Hospital for Joint Diseases v. Allstate Insurance Co., 5 AD3d 441 (2nd Dept. 2004), as standing for the proposition that a blanket disclaimer can act as a timely denial of subsequent treatment. In that case, the plaintiff claimed that it was entitled to summary judgment on two no-fault claims it sent on March 6, 2002, since the defendant had failed to either pay or deny the claims within thirty (30) days of receipt. The defendant submitted evidence that it had previously notified the plaintiff’s assignor that it had terminated her no-fault benefits based on an independent medical examination. In addition, defendant showed that it had previously issued timely denials for identical claims previously submitted by the plaintiff, and that the plaintiff had repeatedly resubmitted the identical claims, until, one time, the defendant failed to issue a timely denial. The court found that the defendant’s denial was timely, since it had previously timely denied the identical claim. This case is quite different from Hospital for Joint Diseases, since defendant herein never issued a timely denial.

A no-fault claim is overdue if it is not paid or denied within thirty (30) days of receipt. Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(1)(i). Since the blanket disclaimers are not valid, and since defendant either failed to pay or deny the claims with thirty (30) days of receipt, or never issued a denial, plaintiff’s no-fault claim is overdue.

Where an insurance company fails to deny a no-fault claim within thirty (30) days of receipt, it is precluded from raising the defense of lack of medical necessity (Amaze Medical Supply, Inc. v. Allstate Insurance Co., 2 Misc 3d 134[A], 2004 WL 758248 [AT 2nd & 11th Jud. Dists.]).

Defendant further argues that the fees sought by plaintiff exceed the Workers’ Compensation fee schedule. Since defendant failed to deny the claims within thirty (30) days of receipt, it is precluded from raising this defense (Mingmen Acupuncture Services, P.C. v. Liberty Mutual Insurance Co., 2002 WL 1362202 [AT 9th & 10th Jud Dists.]; Park Health Center v. Prudential Property & Casualty Insurance Co., 2001 WL 1803364 (AT 2nd 11th Jud Dists.]).

Accordingly, plaintiff’s motion for summary judgment is granted.

Interest on overdue claims accrues at 2% interest per month. Insurance Law

§5106(a); 11 NYCRR § 65.15(h)(1).

In accordance with 11 NYCRR § 65.17(b)(6)(v), once a court action is commenced, a party may recover attorneys’ fees in the sum of 20% of the amount of no-fault benefits awarded, including the interest awarded thereon, to a maximum of $850.00 per claim (Smithtown General Hospital v. State Farm Mutual Auto Insurance Co., 207 AD2d 338 [2nd Dept. 1994]).

The clerk is directed to enter judgment against defendant on the first cause of action [*5]in the sum of $1360.00, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against defendant on the second cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the third cause of action in the sum of $727.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the fourth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the fifth cause of action in the sum of $812.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the sixth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the seventh cause of action in the sum of $850.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against defendant on the eight cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the ninth cause of action in the sum of $85.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against the defendant on the tenth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York ________________________________

January 4, 2005 DELORES J. THOMAS

Judge, Civil Court

Footnotes

Footnote 1: Zoya Abayeva, Geraldine Aybar and Altagarcia Abayea.

Footnote 2: Alekandra Borukhova and Jeanne Rivkin.

[*1]

Civil Court of the City of New York, Kings County, December 21, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, Hauppauge (Robert J. Baker of counsel), for plaintiff. Carmen Callahan & Ingham, Farmingdale (Kerry-Ann Davidson of counsel), for defendant.

{**6 Misc 3d at 888} OPINION OF THE COURT

Ellen Gesmer, J.

This case presents squarely the question of whether an assignment {**6 Misc 3d at 889}is an essential element of a claim for first-party no-fault benefits, and whether the failure to include it is a waivable defect. For the reasons set forth below, the court holds that an assignment is an essential element of a claim for no-fault benefits, which cannot be waived.

In this action, the verified complaint alleges that Melvin Reyes was injured in a car accident on May 12, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under No-Fault Insurance Law § 5101 et seq. Plaintiff brings this action, as the assignee of Mr. Reyes, to recover $3,080 in first-party no-fault benefits. Plaintiff moves for summary judgment, and defendant opposes it, because of plaintiff’s failure to establish that it submitted an assignment of benefits to defendant with its notice of claim. Plaintiff contends that submission of an assignment of benefits is not part of its prima facie case and that any objections to the assignment are waived if not asserted in the defendant’s denial. Here, defendant [*2]concededly did not object in its denial to plaintiff’s failure to include an assignment in its proof of claim.

In making its argument, plaintiff relies on New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (8 AD3d 640 [2d Dept 2004]). That case would appear to support plaintiff’s position. There, the Appellate Division held that the insurance company’s failure to prove that it had mailed timely requests for verification of the assignments upon which the respondents’ claims were based prevented it from objecting to the claims “on the basis of lack of proof of the assignments.” (At 641; see also New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2d Dept 2004].) Recently, citing New York Hosp. Med. Ctr., the Appellate Term for the 2d and 11th Judicial Districts reversed a trial court which had dismissed a no-fault case because the plaintiff had submitted an assignment which did not designate an assignee (Diagnostic Rehab. Med. Serv. PC v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]). Specifically, the Appellate Term held (at 69) that the defendant insurer, “having failed to seek additional verification or allege any deficiency in the assignment in its denial of claim form, had waived any defenses with respect thereto.”

In its decision, the Appellate Term also overruled its own prior {**6 Misc 3d at 890}decision in A.B. Med. Servs. PLLC v Progressive Ins. (2003 NY Slip Op 50790[U], *1 [App Term, 2d & 11th Jud Dists 2003]), in which it had affirmed the denial of a plaintiff medical provider’s motion for summary judgment on the ground that the “purported assignment” did not bear the name of any assignee. Strikingly however, the Appellate Term did not disown its decision in A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]). In that case, decided three months after New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), the Appellate Term reversed the grant of a plaintiff’s motion for summary judgment finding, inter alia, that one of the plaintiffs had failed to prove its prima facie case because the record did not contain an assignment. The Appellate Term reached that result even though the decision does not indicate that the defendant asked for verification of the assignment or issued a timely denial on that basis. This court concludes that A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]) is still good law, both because the Appellate Term did not overrule it and because, for the reasons set forth below, it is consistent with governing precedent. Applying that decision to this case, this court must deny plaintiff’s motion for summary judgment since it failed to prove that it included an assignment in its notice of claim.

