[*1]

Civil Court of the City of New York, Kings County, October 25, 2004

APPEARANCES OF COUNSEL

Amos Weinberg for plaintiff. Bruno, Gerbino & Soriano, LLP (Robert J. Morgan of counsel), for defendant.

{**5 Misc 3d at 786} OPINION OF THE COURT

Eileen N. Nadelson, J.

This action arises pursuant to the provisions of New York’s No-Fault Insurance Law.

The assignments of benefits that provide the basis of this claim present two discrete issues to be decided by this court. The alleged accident occurred on March 18, 2003, when the car driven by the son of the insured collided with another car. The assignors are the son and his passenger; the insured himself was not in the car nor involved in the accident. The insured’s policy covers accidents occurring while the son is driving the vehicle.

The claims for first-party benefits were submitted by plaintiff medical provider in a timely fashion. After the claims were submitted, defendant insurer requested additional verification in the form of an examination under oath (EUO) from the driver assignor. The request for the EUO was sent to the driver and the attorney representing the driver in a separate action. The address used to send the request to the driver was incorrect, and the request was never received by this assignor, although it was received by his attorney. It is noted that defendant did have the driver’s correct address, but left a significant portion of the address off [*2]the envelope. The driver assignor did not appear for the EUO. The subsequent follow-up request was also mailed to the same erroneous address, and the driver did not appear for the rescheduled EUO.

Meanwhile, defendant conducted EUOs of the passenger assignor and the insured. The passenger stated that she was picked up by the driver around 8:00 a.m., which was their usual custom, and that the accident occurred shortly thereafter. She further stated that she was removed from the vehicle by the fire department’s EMS team when they arrived on the scene. The police also were summoned.

The insured stated that he and the driver live at the same address and work at the same facility. He said that on the morning{**5 Misc 3d at 787} in question he left for work at around 6:00 a.m., which was his customary practice. He further claimed that his son, according to his belief, usually leaves for work at 7:00 a.m., and arrives at work at around 7:30 a.m., but that he and his son do not work in the same area and he does not actually see his son arrive.

The insured said that he was called about the accident by the passenger, and arrived at the scene between 10:00 and 10:30 a.m., at which time he saw the passenger standing outside the car. He said he did not believe that she had been in the car.

The claims were ultimately denied by defendant insurer. The denial of benefits for the driver assignor’s treatment was dated August 8, 2003, the claim having been received on May 15, 2003; the denial of benefits for the passenger assignor’s treatment was dated August 20, 2003, the claim having been received on May 16, 2003.

Defendant stated that the denial of benefits for the driver assignor was based on his failing to attend scheduled examinations under oath, and the denial of benefits for the passenger assignor was based on defendant’s determination that the injuries complained of did not result from the alleged accident.

Plaintiff has moved for summary judgment, asserting that the denial of benefits for the driver assignor’s treatments was not received within the statutorily mandated 30 days after receipt of the claims (11 NYCRR 65-3.5, 65-3.8 [a]), and that the denial of benefits for the passenger assignor’s treatments is based on unsubstantiated hypotheses. Defendant maintains that its requests for verification of the claim tolled that statutory period pursuant to 11 NYCRR 65-3.5, and that the two conflicting EUOs of the passenger and the insured raise triable issues of fraud in presenting the claim.

The first issue required to be determined by this court is whether a request for an examination under oath to an injured party’s attorney is sufficient notification to the injured party under New York’s No-Fault Law and regulations? This is an issue of first impression under the regulations.

The regulations promulgated under New York’s No-Fault Law, appearing under part [*3]65 of title 11 of the New York Code, Rules and Regulations, prescribe the manner in which requests for verification must be made. However, the regulations only deal specifically with time limits for making requests and scheduling EUOs; only tangentially do they indicate how notice is to be sent.{**5 Misc 3d at 788}

11 NYCRR 65-3.5 (b) states that requests for verification “need not be made [in] any prescribed [manner] or . . . form.” Section 65-3.5 (e) states, in pertinent part, that the “insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses . . . .”

11 NYCRR 65-3.6 (b) states:

“[I]f any requested verifications [sic] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested . . . At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (Emphasis added.)

A legally valid basis for denying a first-party benefit claim would be the provider’s assignor failing to comply with requests for verification. (See generally, Lopedote v General Assur. Co., 4 Misc 3d 1001[A], 2004 NY Slip Op 50593[U] [Kings County 2004].) However, the sine qua non of any legal request for information is that the party required to provide such information be given adequate and appropriate notice. (See generally, BHNJ Realty Corp. v Rivera, 144 Misc 2d 241 [NY County 1989].)

Neither the No-Fault Insurance Law nor the regulations promulgated thereunder specify the manner in which a request or notice be given. Therefore, in deciding whether notice to an assignor’s attorney, who is not representing the medical provider claimant, is sufficient notice to the assignor of the request for verification, the court must look to other statutes’ notice requirements to insure that the mandates of due process are met.

Section 308 (2) of the CPLR, concerning service of process, states that if a person is not personally served, service may be effectuated by serving a person of suitable age and discretion at the dwelling, place of business or abode of the person to be served and mailing a copy of the pleadings to that person’s last known address. Service may also be perfected by affixing a copy of the pleadings to the door of the dwelling of the person to be served and mailing a copy of the pleadings to that address. These are dual requirements, and both serving the suitable person or affixing the papers and mailing the pleadings must be completed {**5 Misc 3d at 789}before service is deemed satisfied. If the pleadings are mailed to the wrong address, service is deemed incomplete. (Schurr v Fillebrown, 146 AD2d 623 [2d Dept 1989].) Further, under section 312-a of the CPLR, personal service may be effectuated by mail, with proof of mailing and [*4]acknowledgment of receipt. However, in all instances, the mailing must be made to the person’s correct last known address. (See generally, Zaretski v Tutunjian, 133 AD2d 928 [3d Dept 1987]; Smith Carpet v Walter Arnold, Inc., 94 AD2d 643 [1st Dept 1983].)

Similarly, service under the provisions of Real Property Actions and Proceedings Law § 735 specifies a dual requirement of both serving a person of suitable age and discretion or affixing the pleadings to the door of the subject premises and mailing a copy of the pleadings to the person to be served. The failure to comply with these requirements, even when the person being served admits receipt, is deemed to be fatal. (Palumbo v Clark’s Estate, 94 Misc 2d 1 [Bronx County 1978].)

According to the provisions of the No-Fault Law, requests for additional verification must be made to the injured party or that party’s assignee. (11 NYCRR 65-3.5 [b]; Inwood Hill Med. P.C. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [NY County 2004].) In the instant case, it is undisputed that plaintiff, the assignee, did not receive the request for verification, and so the tolling of the 30-day period must stand or fall on the appropriateness of the request to the injured assignor.