The continued validity of A.B. Med. Servs. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U]), notwithstanding the Appellate Division decision in New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), is entirely consistent with the policies and principles stated in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). In that case, the Court of Appeals held that a defense of noncoverage cannot be waived in a no-fault case, even if the insurer fails to raise it in its denial. That decision extended [*3]to the no-fault context the Court’s holdings in Zappone v Home Ins. Co. (55 NY2d 131 [1982]) and Schiff Assoc. v Flack (51 NY2d 692 [1980]) that the defense of noncoverage could not be waived in cases concerning liability policies and professional indemnity insurance. The underlying theory of all of these cases is that if the insurer is not liable to the alleged insured under the contract of insurance, then contractual liability cannot be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The Court of Appeals explained that, if for example, the insurance company had no contract of insurance at all with the alleged insured, or had no contract with its insured concerning the vehicle in the accident, then “there simply is no insurance at all and, therefore, no obligation to disclaim or deny.” (Zappone v Home Ins. Co., 55 NY2d 131, 139 [1982].){**6 Misc 3d at 891}

An assignment essentially extends the rights created by contract from the assignor to the assignee, so the assignee can sue on behalf of its assignor only if it has a valid assignment. Accordingly, the insurance company has no contractual obligation to the assignee in the absence of a valid assignment. Consequently, if the absence of an assignment could be waived by the insurance company’s failure to raise it, then contractual liability between the insurance company and the assured’s assignee would be created by waiver. But that should not be permitted, just as the courts do not permit a contractual obligation between the insurance company and its alleged insured to be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). Therefore, when no assignment is tendered, the insurance company has no contractual obligation to the assignee, and its objections to the absence of the assignment cannot be waived.

In this case, there simply was no assignment. Plaintiff did not attach one to its moving papers or to its reply papers. Therefore, plaintiff has failed to establish that defendant has any contractual obligation to it, and the court cannot grant summary judgment in its favor.

Civil Court, Kings County

313390-03

Alice Fisher Rubin, J.

This no-fault action was brought to recover judgment in the amount of $2,517.00, and statutory legal fees and interest from May 2, 2000, for prescribed orthopedic devices provided by Ultimate Medical Supplies to Cedric Wright. Plaintiff provided bills to Defendant, Lancer Insurance Company (Lancer). Defendant denied payment claiming the defense of medical necessity. Plaintiff commenced this action against Lancer by service of a summons and complaint.

A trial was held before this Court on June 8, 2004.and June 9, 2004. At the conclusion of the trial, both parties were advised that the Court would accept post trial memorandums of law to be submitted on or before June 25, 2004. Defendant submitted a timely memorandum; plaintiff did not submit.

Plaintiff’s case consisted of the testimony of Peter Tiflinsky, principal of plaintiff Ultimate Medical Supplies, Inc., and the admission of five exhibits, including three bills, a medical supply invoice, a delivery receipt for a TENS Unit and the comprehensive report of Dr. Opam, together with his letter of May 23, 2001.

Defendant’s case consisted of the testimony of Dr. Francine Moshkovski (the doctor who performed the independent medical examinations and the peer review) and four exhibits, including a delay letter, an NF-10 denial, a subpoena with an affidavit of service upon the claimant/assigner, and a copy of Dr. Moshkovski’ s peer review report.

Defendant’s post-trial memorandum listed five issues involved in this matter. Those issues include: Receipt of Dr. Moshkovski ‘s testimony; the failure of the Plaintiff to prove a valid assignment; the failure of the Plaintiff to prove any evidence as to the necessity for a LSO; the contested evidence as to the medical necessity; and the evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

The Court will address each of the issues in the order listed.

1. Dr. Francine Moshkovski’s Testimony

It is well established law that one testifying as an expert “should be possessed of [*2]the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” Marrot v Ward, 48 NY2d 455, 459, 423 NYS2d 645. Dr. Moshkovski testified that she was a graduate of a medical school, received post-graduate training in the field of physical medicine and rehabilitation, and was qualified as a diplomat of the American Board of Physiatrists. She further testified that her medical speciality dealt with the treatment of muscular-skeletal and neuro injuries and conditions, and the relief of pain. She has practiced and taught in her field for 17 years. Furthermore, after stating her qualifications, the witness testified without objection.

It is also established law that the Trial Judge need not “certify” the witness as an expert. People v Gordon, 202 AD2d 166, 608 NYS2d 192, lv den 83 NY 911. It is the Court’s opinion that Dr. Moshkovski met the standards to qualify as an expert.

2. The Plaintiff’s Prima Facie Case

Defendant, in its closing statement and in its post-trial memorandum, argues that Plaintiff has not established a prima facie case. Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Advanced Medical Rehabilitation P.C. v Travelers Property Casualty Insurance Co. N.Y.L.J. March 25, 2004, p. 19, col. 3. The second element was stipulated to and is not an issue. Despite Defendant’s contention that there was no assignment, there was a concession made by Defendant during the testimony of Plaintiff witness, Peter Tiflinsky. Plaintiff had offered a delivery receipt into evidence (Plaintiff No.1). Mr. Tiflinsky testified that he witnessed the assignor, Cedric Wright, sign the document. Plaintiff moved the document into evidence. Defendant objected. Additional questions were asked of the witness. At the conclusion of the round of questions, Plaintiff offered the document into evidence again, stating: “I offer this document into evidence once again in so far as the witness testified that he observed the assignee signing this document.” (P. 16). Defendant asked “for what purpose?”: Plaintiff responded, “verifying his signature on the assignment we are standing to sue here today.” Defendant’s responded: “I have no problem with it going in as an assignment, your Honor.” At the time of trial, the Court ruled Plaintiff had met the requirements of establishing its prima facie case. Upon review of the transcript and the evidence, the Court stands by its ruling.

3. The failure of the Plaintiff to prove any evidence as to the necessity for a LSO .

It was stipulated that all bills were sent timely and a verification request was made timely and a narrative from the referring physician and a letter of medical necessity for a custom fitted LSO was submitted timely. The denials were based on the peer review ‘s lack of medical necessity.

Dr. Moshkovski testified that she can find no support in the medical reports furnished to her by the Plaintiff for a prescription for a Lumbosacaral support. However, Plaintiff’s evidence #

5, the report of Metropolitan Multi-Special Medical Center P.C., dated February 20.2001, p. 4. Indicates that a cervical pillow, lumbar support, massager, car seat and ice packs were prescribed. [*3]

Defendant’s post-trial memorandum indicates that Dr. Moshkovski’s Peer Review Evaluation indicated that the prescription was signed by Dr. Schwartz. There is no testimony from Dr. Moshkovski, (but there was mention of Dr. Schwartz in her Peer Review Report which was in evidence), or anyone else to determine who Dr. Schwartz is. Nonetheless, there is no question in the Court’s mind that Dr. Opam had recommended such a device and indicated in his report that such a device had been prescribed.

4. The contested evidence as to the medical necessity.

Dr. Moshkovski testified that based on her experience none of the prescribed durable medical equipment are necessary. She cited to no authority other than her own experience. More telling as to her bias was her response to Plaintiff’s question on cross-examination where she was asked: “I’ m asking you, isn’t it a fact that you took the tests that were in the report that worked for you and included them in your peer review and left out the ones that went against you?” Yes or no? (p. 75, L. 14-17)

Dr. Moshkovski’s response: “I’ll say yes” . (P. 15 L. 18)

It is clear to the Court that Dr. Moshkovski admitted to never prescribing any of the medical equipment, with the sole exception of ice packs, on no basis other than her own opinion. Such an opinion is biased against the prescribing doctor as to make the peer review a nullity and not credible.

5. The evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

Defendant argues in his post-trial memorandum that the Plaintiff stands in the shoes of the assignor, Cedric Wright. Plaintiff’s only benefits are based upon the rights that have been assigned to him by Mr. Wright. It is Defendant’s contention that since there is no proof of an assignment; therefore the Plaintiff has no standing to sue and the case should be dismissed. The court has ruled, both at trial and in this decision, that Plaintiff has met the burden of establishing a prima facie case. Therefore, the motion to dismiss is denied.

A subpoena was served upon Mr. Wright, which was ignored. Defendant, therefore, wishes the court to consider Mr. Wright a missing witness and infer that the testimony of Mr. Wright would not support the contentions of Plaintiff. The burden is on the party who seeks the benefit of the inference to establish that there is a witness who can give material evidence, Fremont v Metropolitan S. R. Co., 83 App Div 414, 82 NYS 307. Also, the party seeking the charge has the burden to notify the court as soon as practicable, and to establish that there is an uncalled witness believed to have knowledge on a material issue; that the witness can be expected to testify favorably to the opposing party, and that such party has not called the witness, Papa v New York, 194 AD 527, 598 NYS2d 558. Other than moving the subpoena into evidence without objection, there was no offer of proof to satisfy the requirement of notification to the Court about this witness. The other requirements of a missing witness charge, had this been a jury trial were also unsatisfied since there was no discussion on the record, other than the offering of the subpoena into evidence and the arguments made in the post-trial memorandum. Therefore, the Court declines to infer negative testimony would be elicited had Mr. Wright appeared. [*4]

Based on all of the foregoing items, the Court hereby directs the clerk of the court to enter judgement in favor of the Plaintiff and against Defendant, in the amount of $2,517.00, plus statutory legal fees and interest from May 2, 2000.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

December 17, 2004

_______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

Civil Court of the City of New York, Kings County

115723/04

Bruce Newborough, P.C., Brooklyn, New York for the plaintiff; McDonell & Adels, P.C. (Lisa E. Hechler), Garden City, New York for the defendant

Ellen Gesmer, J.

The verified complaint alleges that Arthur Scott was injured in a car accident on March 20, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under the No-Fault Insurance Law §5101 et seq. Plaintiff brings this action, as the assignee of Mr. Scott, to recover $1,340.30 in first party no-fault benefits. Defendant moves for summary judgment on the grounds that plaintiff engaged in a pattern of fraudulent billing practices and has failed to verify its billing for the instant claim. Plaintiff failed to oppose defendant’s motion. Therefore the Court will decide this matter solely on defendant’s moving papers and annexed documentation.

Defendant maintains that it is issued a timely denial because it received the bill at issue on June 16, 2003, issued a request for additional verification on June 27, 2003 and, after [*2]receiving no response from plaintiff, ultimately denied plaintiff’s claim on December 1, 2003. However, defendant’s moving papers do not include any proof of mailing of its request for verification (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). The affidavit of Ms. Dawn Madalone an Investigator employed by defendant’s Special Investigations Unit does not establish mailing because Ms. Madalone does not state in her affidavit that she has personal knowledge that the requests were sent to plaintiff (Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2d Dept 1996]). Nor does the Madalone affidavit create a presumption of mailing because it does not describe the standard operating procedures plaintiff uses to ensure that its verification requests are mailed (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). Consequently, having failed to establish that it mailed the requests for verification, defendant has failed to show that its denial of plaintiff’s claim was timely. The fraud which defendant is claiming as a defense to payment of this claim is fraud by the plaintiff medical provider. Although an untimely denial permits a defendant to assert a defense of fraud by the assignor, a claim of fraud by the assignee must be asserted in a timely denial (Melbourne Medical, P.C. v Utica Mutual Ins. Co., 4 Misc 3d 92 [2d Dept 2004]). Consequently, defendant’s motion for summary judgment must be denied.

Even if this claim were not barred by the late denial, defendant would not be entitled to summary judgment in its favor. In order to satisfy its burden on a motion for summary judgment, defendant “must show that the accident was a deliberate event or a part of an insurance fraud scheme.” (A.M. Med., P.C. v NY Cent. Mut. Ins. Co., 2004 NY Slip Op 50298U, *2 [Civil Ct, Queens County 2004]). This is higher than the standard when the defendant is merely opposing a plaintiff’s motion for summary judgment based on a fraud defense; in that event, defendant must submit “facts, in admissible form and with the requisite particularity, to create triable issues of fraud” (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004), such as an affidavit by a person with personal knowledge of the facts at issue (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004].