The no-fault regulations consistently state that requests are to be made to the injured party or the claimant. In the case at bar, the claimant provider was not notified of the request for an EUO, and the request to the injured party was mailed to the wrong address. The only time the regulations mention an attorney is when it requires a request for additional verification to be sent both to the applicant and his attorney. The court views this notice requirement for an additional verification as a dual requirement, as with service under the CPLR and RPAPL, meaning that the failure to notify the claimant in a proper manner negates the effect of the request. Because the notices were never sent to the driver assignor’s correct address, the court finds that defendant failed to make a legally valid request for verification within the time period prescribed by the regulations, and therefore the 30-day requirement was not tolled and the denial was untimely.

The court emphasizes that the attorney who received the request represents the assignor in his own personal action for damages, {**5 Misc 3d at 790}and does not represent the assignor with respect to plaintiff’s claim for first-party benefits. Therefore, since the representation involves separate claims and lawsuits, the court cannot assume that mailing requests to this lawyer is appropriate in this matter, since the assignor might retain different counsel for the claim under scrutiny. It has been held that mailing pleadings to a party’s attorney did not constitute valid service when there was no evidence that the party authorized the attorney to accept such pleadings. (Broman v Stern, 172 AD2d 475 [2d Dept 1991].)

The second issue to be decided by the court is whether a denial of first-party benefits under the No-Fault Law may be based on statements and suppositions made by a person who lacks personal knowledge of the situation.

Defendant denied the claim for the passenger’s treatments because of a discrepancy [*5]between the passenger’s statements under oath and the statements under oath of the insured. However, as the transcript clearly indicates, the insured had absolutely no personal knowledge of the facts, not having been on the scene when the driver started the vehicle nor at the scene of the alleged accident. His statements are conclusions he reached based on what he saw after the fact. The statements he made regarding what he viewed at the scene when he arrived are not inconsistent with the statements of the passenger.

Unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of an assignor’s fraud, and summary judgment should be granted if the medical provider evidences properly submitted claims. (A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d Dept 2003].) Defendant’s submission of the EUO of the insured who has no personal knowledge of the facts does not constitute evidentiary proof in admissible form. (S & M Supply, Inc. v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 2d Dept 2004].)

Based on the foregoing, the court grants plaintiff’s motion for summary judgment.

[*1]

Civil Court of the City of New York, Kings County, October 19, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for plaintiff. Jaffe & Nohaicki, New York City, for defendant.

{**5 Misc 3d at 768} OPINION OF THE COURT

Ann Elizabeth O’Shea, J.

This is an action to recover first-party no-fault benefits, attorney’s fees and costs pursuant to New York’s Insurance Law and no-fault regulations. The cause of action allegedly arose out of an automobile accident on June 24, 2002, in which Robert Nieves, plaintiff’s assignor, was injured. Plaintiff, a medical equipment supplier, allegedly provided Mr. Nieves with medical supplies for which it submitted a claim for $705 to defendant insurer. Defendant denied plaintiff’s claim on the ground that the supplies were not medically necessary. Plaintiff now moves for summary judgment, arguing that defendant’s denial was untimely and without any evidentiary support. Defendant, in opposition, asserts that plaintiff has not established its prima facie entitlement to summary judgment with admissible evidence, including evidence as to the documented cost of the supplies provided. For the following reasons, plaintiff’s motion is granted in all respects.

Under the No-Fault Insurance Law and regulations, a medical equipment supplier must submit a properly completed proof of claim^[FN1] to the insurer within 180 days after the supplies have [*2]been provided under the “old regulations” in effect prior to April 4, 2002 (11 NYCRR 65.12) or 45 days after the supplies have been provided under the “new regulations” in effect on April 4, 2002 and thereafter (11 NYCRR 65-1.1 [h]). The insurer then has 30 days from the date the claim is received to pay or deny the claim under both the old and new regulations (11 NYCRR 65.15 [g] [1] [i]; 65-3.8 [a] [1]). If the insurer has any objections to or questions about the claim, including, among other things, the necessity for the supplies provided, the amount of the claim, or the adequacy of the claim form,^[FN2] it may request that the claimant provide further information to verify the claim (11 NYCRR 65.15 [d] [1] [old regulations]; 11 NYCRR 65-3.5 [b] [new regulations]; see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *2 [App Term, 2d Dept 2003] [“a properly completed claim form, which suffices on its face to establish the particulars of the nature and extent of the injuries and (health benefits) received and contemplated . . {**5 Misc 3d at 769}. and the proof of the fact and amount of the loss sustained . . . is all that is necessary at the claim stage . . .” (internal quotation marks and citations omitted)]; see also Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986] [“to receive payment, (a claimant) need only file a ‘proof of claim’ (which) the insurers are obliged to honor . . . promptly or suffer the statutory penalties” (citations omitted)]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept 2003]). A request for verification must be made by the insurer within 10 business days after the claim has been received under the old regulations (11 NYCRR 65.15 [d] [1]) and within 15 business days under the new regulations (11 NYCRR 65-3.5 [b]). The 30-day clock in which to pay or deny the claim is then stopped until the requested information is provided by the claimant (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002]). An insurer who fails to pay or deny the claim—or seek verification of the particulars of the claim—within the applicable time periods is thereafter precluded from raising any defenses to the claim, other than lack of coverage or fraud (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; Central Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]). The Court of Appeals has explained the principles and policies that prompted the adoption of this comprehensive regulatory scheme for the resolution of no-fault claims:

“[T]he primary purpose underlying the No-Fault Law [is] to assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them . . . To implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations . . . are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays.”

(Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986] [citations omitted].)

Those principles and policies have also informed court decisions limiting the proof required by medical providers and the defenses available to insurers on motions for summary judgment{**5 Misc 3d at 770} and at trial. To establish a prima facie case, a plaintiff medical supplier must submit proof that it timely transmitted its claim for no-fault benefits, that the defendant insurer received the claim but failed to pay or validly deny the claim within the permissible 30 days or to request verification within the applicable 10 or 15 business days after it received the claim (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *2 [App Term, 2d Dept 2003] [“courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim”]; see also Ocean Diagnostic Imaging PC v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 2d Dept 2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d Dept 2003]). Once the plaintiff has established its prima facie case, the burden shifts to the defendant to come forward with admissible evidence refuting plaintiff’s evidence and demonstrating the existence of a material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

In support of its motion for summary judgment, plaintiff submitted a copy of its NF-3 proof of claim form, accompanied by an affidavit of its billing manager attesting on personal knowledge to the issuance of the claim, and a copy of defendant’s denial form (NF-10), indicating defendant received the claim on August 28, 2002, and denied it on November 21, 2002.^[FN3] In this case, the NF-10 denial form, which is admissible as an admission by defendant, is sufficient to establish plaintiff’s prima facie entitlement to summary judgment, i.e., that the claim was transmitted, that defendant received it, and that defendant failed to pay or deny the claim within 30 days of receipt^[FN4] (see A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc {**5 Misc 3d at 771}3d 136[A], 2004 NY Slip Op 50507[U] [2d Dept 2004]). Nothing more is required.^[FN5] [*3]

Defendant offers nothing in response to plaintiff’s motion other than a generic attorney’s affirmation in opposition and a generic memorandum of law with little but a passing connection to the claims in issue here. In any event, construing defendant’s opposition in the most favorable light possible, defendant fails to overcome plaintiff’s prima facie case for several reasons.