In support of its contention, defendant submits the transcript of the Examination Under Oath (EUO) of Dr. Patricia Garel, in which Dr. Garel states that she never provided psychological services to any of plaintiff’s patients although plaintiff submitted claims to defendant seeking reimbursement for psychological services allegedly rendered by her. However, the transcript of Dr. Garel’s EUO is not executed in accordance with CPLR 3116. CPLR 3116[a] provides that the transcript must be submitted to the witness so that the witness can read it and make any changes to it that are desired. If the witness then signs the transcript under oath, the transcript may be utilized. “Unsigned depositions do not suffice as proof requisite to defeat a motion for summary judgment.” (Pathmark Graphics Inc. v J.M. Fields, Inc., 53 AD2d 531 [1st Dept 1976]; see also Lo Cicero v Frisian, 150 AD2d 761 [2d Dept 1989]). This principle applies equally to an examination under oath taken by an insurance company. (Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 263 [2d Dept 1984]).

In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the [*3]party proffering the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed (see Siegel, 1993 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Pocket Part, at 94). A party seeking to use an unsigned deposition transcript must show that the witness was given the opportunity that CPLR 3116 (a) provides to the witness to make sure that the transcript is correct in form and substance. This procedure is necessary to insure that the proponent of the transcript is not relying on an inaccurate transcript (Palumbo v Innovative Communications Concepts, 175 Misc 2d 156, 157-158 [Sup Ct, NY 1997]). In this case, defendant annexes a copy of a letter dated October 21, 2003 addressed to Dr. Garel’s attorneys requesting that she sign the transcript and have it notarized, but defendant does not proffer an affidavit of a person with personal knowledge that this letter was in fact mailed. Consequently, defendant has not shown either that the transcript was properly executed or that the opportunity that CPLR 3116[a] affords the depondent for execution has passed. Therefore, the Court cannot consider the EUO transcript of Dr. Garel because it does not constitute evidence in admissible form under CPLR 3212 (See Reilly v Newireen Assocs., 303 AD2d 214, 220 n.2 [1st Dept 2003]).

In further support of its fraud claim, defendant again relies on the affidavit of Ms. Madalone who states in her affidavit that defendant properly denied plaintiff’s claim based on overwhelming indica of fraud. Ms. Madalone states that her knowledge of the case comes from:

1. Her “review of the file which she maintained, ” 2. Her investigation into plaintiff’s billing practices; 3. A New York State Insurance Department press release concerning the indictment of Dr. Michael Ferrato, Ph.D of Ferrato Psychological Services, P.C. (FPS) 4. Claim forms submitted to defendant by PSG and FPS for various unidentified patients other than plaintiff’s assignor; 5. The transcripts of EUOs of Darcy Greenidge and Allan Gaskin; and 6. The Examination Before Trial (EBT) transcripts of Henry Johnson and Aida Ellis The Court cannot rely on any conclusions reached by Ms. Madalone which are based on unidentified documents in defendant’s investigative file since those documents are not before the court in admissible form (see CPLR 3212[b]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The Court also cannot rely on the press release concerning the indictment of Dr. Ferrato since it is not in admissible form. Even if it were in admissible form, Ms. Madalone has failed to establish the relevancy of the indictment to this case since Dr. Ferrato did not treat the assignor in this case. Defendant also annexes to its moving papers reams of redacted documents which the Madalone affidavit contends proves that FPS submitted bills to defendant for the exact same services as those claimed by PSG for the same patient just days apart from the date when PSG claimed to have rendered services. However, since the name of the policy holder, the patient’s name, gender and address are redacted from the documents, there is no way for the Court to make an independent determination as to whether the documents in fact support defendant’s contention. More importantly, the documents are not in admissible form since they are not adequately identified (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004). Therefore, the Court cannot rely [*4]on Ms. Madalone’s conclusion that these documents prove fraud.

Finally, like the transcript of the EUO of Dr. Garel, the transcripts of the EUOs and EBTs of Ms. Greenidge, Mr. Gaskin, Mr. Johnson and Ms. Ellis cannot be considered on a motion for summary judgment, since they are not executed and the defendant has failed to show that the deponents were given an opportunity to execute the transcripts.

Consequently, all of the documents relied on by Ms. Madalone cannot be considered by this Court in support of defendant’s motion for summary judgment because the documents are not in admissible form. Therefore, defendant failed to satisfy its burden to submit facts in admissible form and with the requisite particularity to establish fraud. Accordingly, defendant’s motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

Dated: December 8, 2004

ELLEN GESMER

Judge, Civil Court

Civil Court, Kings County

58916/04

Alice Fisher Rubin, J.

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

Defendant moves for an order granting disqualification of the plaintiff’s law firm, Israel, Israel & Purdy, LLP, and/or for a hearing relating to the law firm’s representation of the plaintiff.

Plaintiff cross-moves for an order denying defendant’s motion and awarding plaintiff attorneys’ fees and sanction for defendant’s filing of a frivolous motion.

Defendant moves for the disqualification of plaintiff’s attorneys on the grounds that the law firm has established a joint business venture with various no-fault medical providers, and in violation of the Code of Professional Responsibility, DR5-102, codifies as 22 NYCRR Section 102. Defendant alleges that the plaintiff’s law firm has taken over all billing functions for said medical providers, prepares correspondence, submits no-fault bills and responds to demands for verification on behalf of said medical providers. Defendant also argues that as a result of the law firm’s role in taking over all billing functions for the medical providers, the firm would be required to testify and substantiate that the law firm itself maintains the medical provider’s records; that the payment for such bills has been demanded by the law firm; that no further request for verification information has been received by the law firm; and that no denial or payment has been made within the statutory period.

The defendant further argues that it is impermissible for the law firm to become a witness and an advocate in the same proceeding. In support of its argument, defendant cites the Code of Professional Responsibility, DR 5-102, codified as 22 NYCRR Section 1200.2.

In opposition to defendant’s motion, plaintiff argues that there is no violation of the statute, court rule or decisional authority, but only a perceived violation of DR5-102. Plaintiff also argues that disqualification may be required only when it is likely that the testimony to be given by the witness is necessary, and that the testimony would harm the plaintiff. Plaintiff further argues that the defendant has failed to allege that the testimony of any lawyer in plaintiff’s attorneys’ law firm would be prejudicial to its client. Plaintiff’s attorney also states that trial counsel will not appear as a witness, and that if necessary there are other attorneys at the firm that can be called as a witness.