First, the denial is untimely, and, therefore, defendant is precluded from asserting any defense other than fraud or lack of coverage (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]).

Second, the stated reason for the denial in defendant’s NF-10 is that “an extended delay between the motor vehicle accident and the beginning of treatment suggest not medically necessary and raises issue of casualty [sic].” It is by now firmly established that the burden is on the insurer to prove that the medical services or supplies in question were medically unnecessary (see, e.g., A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003], and cases cited therein). In addition, a denial premised on lack of medical necessity must be supported by evidence such as an independent medical examination, peer review, or examination under oath “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701, *1 [App Term, 2d Dept 2003]; see also Rockaway Blvd. Med. P.C. v Travelers Prop. Cas. Corp., 2003 NY Slip Op 50842[U] [App Term, 2d & 11th Dists 2003]; see also 11 NYCRR 65-3.8 [b] [4]; Choicenet Chiropractic P.C. v Travelers Prop. Cas. Corp., 2003 NY Slip Op 50697[U] [App Term, 2d & 11th Jud Dists 2003]; Rockaway Blvd. Med. P.C. v Allstate Ins. Co., 2003 NY Slip Op 50681[U] [App Term, 2d & 11th Jud Dists 2003]). {**5 Misc 3d at 772}Defendant’s conclusory, unsupported statement in its denial form is wholly inadequate to defeat plaintiff’s motion for summary judgment.

Finally, to the extent defendant’s defense to the summary judgment motion is that plaintiff did not document the cost of the supplies provided as part of its claim, the defense is without merit. It is true that, under the regulations, no-fault benefits available for medical supplies are limited to 150% of their “documented cost” (see 11 NYCRR Appendix 17-C, part E [b] [1]). However, in this court’s view, “documented cost” is not an element of plaintiff’s prima facie case. As is the case with issues of medical necessity, any questions about the amount claimed for medical supplies can and should be asked through a request for verification and, if possible, resolved at the claim stage, not by a court on a motion for summary judgment or at trial. Defendant had the opportunity to ask plaintiff to document the costs of the supplies when it received the claim. Because defendant failed to do so within the time permitted by the regulations, defendant is precluded from raising it now as a defense to plaintiff’s summary judgment motion.^[FN6] [*4]

For the foregoing reasons, plaintiff’s motion is granted in all respects. Judgment shall be entered in favor of plaintiff for $705 plus statutory interest and attorney’s fees plus costs.

Footnotes

Footnote 1: Or “substantially equivalent written notice” (11 NYCRR 65-3.5 [a]).

Footnote 2: For example, lack of authentication or other defect in the assignment of benefits (see, e.g., Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U]; but see A.B. Med. Servs. PLLC v Highlands Ins. Co., NYLJ, May 27, 2003, at 21, col 3 [Civ Ct, NY County]).

Footnote 3: Also annexed to the moving papers is a copy of an unsworn “Letter of Medical Necessity” concerning the assignor. This document is not considered by the court as it is not in admissible form.

Footnote 4: The court notes that the mailing log, date stamped by the Postal Service, also submitted in support of plaintiff’s motion, standing alone without any accompanying affidavit made on personal knowledge that the proof of claim was transmitted in accordance with plaintiff’s regular business procedures, would not be sufficient, for summary judgment purposes, to establish that the claim was transmitted to defendant.

Footnote 5: The additional documents submitted by plaintiff—a receipt for medical equipment and an assignment of benefits form signed by the assignor; a prescription for the medical equipment; invoices from Collona Distributors, Inc.; a copy of a cancelled check to Collona Distributors, Inc. for the full amount of the invoices—were not required as part of plaintiff’s prima facie burden of proof on its summary judgment motion, although they may have been instructive as a response to a timely request for verification of the claim by defendant.

Footnote 6: To the extent this decision is at odds with King’s Med. Supply v Travelers Prop. Cas. Corp. (194 Misc 2d 667 [Civ Ct, Kings County 2003]), which was decided before the development of the Appellate Term case law, this court respectfully declines to follow it.

Supreme Court, Kings County

25595/03

Ira Harkavy, J.

defendant Country-Wide Insurance Company (Countrywide) moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiff Ketly Lavaud as Assignee of the Rights of Don N. Nixon a/k/a Donnon N. Nixon (plaintiff). Plaintiff cross-moves for an order awarding her summary judgment against Countrywide on her complaint.

The Underlying Accident

On November 13, 1995, plaintiff and non-party Martha Domfe (Ms. Domfe) were pedestrians crossing Caton Avenue, at its intersection with Flatbush Avenue, in Brooklyn. When they started crossing the street, Don N. Nixon (Mr. Nixon) was stopped for a red light at the intersection in a vehicle insured by Countrywide under a liability policy with limits of $10,000 per person/$20,000 [*2]per accident. Before plaintiff and Ms. Domfe finished crossing the street, the light turned green and Mr. Nixon proceeded toward the intersection and struck plaintiff and Ms. Domfe in the cross-walk. As a result of this accident, plaintiff sustained various injuries including a fractured patella and a torn lateral and medial meniscus.

The Domfe Action

On or about February 6, 1996, Ms. Domfe commenced an action against Mr. Nixon in Kings County Supreme Court. On September 4, 1996, Mr. Nixon appeared for an examination before trial and testified that his vehicle struck both plaintiff and Ms. Domfe and that he did not see these pedestrians before contact was made. In a letter dated October 21, 1996, Ms. Domfe demanded that Countrywide tender its full policy limits. In a letter dated January 23, 1997, Ms. Domfe’s counsel notified Countrywide that his client was prepared to settle the case for the policy limits and that he would consider Countrywide’s failure to accept this offer to be in bad faith. On February 14, 1997, Ms. Domfe filed a note of issue and certificate of readiness. In or about September, 1997, the Domfe action was settled for $9,500.00.

Plaintiff’s Action

By letter dated January 10, 1996, plaintiff’s attorney notified Countrywide of the accident. On May 22, 1996, plaintiff’s attorney provided Countrywide with a copy of the police report of the accident, as well as a medical report from the hospital that initially treated plaintiff for her injuries. On March 25, 1997, plaintiff provided Countrywide with authorizations for her MRI films and no-fault records.

On or about August 11, 1998 (11 months after the Domfe action was settled), plaintiff commenced an action against Mr. Nixon. In a letter dated August 13, 1998, plaintiff’s attorney notified Countrywide that his client was prepared to settle the action for $10,000. Plaintiff’s attorney attached various records to the letter including plaintiff’s emergency room record, two operative reports, as well as her employer’s wage verification report. Finally, plaintiff’s attorney stated:

“The offer to accept the sum of herein mentioned in full settlement of the above entitled action is made without prejudice and is to be deemed withdrawn if not accepted within ten (10) days from the date of this letter. In the event I do not receive a response from your office within said time period, and upon an excess verdict in favor of my client being rendered, your company may be held responsible for said excess as well as your insured by reason of the fact that you failed to proceed in good faith.”

In a letter dated November 5, 1998, Countrywide advised plaintiff’s attorney that it was in receipt of his August 13, 1998 letter. Countrywide also advised plaintiff’s attorney that it was missing plaintiff’s no-fault file and asked that a copy of this file be sent to it in order to “expedite settlement” of plaintiff’s claim. Finally, Countrywide stated that it was “ready, willing, and able to discuss all claims,” but first needed to review the missing no-fault file. Following the exchange of these letters, the case proceeded through the discovery process. Although plaintiff’s counsel claims that he attempted to negotiate a settlement during this period, the only firm settlement offer made by plaintiff during the pendency of her action was set forth in the August 13, 1998 letter, which, by its own terms, expired on August 23, 1998. [*3]

On December 13, 2001, at the commencement of jury selection, Countrywide tendered its first settlement offer in the amount of $8,000 and plaintiff rejected this offer. The following day, Countrywide tendered a settlement offer in the amount of $10,000, the full policy limit. Plaintiff also rejected this offer. After a trial on liability and damages, the jury found Mr. Nixon 70% responsible for the accident, and plaintiff 30% responsible. The jury awarded plaintiff $750,000 for past pain and suffering and $250,000 for future pain and suffering. On appeal, the Appellate Division, Second Department upheld the jury’s determination on liability but reduced damages for past pain and suffering to $350,000 and future pain and suffering to $105,000. Ultimately, plaintiff entered a judgment against Mr. Nixon in the total amount of $459,796.75, inclusive of interest. On May 30, 2002, plaintiff and Mr. Nixon entered into an agreement whereby plaintiff relinquished her right to enforce the judgment against Mr. Nixon personally in exchange for an assignment of Mr. Nixon’s right to pursue a claim against Countrywide for an alleged bad faith refusal to accept plaintiff’s settlement offer.

The Instant Bad-Faith Action

By summons and complaint dated July 10, 2003, plaintiff commenced the instant action against Countrywide alleging that it acted in bad faith and in gross disregard of the insured’s interests when it failed to accept plaintiff’s August 13, 1998 settlement offer. The instant motions are now before the court.

“To establish a prima facie case of bad faith refusal to settle, a plaintiff must demonstrate that the insurance carrier’s conduct constituted a gross disregard of the policyholder’s interests-that is, a deliberate or reckless failure to place on an equal footing its own interests and those of the policyholder when considering a settlement offer” (Vecchione v Amica Mut. Ins. Co., 274 AD2d 576, 578 [2000]). “In other words, a bad-faith plaintiff must establish that the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted” (Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453-454 [1993]).

“Factors that enter into the bad faith equation include the likelihood of success on the liability issue in the underlying action, the potential magnitude of damages and resulting financial burden each party may be exposed to as a result of a refusal to settle, and the information available to the insurance carrier at the time the demand for settlement is made” (Vecchione, 274 AD2d at 578-579). “Naturally, proof that a demand for settlement was made is a prerequisite to a bad-faith action for failure to settle” (Pavia, 82 NY2d at 454). Furthermore, a bad-faith plaintiff must demonstrate that, at the time such a settlement demand was offered, “all serious doubts about the insured’s liability were removed” (id. at 454).

It is clear from the record before the court that Countrywide’s conduct in this matter was hardly a model of diligence. For example, Countrywide has failed to offer a satisfactory excuse for waiting some three months before responding to plaintiff’s August 13, 1998 settlement offer. However, the fact of the matter is, the only settlement demand that plaintiff made in this case was contained in the August 13, 1998 letter. Thus, plaintiff’s entire case rests upon a settlement demand that was only open for ten days and was made a mere two days after she commenced the underlying [*4]action. In Pavia, the Court of Appeals expressed strong disapproval of such time-limited settlement offers on public policy grounds. Specifically, the Court noted that:

“[p]ermitting an injured plaintiff’s chosen timetable for settlement to govern the bad-faith inquiry would promote the customary manufacturing of bad-faith claims, especially in cases where an insured of meager means is covered by a policy of insurance which would finance only a fraction of the damages in a serious personal injury case. Indeed, insurers would be bombarded with settlement offers imposing arbitrary deadlines and would be encouraged to prematurely settle their insureds’ claims at the earliest possible opportunity in contravention of their contractual right and obligation of thorough investigation.”^[FN1] (Pavia, 82 NY2d at 455).

Besides the public policy concerns which are implicated with plaintiff’s time-limited settlement offer, there are other factors which weigh against plaintiff’s bad faith claim. As the court noted above, plaintiff’s settlement offer was made nearly simultaneously with the filing of the underlying complaint. While it is true that Countrywide was on notice as to the circumstances of the accident given its involvement in the Domfe action, it had no opportunity to conduct an independent medical exam or to depose plaintiff regarding her injuries. Finally, plaintiff’s claim that all serious doubts about Mr. Nixon’s liability were removed at the time of the settlement offer is belied by the jury’s finding that plaintiff was 30% responsible for the accident.

Accordingly, Countrywide’s motion for summary judgment dismissing plaintiff’s complaint is granted and the action is hereby dismissed. Plaintiff’s cross motion for summary judgment against Countrywide is denied.

This constitutes the decision, order, and judgment of the court.

Dated: October 18, 2004E N T E R,

J. S. C.

Footnotes

Footnote 1:In Pavia, the settlement offer was valid for 30 days, three times longer than plaintiff’s offer.

Civil Court of the City of New York, Kings County

41116/2004

Peter P. Sweeney, J.

In this action pursuant to Insurance Law § 5101 et seq to recover first-party no-fault benefits, plaintiff moves to strike defendant’s seventh, eighth and tenth affirmative defenses on the ground that they were not pleaded with the specificity required by CPLR 3016(b). For the reasons stated below, the motion is denied in part and granted in part.

Factual Background

Plaintiff Carepluss Medical Supply Inc. a/a/o Edme Aenor commenced this action by the service of a summons and complaint, alleging that the defendant State Farm Mutual Automobile Insurance Company wrongfully denied a claim for first-party no-fault benefits. The claim was in [*2]the amount of $757.00 for medical supplies provided to its assignor Edme Aenor in connection with injuries arising out of a September 2, 2002 motor vehicle accident. In its denial dated April 9, 2003, the defendant acknowledged receipt of the clain on December 4, 2002 and denied the claim solely on the ground that Mr. Aenor failed to appear for two scheduled examinations under oath.