After careful review of the moving papers, cross-motion and supporting documents, the court finds that the defendant’s motion is without merit. There is no basis for disqualification of the plaintiff’s law firm. The defendant has not demonstrated a violation of the Code of Professional Responsibility DR5-102. There has been no showing that the trial attorney would be called as a necessary witness in this action, or that such testimony would be adverse. In any event, the law firm may still continue to represent its client when one of its attorneys may be called as a witness. See, Talvy v. American Red Cross in Greater New York, 205 AD2d 143, 618 N.Y.S.2d 25 [1st Dept., 1994]. If there are other attorneys that can act as advocates for the client, then disqualification of the law firm as a whole would not be warranted.

Next, as a result of having to defend the motions for disqualifications, plaintiff’s attorneys have moved for an order imposing sanctions against defendant’s attorneys in the amount of $500.00, as well as ordering the defendant to pay an appropriate sum to the Clients’ Security Fund, as punishment for the filing of a frivolous motion. The court takes judicial notice

of the fact that the defendant law firm has made identical motions in other counties, as well as this county, and has not prevailed on its arguments that the plaintiff’s law firm should be [*2]disqualified. In fact, there has been a recent ruling in this County, by the Hon. Manuel Mendez on the exact same issue in NYC Medical & Neurodiagnostic, P.C. v. Republic Western Ins. Co., N.Y.L.J., 11/26/04, p.22, c. 3. Judge Mendez found no basis to disqualify the plaintiff’s law firm.

The court finds that imposition of sanctions is warranted on the basis that the motions, are redundant, abusive and frivolous. The motions were made in other counties and the courts’ decisions were in favor of the plaintiff’s law firm, holding that disqualification of the law firm was not warranted under DR5-102.

Accordingly, defendant’s motion is hereby denied in its entirety, and plaintiff’s cross-motion is hereby granted. The defendant is hereby directed to pay $500.00 to plaintiff’s counsel, as sanctions to deter such frivolous motion practice in the future.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: November 29, 2004

Brooklyn, New York 11201

______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

Civil Court of the City of New York, Kings County

323338/03

Sylvia Hinds-Radix, J.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, pursuant to Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiffs moved for summary judgment on their claims in the amount of $14,628.06, on the ground that defendant failed to pay or to deny their claims within the statutory 30-day period as required by Insurance Law section 5106 [a] ( Amaze Med. Supply Inc.v. Eagle Ins. Co., NYLJ, Dec. 29, 2003, at 21 Col 1 [App Term, 2d &11th Jud Dists]).

1. SUMMARY JUDGMENT STANDARD

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law, tending admissible evidence to eliminate any material issues of fact from the case ( Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Torterello v. Carlin, 260 AD2d 201 [1st Dept. 1999]). The burden of production as well as the burden of persuasion always rests on the proponent of the motion (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).

If the moving party satisfies those standards, the burden shifts to the opponent to rebut [*2]that prima facie showing by presenting evidence in admissible form establishing the existence of triable issues of fact ( see, CPLR 3212, subd [b]; Zuckerman v. City of New York, 49, NY2d 557 [1980]; Davenport v. County of Nassau, 279, AD2d 497 [2001]; Pragano v. Kingsburg, 182 AD2d 270 [2nd Dept.1992]; Kaufman v. Silver, 90 NY2d 204, 208 [1997]). It is well settled that Summary judgment should be denied if there is any doubt as to the existence of a triable issue of fact ( Freese v. Schwartz, 203 AD2d 513 [2nd Dept. 1984]).

When deciding a motion for summary judgment, the court must review the evidence in the light most favorable to the non-moving party, and must give that party all of the reasonable inferences that can be drawn from the evidence ( Louniakov v. M.R.O.R. Realty Corp., 282 AD2d 657 [2nd Dept. 2001]; SSBSS Realty Corp. v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-585 [1st Dept. 1998]).

11. COVERAGE OF MEDICAL EXPENSES PURSUANT TO INSURANCE LAW 5106 (a)

Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, within (30) thirty days after a claimant submits proof of the facts and the amount of loss sustained, an insurer is required to either pay or deny a claim for insurance coverage of medical expenses arising from a motor vehicle accident (see, 11 NYCRR § 65.15 (g) (3); Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195, 200 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11, 16 [2nd Dept. 1999]; New York Med. Center of Queens v. Country-Wide Ins. Co., 295 AD2d 583 [2nd Dept. 2002]).

The 30 day period may be extended by a request for verification pursuant to 11NYCRR

65.15 (d) (1) (2). (See, New York Hosp. Med. Ctr. of Queens v. Country Wide Ins. Co., 295 AD2d 584 [2nd Dept. 2002]; Presbyterian Hosp. In the City New York v. Maryland Cas. Co., 90 NY2d 279 [1997]).

If the requested verification has not been supplied to the insurer within 30 calendar days, after the original request, the insurer shall issue a follow-up request within 10 calendar days of the insured failure to respond. See, 11 NYCRR 65.15 (e) (2), now 15 days 11NYCRR 65-3.5 (b). S&M Supply v. Allstate Insurance Co., 2003 NY SLIP Op 51191 [U] [App Term, 2d & 11thJud Dists]. “An insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . . “(New York Hosp. Med. Ctr. Of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Glassman D.C., PC v. State Farm Mut. Auto. Ins. Co., 192 Misc2d 264, 265 [App Term, 2nd & 11 Jud Dists. 2002]).

If the additional verification 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 (see, 11 NYCRR 65.15 [d] [3]).

The only exception to the 30 day rule is where a carrier’s untimely denial is based upon the defense of lack of coverage, or a medical condition for which the patient was treated was not “related to the accident” (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). To withstand a motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish “the fact” or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). [*3]

Failure to pay or deny a claim within the 30- day period requirement, absent a request for additional verification, renders benefits “overdue,” and precludes the insurer from disclaiming liability based on a breach of a policy condition or a statutory exclusion defense (St. Clare’s Hosp. v. Allicity Ins. Co., 201 AD2d 720 [2nd Dept. 1994]). All overdue payments bear interest at a rate of 2% per month, and the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue (see, Insurance Law 5106 (a); Presbyterian Hosp. in the City of New York v. Maryland Cas. Co., 90 NY2d 274 [1997]).

III. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

In support of its motion for summary judgment in this action, plaintiffs submitted the affidavit of David Safir, who states in his affidavit that he is the billing manager for the plaintiffs. Mr. Safir avers that he personally mailed all of the claim forms for no-fault medical services to the defendant, and defendant failed to pay or deny the claims within thirty days of receipt of the claims.

A review of plaintiffs’ motion papers indicates that plaintiffs established their prima facie entitlement to judgment by submitting proof that the statutory claim forms were mailed and received, and that defendant did not pay or deny the claims within the prescribed statutory 30-day period (Amaze Med. Supply Inc., v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2004]). The burden then shifted to the defendant to demonstrate the existence of a triable issue of fact requiring a trial on the action ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; St. Luke’s Roosevelt Hosp., v. American Tr. Ins. Co., 274 AD2d 511 [2nd Dept. 2000]).

IV. DEFENDANT’S OPPOSITION

Defendant, in its opposition to plaintiffs’ motion, admits to receipt of plaintiffs’ claims but contends that it denied the claims based on multiple grounds of (1) failure of plaintiffs’ assignor to appear for Scheduled Independent Medical Examinations (2) fees for medical supplies purchased were excessive as per the Workers’ Compensation Schedule (3) injury causation and (4) medical necessity.

(a) Failure to Appear for Scheduled Independent Medical Examinations

Defendant alleges that plaintiffs’ assignor violated a policy condition of the insurance policy by failing to appear for scheduled independent medical examinations (IMEs), thus precluding any recovery of benefits thereunder. In support of its allegation, defendant relies on the affidavit of Dan Ross, an employee of Alliance Health Medical, P.C., which is an outside entity that provides services for the defendant.

Mr. Ross states in his affidavit that his review of the file, and records pertinent to plaintiffs’ assignor, revealed that, defendant forwarded IME scheduling letters dated June 10, 2003 to plaintiffs’ assignor, requesting her to attend IMEs scheduled for June 26, 2003, and June 30, 2003. Mr. Ross further states that on July 2, 2003, Alliance Health Medical notified the defendant, that plaintiffs’ assignor failed to appear for the scheduled IMEs. In its opposition papers, defendant attached two copies of IME letters addressed to plaintiffs’ assignor, requesting the assignor to attend IME’s scheduled for June 26, 2003 and June 30, 2003. The letters were each dated June 10, 2003.

This court finds that defendant fail to comply with the follow-up procedures and timetable for verification set out in the governing regulations of 11NYCRR 65-3.5 (b), by [*4]following up with an additional request for verification, or by notifying plaintiffs’ assignor of her right to follow up procedures and timetable for verifications ( S&M Supply v. Allstate Insurance Co., 2003 NY SLIP Op 51191 [U] [App Term, 2d & 11thJud Dists]; Presbyterian Hosp. in the City of New York v. Aetna Cas,. & Sur. Co., 233 AD2d 432; Metro Med. Diagnostics v. Lumbermens Ins. Co., 189 Misc2d 597 (2001) [App Term 2d and 11th Jud Dists]).

Furthermore, no probative evidence was submitted by the defendant to establish that the IME letters were ever sent to plaintiff’s assignor. Mr. Ross states that a review of the file and records reveal that defendant forwarded IME request letters to plaintiff’s assignor, without averring that he mailed the request himself. He did not state in his affidavit that he had personal knowledge that the letters were mailed to plaintiffs’ assignor ( Rue v Stokes, 191 AD2d 245 [1993]; LI First Aid Medical Supply Inc., v. Progressive Cas Inc. Co., 196 Misc2d 258, nor has he created a presumption of mailing by relying on defendant’s business records or by describing the standard office practice or procedure used by the defendant to ensure that its requests are properly mailed ( see, CPLR section 4518 (a); Residential Holding Corp., v. Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept. 2001]).

By submitting copies of letters addressed to plaintiffs’ assignor without an affidavit from someone with first hand knowledge attesting how, when, or by whom the letters were mailed, does not in itself support a presumption that the letters were mailed, and received by plaintiffs’ assignor ( American Home Assur. Co., v. Choudary, 255 AD2d 346 [2nd Dept. 1998]; Residential Holding Co., v. Scottsdale Ins Co., 286 AD2d 679, 680 [2nd Dept. 2001]; Presbyterian Hosp. in the City of New York , v. Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept. 1996]). Consequently, the affidavit of Mr. Ross was insufficient to raise a triable issue of fact as to whether the requests for independent medical examinations were timely sent to plaintiffs’ assignor.

(b) Fees for Medical Supplies Excessive as per the Workers’ Compensation Law Fee Schedule

The defendant alleges that the fees sought by plaintiffs for medical supplies purchased for their assignor, exceeded those permitted by Workers’ Compensation Law Fee Schedule. It is well settled that, based on a timely denial, an insurer is entitled to interpose the defense that certain charges were not in conformity with the charges permissible under the workers’ compensation fee schedule (Park Health Ctr., v. Prudential Prop & Cas Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]). Insurance regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1), provides:

“For medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.

This section provides essentially a fee schedule for equipment provided by a medical provider or a medical equipment supplier. In the Instant action, defendant failed to submit evidentiary proof

to establish that the benefits sought for medical supplies were not in conformity with the charges permissible under the workers compensation fee schedule law (Kings Medical Supply v. Travelers Property Casualty Corp., 756 NYS2d 385 [2003]; Abraham v. County Wide Ins. Co., [*5]NYLJ, Feb. 2, 2004 [App Term, 2d &11th Jud Dists]).

Furthermore, since defendant failed to timely deny plaintiffs claim or to seek additional verification of the claims within thirty days of it receipt of the claims, defendant is precluded from raising the defense of excessive fees in its opposition to plaintiffs’ motion for summary judgment (Mt. Sinai v. Triboro Coach, 263 AD2d 11 [2nd Dept. 1999]).

( c) Injury Causation

Defendant argues that there is no casual relationship between the accident and the injury alleged by plaintiffs’ assignor. To support its argument, defendant submitted an unsworn low impact “Automotive Engineering Report”. Defendant argues that the low impact analysis “Automotive Engineering report” concluded that plaintiffs assignor’s treatment was not related to the accident.