In its answer, defendant denied all the material allegations alleged in plaintiff’s complaint and asserted twelve affirmative defenses. Defendant’s seventh, eighth and tenth affirmative defenses provide as follows:

SEVENTH: That Plaintiff has engaged in fraudulent conduct in connection with the operation of its business and the submission of the claim to State Farm by intentionally paying substantially more for the items at issue for which reimbursement is sought, than the price that is readily available in the relevant marketplace, with the intent to deceive State Farm, and to inflate the charges that were submitted to State Farm.

EIGHTH: That Plaintiff has fraudulently and materially misrepresented to State Farm that the cost that was incurred and upon which the charges for the items at issue were based, were necessary and/or required costs, when In fact, the Plaintiff intentionally paid more for the items at issue than the price that is readily available in the relevant marketplace, with the intent to deceive State Farm and to inflate the charges that were submitted to State Farm.

TENTH: That the medical supplies fo which reimbursement is sought were not related to the accident in question and/or were never actually provided.

Plaintiff maintains that since these defenses are premised upon allegations of fraud and misrepresentation, they must be dismissed because they were not pleaded with the specificity required by CPLR 3016(b), which in pertinent part, provides: “[w]here a * * * defense is based upon misrepresentation [or] fraud * * * the circumstances constituting the wrong shall be stated in detail.”

Discussion

Plaintiff’s motion is granted, but only to the extent that defendant’s seventh and eighth affirmative defenses and that portion of defendant’s tenth affirmative defense alleging that “the medical supplies fo which reimbursement is sought were * * * were never actually provided” are stricken. These defenses are being stricken, not because of defendant’s non-compliance with CPLR 3016(b), but because defendant’s admitted failure to pay or reject the claims within 30 days of receipt precluded it from raising them (see Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274; Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195).

In the court’s view, the defendant complied with CPLR 3016(b) which “requires only that [*3]the misconduct complained of be set forth in sufficient detail to clearly inform a [plaintiff] with respect to the incidents complained of and is not to be interpreted so strictly as to prevent an otherwise valid cause of action in situations where it may be ‘impossible to state in detail the circumstances constituting a fraud'” (Lanzi v. Brooks, 43 NY2d 778, 780, quoting Jered Contr. Corp. v. New York City Tr. Auth., 22 NY2d 187, 194). Defendant’s seventh, eighth and tenth affirmative defenses pass muster under this analysis, especially since the facts and circumstances underlying these defenses are most likely within the exclusive knowledge of the plaintiff. It would seem to be impossible for the defendant to be any more specific at this stage of the proceedings.

The court is cognizant that in some instances, a defense premised upon fraud may be asserted even when a denial is issued beyond the 30 day period set forth in Insurance law § 5106[a]. Such instances, however, are limited to situations were the fraud, if proven, would establish that there was no coverage at all for the claim (Central General Hosp., 90 NY2d at 199). Thus, where a fraud defense is premised upon allegations that the collision underlying the claim was a staged event in furtherance of an insurance fraud scheme, the defense survives an untimely denial since a fabricated accident does not trigger coverage under the no-fault endorsement (see e.g. Mount Sinai Hospital v. Triboro Coach Inc ., 263 AD2d 11,19, citing Central General Hospital, supra ., Inwood Hill Medical P.C. v. Allstate Insurance Company, 2004 WL 1381082).

On the other hand, where fraud defenses are premised upon allegations of excessive or fraudulent billing, as is the case here, the defenses do not survive an untimely denial since the defenses, even if established, would not result in a finding that there was ” no coverage at all” for the claim (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 2004 WL 1431320, 2, citing Central Gen. Hosp., 90 NY2d at 199, 659 NYS2d 246, 681 NE2d 413; Presbyterian Hosp. in City of NY, 90 NY2d at 285).

Finally, plaintiff has not established a basis for striking that portion of defendant’s tenth affirmative defense which alleges that “the medical supplies for which reimbursement is sought were not related to the accident.” Even where there is an untimely denial, an insurer may raise a lack of coverage defense “premised on the fact or founded belief that an alleged injury does not arise out of an insured incident.” (Central General Hospital , 90 NY2d at 199). Such a defense does not necessarily have to be premised upon fraud and may be raised in situations where the insurer is claiming that the injuries at issue arose out of an uninsured accident (see e.g. Central General Hosp. , supra [allegation that injuries arose out of a separate work-related accident and not a motor vehicle accident]. In such circumstances, the specificity requirements of CPLR 3016(b) do not apply.

This constitutes the decision and order of the court.

Dated: September 29, 2004

_____________________________

PETER P. SWEENEY [*4]

Civil Court Judge

Civil Court, Kings County

87097KCV2004

Eileen N. Nadelson, J.

This matter involves the disputed billing of $1,791.73 for MRIs which was denied by the arbitrator based upon the grounds of lack of documented medical necessity. Petitioner appealed the arbitrator’s award to a Master Arbitrator, alleging that the arbitrator’s decision was arbitrary, capricious, irrational and without a plausible basis in fact. Based on that argument, Petitioner asked the Master Arbitrator to vacate the award pursuant to CPLR section 7511(b)(1). The Master Arbitrator, however, affirmed the arbitrator’s award.

Petitioner, pursuant to CPLR 7511, now moves this court to vacate the decision of the Master Arbitrator as arbitrary and capricious.

In presenting its claim to the arbitrator, Petitioner evidenced that it submitted its claim, a valid assignment of first party benefits, and that Respondent insurer failed to pay or deny the claim within thirty days of receiving the claim. The arbitrator found that Respondent failed to [*2]pay or deny the claim in a timely manner; however, the arbitrator also found that the MRIs billed for were not medically necessary. Based on this finding, the arbitrator denied the claim, stating that Petitioner failed to meet its burden of proof with respect to the medical necessity of the MRIs. The Master Arbitrator, in affirming the award, found that the arbitrator’s conclusion was based on sufficient evidence to support the award.

CPLR section 7511((b)(iii) provides that an arbitrator’s award may be vacated if it is found that the arbitrator exceeded his power or imperfectly executed it. In Petrofsky v. Allstate Insurance Company, 54 N.Y. 2d 207, 445 N.Y.S. 2d 77 (1981), the Court of Appeals held that the role of a master arbitrator in insurance cases is to assure that the arbitrator reached a decision in a rational manner, that the decision was not arbitrary and capricious, incorrect as a matter of law, or in excess of policy limits or in conflict with other designated no-fault arbitration proceedings. Therefore, the question to be decided by this court is whether the decision of the arbitrator, as confirmed by the Master Arbitrator, was arbitrary, capricious, or incorrect as a matter of law.

Historically, the courts held that the applicable test for review of no-fault arbitrations where error of law is in issue is essentially similar to that utilized for review of quasi-legislative determinations- whether any reasonable hypothesis can be found to support the questioned interpretation. Shand v. Aetna Insurance Company, 74 A.D. 2d 442, 428 N.Y.S. 2d 462 (2d Dept. 1980). Under this theory, a court, in reviewing an arbitrator’s award, should not set it aside for errors of law or fact unless the award is so irrational as to require vacatur. Hanover Insurance Company v. State Farm Mutual Insurance Co., 226 A.D. 2d 533, 641 N.Y.S. 2d 547 (2d Dept. 1996). Even as recently as 1997, the courts in this department upheld arbitrator’s decisions, even if the arbitrator misconstrued the law, provided that the arbitrator’s conclusion was neither irrational nor arbitrary and capricious so as to justify vacating the award. Gravenese v. Allstate Insurance Company, 245 A.D. 2d 507, 666 N.Y.S. 2d 710 (2d Dept. 1997). However, more recently the courts in the second department have taken a different approach when called upon to review arbitral decisions.

In Park Radiology, P.C. v Allstate Insurance Company, 2 Misc. 3d 621, 769 N.Y.S. 2d 870 (Richmond County 2003), a case involving the claim for first party no-fault benefits, the arbitrator, as in the instant case, found that the insurer failed to pay or deny the claim within the prescribed thirty day period. Nevertheless, the arbitrator found that the medical provider failed to establish a prima facie case that the tests performed were medically necessary and so denied the claim. In affirming the award, the master arbitrator cited the Petrofsky case as limiting his ability to vacate an award that is neither arbitrary nor capricious. However, the Civil Court vacated the master arbitrator’s decision and found for the medical provider, asserting that the arbitrator and master arbitrator misconstrued the law.

The law with respect to the burden of proof in first party no-fault claims was established by the court in Bonetti v. Integron National Insurance , 269 A.D. 2d 413, 703 N.Y.S. 2d 217 (2d Dept. 2000). The Bonetti court stated that, with limited exception, an insurer is precluded from [*3]denying a no-fault claim if it fails to timely deny it. Further, an insurer is precluded from challenging the adequacy of a claimant’s proof of medical necessity if it fails to timely deny the claim for no-fault benefits. Vinings Spinal Diagnostic, P.C. v Liberty Mutual Insurance Company, 186 Misc. 2d 287, 717 N.Y.S. 2d 466 (Nassau County 2000). This is true despite a contrary position taken by the New York Department of Insurance.

In an informal opinion letter entitled “No-Fault Burden of Proof,” January 11, 2000, the Department of Insurance indicated that, even if a claim is not timely denied, the claimant may still have to substantiate that the treatment for which reimbursement is sought was medically necessary. This approach has been taken by the arbitrators in no-fault arbitration, but has not been followed by the courts. Das/N.Y. Medical Rehab P.C. v. Allstate Insurance Company, 297 A.D. 2d 321, 746 N.Y.S. 2d 262 (2d Dept 2002).

This court finds that the overwhelming weight of judicial authority in this matter holds that an insurer is precluded from raising any defense, other than lack of coverage, when it fails to comply with the rule requiring it to deny a claim within thirty days of receipt of the claim. Insurance law section 5106(a); New York Medical Center of Queens v. Country-Wide Insurance Company, 295 A.D. 2d 583, 744 N.Y.S .2d 201 (2d Dept. 2002); New York & Presbyterian Hospital v. American Transit Insurance Company, 287 A.D. 2d 699, 733 N.Y.S. 2d 80 (2d Dept. 2001).

Consequently, the court concludes that petitioner met its burden of proof when it presented its claim and proof that Respondent failed to deny the claim within thirty days. Based on the decision in Park Radiology, P.C. , supra, the court holds that the arbitrator’s and Master Arbitrator’s award did not have a rational basis since it is contrary to the state of legal precedent.

The court vacates the decision of the Master Arbitrator and finds for Petitioner in the amount of $1,791.73, with statutory interest and fees as established iin section 5106(a) of the Insurance Law.

Dated: September 27, 2004

__________________________

EILEEN N. NADELSON, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, September 24, 2004

APPEARANCES OF COUNSEL

Amos Weinberg for plaintiff. Melli, Guerin & Melli (Matthew J. Smith of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

Plaintiff, a medical provider that is seeking first-party benefits pursuant to New York’s No-Fault Insurance Law, has moved for summary judgment based on defendant insurer’s failure to pay or deny plaintiff’s claim within the statutory 30-day period following submission of said claim.

Defendant is opposing the motion for summary judgment by asserting that it is not subject to the provisions of 11 NYCRR 65-3.4 because plaintiff’s assignor, the person allegedly injured in the motor vehicle accident, failed to submit to several requests for an examination under oath (EUO), and that the loss is not a covered loss because the accident was staged, thereby rendering plaintiff’s assignor a noneligible party pursuant to New York’s No-Fault Regulation 68 (11 NYCRR part 65).

In reply to defendant’s opposition to this motion, plaintiff avers that the basis for denial [*2]stemming from its assignor’s failure to submit to EUOs is inapplicable because the statute authorizing such basis did not go into effect until after the incident in question. Further, plaintiff maintains that any accusation of fraud with respect to the claim made by defendant has been made against the other individuals involved in the incident but not against its assignor.

The basic facts are not in dispute. The insurance policy in question was issued by defendant on March 3, 2002. The alleged accident occurred on March 20, 2002. Plaintiff’s claim was received by defendant on May 16, 2002. After submission of the claim defendant requested an examination under oath of plaintiff’s assignor. Plaintiff’s assignor failed to appear and a second EUO was scheduled, which she also did not attend. On December 13, 2002, defendant issued its denial of benefits to plaintiff.

The regulation that forms the basis of this motion, Regulation 68-A, 11 NYCRR 65-1.1, was enacted in September of 2001. The regulation applies to all new and first renewal insurance policies effective on or after September 1, 2001. (11 NYCRR 65-1.1 [b] [1], [2].) The effective date of the regulation is April 5, 2002. The import of this regulation to the case at bar is that it is the operative legislative authority for an insurer to deny first-party benefits to medical providers whose assignors fail to attend EUOs.

Plaintiff’s argument rests on the fact that the effective date of the regulation is subsequent to the date of the alleged accident and injury, and therefore is inoperative to the instant action. In support of this contention, plaintiff relies on Bronx Med. Servs., P.C. v Lumbermans Mut. Cas. Co. (2003 NY Slip Op 51022[U], *3 [App Term, 1st Dept 2003]), which states that “[t]he revised regulations cannot be applied retroactively to cover plaintiff’s September 2000 no-fault claim.” However, the facts in this cited decision are clearly distinguishable from the case at bar.

In Bronx Med. Servs., the insurer was basing its denial on a provision of the issued insurance policy in question. The court stated that “[t]he no-fault protection created by statute and implementing regulations cannot be qualified by the inapplicable conditions and exclusions of the liability portion of the policy.” (At *3 [internal quotation marks omitted], quoting Utica Mut. Ins. Co. v Timms, 293 AD2d 669 [2002].) In other words, the statute would prevail over a contrary provision in a private contract of insurance. Because the regulation in question was not enacted until after the subject accident, the court found the plaintiff’s reasoning specious that the change in the regulation should give effect to its insurance policy provision. It was in the context of refuting this argument that the court correctly stated that the regulation could not be given retroactive effect.