Although, defendant is not precluded from asserting the defense that the alleged injuries were not casually related to the accident despite an untimely denial of the claims (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11, 16 [2nd Dept. 1999]), this court finds that the unsworn “Automotive Engineering Report” lacks evidentiary value and does not constitute competent proof in admissible form, and cannot be considered in opposition to plaintiffs’ motion for summary judgment (Dotez v. Allstate Ins. Co., [App Term, 9th & 10th Jud Dists.]). Additionally, defendant failed to present a sworn statement from someone with knowledge of the facts or with appropriate expertise to render an opinion (Mt. Sinai Hospital v. Triboro Coach Inc., 263 AD2d 11 [2nd Dept. 1999]).

(d) Medical Necessity

Defendant remaining argument is that the medical treatments rendered to plaintiffs’ assignor were not medically necessary. Lack of medical necessity is a valid defense to an action to recover no fault benefits if stated in a timely denial (Presbyterian Hosp. in the City of New York v. Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept. 1996]; Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). Since defendant failed to raise the defense of medical necessity within 30 days of receipt of the plaintiffs’ claims, defendant is precluded from interposing this defense to the motion for summary judgment (New York Presbyterian Hosp., v. Empire Ins., 286, AD2d 322 [2nd Dept. 2001]). Despite the use of a multiple defenses, the defendant cannot prevail if the defenses are not raised within the statutory prescribed period.

V. CONCLUSION

Accordingly, plaintiffs’ motion for summary judgment is hereby granted in its entirety. Judgment shall be entered in favor of plaintiffs in the amount of $14,628.06, together with appropriate statutory interest and attorneys’ fees.

The court did not consider defendant’s amended affirmation in opposition in rendering its decision and order, since the amended papers were not timely served upon the plaintiffs.

This constitutes the decision and order of this court.

Dated: November 10, 2004.

Brooklyn, New York

______________________________ [*6]

SYLVIA HINDS-RADIX

J.C.C.

[*1]

Civil Court of the City of New York, Kings County, November 10, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Carton & Eberz, P.C. (Steven L. Barry of counsel), for defendant. Baker, Barshay & Neuwirth, LLP (Gil McLean of counsel), for plaintiff.

{**6 Misc 3d at 275} OPINION OF THE COURT

Manuel J. Mendez, J.

{**6 Misc 3d at 276}Defendant moves for an order disqualifying the firm of Baker, Barshay & Neuwirth, LLP from continuing to represent the plaintiff in this action. Defendant alleges that [*2]the firm is in violation of Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21) and must be disqualified from representing the plaintiff because one of its members ought to be called as a witness in the proceeding.

Facts

Plaintiff, a medical services provider, provides medical services to individuals and bills the insurance carriers under the state No-Fault Law. Following rendition of the services, plaintiff prepares and generates a bill which is subsequently mailed by the firm to the defendant insurer. The bills are mailed by a “mailroom employee” and are accompanied by a letter, on the firm’s letterhead which states the following:

“Please be advised that this office has been retained by the above referenced medical provider concerning the attached claim. We hereby submit herewith the bill for payment and the claimant’s application for No-Fault benefits (NF-2) as applicable. Accordingly, please forward all future correspondence to our attention.

“Pursuant to New York State Insurance Law, you are required to pay this bill within 30 days of receipt. Please make this payment payable to the above referenced provider, c/o this office.

“All correspondence including payment, EOB’s, verification requests, etc. must be mailed directly to this office. Failure to do so may result in unnecessary litigation.” (Emphasis added.)

The letter is unsigned.

Defendant maintains that the firm engages in the crucial activities of preparing the mailing, effectuating the mailing, maintaining records of the mailing, maintaining records and requests for verification and all other essential facets of “processing” the claim. The only witnesses who can offer testimony sufficient to establish a prima facie case in this matter are from the firm.

The firm counters that the fact that a nonattorney member may be called to testify on plaintiff’s behalf is not a violation of the disciplinary rules disqualifying it from representing plaintiff.

Legal Analysis

DR 5-102, codified as 22 NYCRR 1200.21, reads as follows:{**6 Misc 3d at 277}

“(a) A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, [*3]except that the lawyer may act as an advocate and also testify:

“(1) If the testimony will relate solely to an uncontested issue.

“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer’s firm to the client.

“(4) As to any matter, if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case.

“(b) Neither a lawyer nor the lawyer’s firm shall accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or another lawyer in the lawyer’s firm may be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client.

“(c) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, the lawyer shall not serve as an advocate on issues of fact before the tribunal, except that the lawyer may continue as an advocate on issues of fact and may testify in the circumstances enumerated in paragraphs (a)(1) through (4) of this section.

“(d) If after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm may be called as a witness on a significant issue other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw {**6 Misc 3d at 278}acting as an advocate before the tribunal.” (Emphasis added.)

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party’s law firm, at its adversary’s instance should be disqualified during litigation. Courts must consider such factors as the party’s valued right to choose its own counsel, and the fairness and effect in the particular factual setting granting disqualification or continuing representation (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]). Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (J. P. Foley & Co. v Vanderbilt, 523 F2d 1357 [2d Cir 1975]), and where the party seeking disqualification clearly shows that the opposing counsel’s projected testimony will be adverse to the client (Toren v Anderson, Kill & Olick, 185 Misc 2d 23 [2000]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra; Broadwhite Assoc. v Truong, 237 [*4]AD2d 162 [1st Dept 1997]).

Courts must apply the factors enumerated in the disciplinary rule on a case-by-case basis to determine if disqualification is warranted. Thus, courts have denied disqualification when an attorney’s projected testimony was not shown to be “sufficiently” adverse to the factual assertions or account of events offered on behalf of the client (Freeman v Kulicke & Soffa Indus., Inc., 449 F Supp 974, 977 [1978], affd 591 F2d 1334 [3d Cir 1979]; Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717 [2d Dept 1983]). Courts have granted disqualification when a member of the law firm representing the defendant will be called to testify at trial concerning the timely rendering of proof of loss and evidence will be offered in opposition to that testimony (Solomon v New York Prop. Ins. Underwriting Assn., 118 AD2d 695 [1986]); when the attorney may be called as a witness by the petitioner and her testimony “may be” prejudicial to her client (Matter of Stober v Gaba & Stober, 259 AD2d 554, 554-555 [2d Dept 1999]); and in an action to recover a real estate commission when plaintiff’s counsel would likely be called to testify with respect to his revival of a contract which was central to plaintiff’s theory of recovery (Bridges v Alcan Constr. Corp., 134 AD2d 316 [2d Dept 1987]).

In each of these cases, the Appellate Division has found the trial court’s decision not to be an abuse of discretion warranting reversal. In such situations, the court’s function is to take such action {**6 Misc 3d at 279}as is necessary to insure the proper representation of the parties and fairness in the conduct of the litigation (Solomon v New York Prop. Ins. Underwriting Assn., supra; Renault, Inc. v Auto Imports, 19 AD2d 814 [1963]), and to avoid placing the attorney in the awkward position of testifying on his client’s behalf and arguing the credibility of his own testimony at trial (Skiff-Murray v Murray, 3 AD3d 610 [3d Dept 2004]).

However, a law firm may continue representing a client even if one of its attorneys ought to be called as a witness (Talvy v American Red Cross in Greater N.Y., 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]). There is nothing in defendant’s moving papers to identify which of the attorneys of the firm would be called to testify or to support the conclusion that any attorney of the firm ought to be called to testify. If such conclusion were to be supported and an attorney identified, that alone would not warrant the court’s granting disqualification. There are other attorneys in the firm that can act as advocates and whose testimony would not be necessary, precluding disqualification of the firm (Matter of Owen & Mandolfo, Inc. v Davidoff of Geneva, Inc., 197 AD2d 370 [1993]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]; Mulhern v Calder, 196 Misc 2d 818 [2003]).

The moving papers make no reference to an attorney of the firm testifying. They only refer to the testimony of an “employee” of the firm whose testimony would be necessary in establishing the elements of plaintiff’s prima facie case.{**6 Misc 3d at 280} This firm employee will testify consistent with plaintiff’s position, not contrary to it (see Toren v Anderson, Kill & Olick, supra; S & S Hotel Ventures Ltd. [*5]Partnership v 777 S. H. Corp., supra; Broadwhite Assoc. v Truong, supra).

Furthermore, a strict reading of DR 5-102 shows that the rule refers to lawyers and not to “lawyers, their agents, servants, or employees.” From this, we may infer that the disqualification rules governing lawyers do not apply to “nonlawyer” employees of a law firm (Mulhern v Calder, 196 Misc 2d at 823, supra).

Conclusion

A clerk employed by the law firm in its mailroom, in charge of the mailing of plaintiff’s bills and proof of claim, will not cause the law firm to be disqualified from representing the plaintiff simply because the clerk’s testimony is necessary in establishing the elements of plaintiff’s prima facie case.

Accordingly, defendant’s motion for an order disqualifying the law firm of Baker, Barshay & Neuwirth, LLP from representing the plaintiff is denied in every respect.

Civil Court of the City of New York, Kings County

317285/03

Eileen N. Nadelson, J.

This action was brought under the Regulations of the New York State Insurance Department, 11 NYCRR sec. 65-1.1 et seq., to recover first party benefits under New York’s No-Fault Insurance Law.

The two assignments that form the basis of this action involve two persons who were allegedly injured in the same motor vehicle accident. Plaintiff medical provider submitted a bill for the first assignor, Jimmy Cadet (Cadet) on March 7, 2003. This claim was denied on May 15, 2003, based on the assignor’s failure to establish proof of the claim pursuant to his Examination Under Oath (EUO). Plaintiff submitted a bill for the second assignor, Naika Gousse (Gousse) on March 4, 2003; this claim was denied on May 15, 2003, because the assignor failed to appear for her EUO.

Plaintiff has moved for summary judgment, asserting that the denials of benefits were not received within the statutorily mandated 30 days after receipt of the claims, 11 NYCRR sec. 65-3.5, 65-3.8(a).

The EUO upon which the denial of claim for Cadet was based was unsigned by the [*2]assignor and not notarized. While objections based on allegedly fraudulent accident claims survive an insurer’s failure to timely deny such claim, Cf. Central General Hospital v. Chubb Group of Ins. Cos., 90 NY2d 195, 659 N.Y.S. 2d 246 (1997), and thereby toll the 30-day statutory period, when opposing a motion for summary judgment, the defendant insurer must be able to raise triable issues of fact in admissible form. Bonetti v. Integron Nat. Ins. Co., 269 AD2d 413, 703 N.Y.S. 2d 217 (2d Dept. 2000). The EUO submitted by Defendant insurer in the instant action is not in a legally admissible form, being unsigned and unverified. Consequently, the court holds that unsigned and unverified Examinations Under Oath are insufficient to raise triable issues of fact so as to defeat a motion for summary judgment.

Section 65-3.5 of 11 NYCCR, the regulations promulgated pursuant to New York’s No Fault Law, states:

(A) Within 10 business days after receipt of the completed application for motor

vehicle no-fault benefits, the insurer shall forward to the parties required to

complete them, those prescribed verification forms it will require prior to pay-

ment of the initial claim.

(B) Subsequent to the receipt of one or more of the completed verification forms,

any additional verification shall be requested within 15 business days of receipt

of the prescribed verification forms.

In the instant case, an EUO was requested of Gousse within the ten business days after the claim was submitted, and it is uncontroverted that she did not appear on the scheduled date. However, the Regulations impose a burden on the insurer to follow-up with an additional request if the initial request for verification was incomplete or not complied with at all. In this instance, the insurer did not follow the procedures of 11 NYCRR sec. 65-3.5(B) in seeking a second date for the EUO when Gousse failed to attend the first scheduled examination. Therefore, the 30-day statutory period was not tolled because Defendant insurer failed to adhere to the provisions of the No-Fault Regulations by not attempting to schedule a second EUO.

Based on the foregoing, the court grants Plaintiff’s motion for summary judgment. Judgment for Plaintiff in the amount of $4460 plus statutory 2% per month interest and statutory 20 % attorney’s fees.

Dated: October 27, 2004

__________________________

EILEEN N. NADELSON, J.C.C.