This court notes that the accident and claim for benefits in the Bronx Med. Servs. case both occurred in the year 2000.

In the instant case, the regulation applies to the insurance policy issued by defendant in March of 2002. The only question to be decided by this court is whether the regulation applies to [*3]claims filed after its effective date relating to accidents occurring before its effective date.

Few decisions have been rendered on this issue, and none on this specific point. In Ocean Diagnostic Imaging P.C. v GEICO Ins. (3 Misc 3d 137[A], 2004 NY Slip Op 50511[U] [2d Dept 2004]), the court found that Regulation 68-A did not apply because it was not in effect on the date of the accident or of the claim, which was received on August 15, 2001. In King’s Med. Supply Inc. v Progressive Ins. (3 Misc 3d 126[A], 2004 NY Slip Op 50311[U], *2 [2d Dept 2004]), the court also found for the provider because “at the time plaintiff’s claims were filed, EUOs were not available as a form of verification.” (Emphasis added.) Finally, in A.B. Med. Servs. PLLC v Eagle Ins. Co. (3 Misc 3d 8, 10 [2d Dept 2003]), the court held that the subject regulation was inapplicable with respect to denying claims based on the provider’s assignor failing to attend EUOs because “at the time plaintiffs filed the instant claims there was no provision in the insurance regulations for such a procedure.” (Emphasis added.)

All of the above-cited decisions are clear on one point: Regulation 68-A does not apply retroactively to claims filed before its effective date. By contrast, the claim for benefits in the instant case was filed more than a month after the regulation came into effect, and the insurance policy upon which the claim is based is subject to the regulation because it was issued and effective after September 1, 2001. Therefore, the court holds that Regulation 68-A applies to claims filed after its effective date and, consequently, the court denies plaintiff’s motion for summary judgment.

Although now moot, the court also finds that defendant’s argument that plaintiff’s assignor is not a covered person because of alleged fraud to be without merit. Defendant asserts correctly that the preclusion rule (denying an insurer the ability to raise any defense to a claim not paid or denied within 30 days of receipt or 30 days after verification) does not apply to a defense based on a claim that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (A.B. Med. Servs. PLLC v Eagle Ins. Co., supra). However, defendant has failed to provide any evidence of fraud with respect to plaintiff’s assignor. All assertions of fraud are made against the other parties to the incident, and therefore are not relevant to the assignor in question.

Plaintiff’s motion for summary judgment is denied for the reasons stated above.

Civil Court of the City of New York, Kings County

80154/03

David M. Steiner, Esq. of Isreal, Isreal & Purdy of Great Neck, NY appeared for plaintiff; Jeanne M. Valentine, Esq. of Cluasen, Miller P.C. of New York, New York appeared for Defendant.

Ann Elizabeth O’Shea, J.

Upon the foregoing cited papers, the decision and order on defendant’s motion to vacate a default judgment and to dismiss the complaint, is as follows:

Plaintiffs Aurora Chiropractic PC, Dragon Acupuncture PLLC, Latortue Medical Services, PC and S & B Neurocare, PC, instituted this action to recover first-party, no-fault benefits for medical services rendered to their assignor, Kathleen Marsh, who was injured in an automobile accident on February 16, 2001. Plaintiffs provided medical services to Ms. Marsh between March 14, 2001, and February 8, 2002. Each of the plaintiffs made several claims for payment. Upon the purported failure of defendant to pay or deny the claims within thirty days, plaintiffs instituted this action.

The summons and complaint were served on defendant on June 25, 2003. An extension of time to file an answer was requested and granted, giving counsel until August 15, 2003, to answer the complaint. On defendant’s failure to answer, a clerk’s judgment was entered, without any judicial intervention, in the amount of $31,287.65.

Defendant now seeks an order opening the default and setting aside the judgment entered [*2]against it. Defendant also seeks an order dismissing the complaint on the grounds that after August 31, 2001, it had no further obligation to pay No Fault benefits. Plaintiff submitted papers in opposition. Oral argument was heard on May 19, 2004, subsequent to which the matter was submitted for decision.

As a general rule, a default judgment will be vacated and a late answer will be permitted when a defendant can show that there was some reasonable excuse for its delay in answering and there is some merit to its defense (see Spencer v. Sanko Holding USA, 247 AD2d 532 [2d Dept 1998]). A defendant is not required to establish its defense as a matter of law; it need only set forth sufficient facts to make out a prima facie showing of a meritorious defense (see Quis v. Bolden, 298 A.D.2d 375 (2d Dept 2002).

In support of its claim to have a reasonable excuse for its delay in answering, defendant states that it intended to file an answer to the complaint, but ultimately could not do so without an index number, which plaintiff failed to provide. Although defendant allegedly attempted independently to ascertain the index number, by sending its law clerk on September 25, 2003, directly to the Court, its law clerk allegedly was told that there was no index number assigned to the matter. When defendant’s law clerk subsequently sought the information directly from plaintiff’s counsel by telephone, he purportedly was informed that plaintiff’s counsel was “not aware of” the index number, a telephone conversation which plaintiff’s counsel denies ever occurred. No claim is made that any further attempts to serve or file its answer were made. Because it was plaintiffs’ duty to provide defendant with an index number, defendant asks the court to excuse defendant from having taken no further action between the date on which it made inquiry of the Civil Court, and the date on which the default judgment was entered.

Despite defendant’s failure to follow up on the case during the five months which passed between the date it first sought an index number incident to filing an answer, and the date the default judgment was entered, it seems evident that there was no intention on the part of defendant to default in answering. Viewed in light of the strong public policy of this State which favors the resolution of cases on the merits (see Scagnelli v. Pavone, 178 AD2d 590 [2d Dept 1991]), and considering the fact that defendant moved promptly to open the default (see A.B. Med. Servs. Pllc v. Americar & Truck Rental Inc.., 2003 NY Slip Op 51394U [App. Term. 2003]), defendant’s excuse is deemed adequate.

Defendant advances as its “meritorious defense” a claim that the treatment rendered by plaintiffs was not medically necessary. Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely denial, based on a medical examination or a sufficiently detailed peer review report (see Amaze Med. Supply, Inc. v. Eagle Ins. Co., 2004 NY Slip Op 50279U, 1 [App. Term 2d Dept 2004]). In this case, defendant’s claim of a lack of medical necessity is supported by the results of five independent medical examinations conducted by Dr. Weiss, an orthopedist, Dr. Weksler a clinical psychologist and certified pain specialist, Dr. Zlatnick, a neurologist, Dr. Orenstein, a chiropractor, and Dr. Iozzio, an acupuncturist. In their reports, the last dated August 21, 2001, each concludes that Ms. Marsh is fully recovered, and has no further need for medical treatment, establishing its defense.

Defendant contends that the timeliness of its denial is not in issue as it issued a blanket denial of all “future benefits” directly to Ms. Marsh, in advance of the submission of any of plaintiffs’ [*3]claims, bringing it outside of the preclusion rules set forth in Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997]. In support of this contention, defendant appends as an exhibit to its motion papers, five undated denial of claim [NF-10] forms. Each references a particular independent medical examination report and states that “future benefits are being denied” based on the specified report. Although no proof of mailing was adduced, defendant contends that the NF-10 forms, and the medical reports, were mailed to Ms. Marsh on August 31, 2001.

No-fault regulations provide that “if the insurer has information which clearly demonstrates that the applicant is no longer disabled, the insurer may discontinue the payment of benefits by forwarding to the applicant a prescribed denial of claim form” (11 NYCRR 65.15[g][2][ii]). However, that section does not absolve defendant of its responsibilities under the No-Fault law and regulations to individually consider and timely pay or deny each subsequent claim made for benefits under the No-Fault law. As was observed by the court in Atlantis Medical, P.C. v. Liberty Mutual Insurance Co., 2002 NY Slip Op 40043U, 2002 NY Misc LEXIS 202 [Dist. Ct. Nassau Co.], when the provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply “sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.” To the contrary, both the statute and the regulations contemplate the insurer responding directly to the claim within the statutorily prescribed time frame, failing which it will be precluded, pursuant to Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997], from interposing such defenses as a lack of medical necessity.

Nor will a belated denial of plaintiffs’ No Fault claims be “deemed” timely on the basis of its earlier blanket disclaimer of responsibility which predated plaintiffs’ provision of services (see A&S Medical, P.C. v. Allstate Insurance Co., 196 Misc2d 322, 323 [App. Term. 1st Dept 2003], app. granted, NY App Div 2004 LEXIS 9836 [1st Dept July 5, 2004]). Thus, the additional NF- 10 forms included in defendant’s motion papers, dated January 16, 2002, responding to two claims made by plaintiff Aurora Chiropractic for $48.90 and $439.27, one claim made by plaintiff Latortue Medical Services for $812.89, and two claims made by plaintiff Dragon Acupuncture, for $1,275 and $1105, are not rendered “timely” by the mere addition of “benefits terminated on 8/31/01” as a part of the reason given for denial of the claims.

Nor do any of the January 10, 2003, NF-10 forms, standing on their own, evidence a timely denial of these five claims. For one thing, none of the NF-10 forms was sent to plaintiffs, as required by 11 NYCRR § 65.15(g)(3)(i)(“the applicant or the authorized representative”). They were all sent to plaintiffs’ assignor. Further, the forms are incomplete, lacking among other things the date on which the specified claims were received, absent which the timeliness of the response cannot be determined. Finally, defendant does not list a lack of medical necessity as the reason for its denial of plaintiffs’ claims. Having failed to do so, defendant is precluded pursuant to Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274 [1997], from advancing lack of medical necessity as a defense to any part of this action.

As defendant is precluded, in the absence of a timely denial, from advancing lack of medical necessity as a defense, defendant’s motion to vacate the default and set aside the judgment is denied.

This constitutes the decision and order of this Court. [*4]

Date:September 23, 2004_____________________________

Ann Elizabeth O’Shea, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, September 23, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, P.C. (Robert J. Baker of counsel), for plaintiff. Meiselman, Denlea, Packman, Carton & Eberz, P.C. (Stephen L. Bauley of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

This motion and cross motion for summary judgment raises a question of first impression under the regulations enacted pursuant to New York’s No-Fault Insurance Law.

Plaintiff sued defendant insurer to recover for first-party benefits under New York’s No-Fault Law. In support of its claim, plaintiff submitted proof of claim to defendant, including its proof of mailing. Plaintiff alleges that defendant failed to pay or deny its claim within 30 days as required by the No-Fault Law, nor has defendant requested additional verification. Under such circumstances, plaintiff asserts that defendant is precluded from raising a defense to its claim. (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997].) Therefore, plaintiff moved this court for summary judgment pursuant to CPLR 3211.

In opposition to plaintiff’s motion, defendant raised several issues, all of which have been dealt with during oral argument, leaving only one issue to be decided by the court. [*2]Defendant maintains that it does not have to pay the claim because plaintiff is not currently registered with the New York State Department of Education. This argument forms the basis of defendant’s cross motion for summary judgment. Plaintiff’s counsel has represented that plaintiff, although not currently registered, was registered at the time the services that form the basis of this claim were provided.

Therefore, the issue to be determined by the court is: Whether a health care provider who is registered with the New York State Department of Education at the time services are provided may recover the value of those services under New York’s No-Fault Insurance Law if the provider is no longer registered at the time payment for those services is sought?

11 NYCRR 65-3.16 (a) (12) states:

“A provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

To date, this section of the regulation has not been subject to judicial scrutiny.

The words of the statute would appear to be clear on its face: licensed to “perform such service.” However, without any other direct interpretation of this regulation, the court must look to other circumstances in which the judiciary has determined similar issues.

Section 691.10 (b) of title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, dealing with the conduct of attorneys, states that “[a] disbarred, suspended or resigned attorney may be compensated . . . for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation.”

The rationale behind this regulation is that the services were provided by the attorney when he or she was licensed, and therefore the attorney is entitled to appropriate compensation for the work the attorney legally performed. (See generally, Casey v Ruffino, 306 AD2d 304 [2d Dept 2003]; Lee v Hayt, Percy & Mermelstein, 4 Misc 3d 1012[A], 2004 NY Slip Op 50853[U] [2004].)

Further, under general principles of contract law, it is well settled that contracts made by private parties must necessarily be construed in the light of the applicable law at the time of their execution. (10 NY Jur 2d, Contracts § 204, at 112; see City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Empls. Assn. v City of Troy, 36 AD2d 145 [3d Dept 1971].) Generally, therefore, the validity of a contract will depend upon the law as it existed at [*3]the time it was made. (Goldfarb v Goldfarb, 86 AD2d 459 [2d Dept 1982].) The only exception to this rule occurs if there is a variation in the law that is made due to changes in public policy. Otherwise, the contract will be interpreted according to the law in effect at the time of its execution. (Bloomfield v Bloomfield, 97 NY2d 188 [2001].)

The court does not find any legislative intent that indicates it is against public policy to reimburse a medical provider for services rendered that were lawfully performed, regardless of the subsequent status of the medical provider.

Based on the foregoing, the court holds that a medical provider may be reimbursed for services rendered while he or she was registered and licensed to perform such services under section 65-3.16 (a) (12) of 11 NYCRR, even if the provider subsequently becomes unregistered.

Plaintiff’s motion for summary judgment is granted. Defendant’s cross motion for summary judgment is denied.

[*1]

Civil Court of the City of New York, Kings County, September 14, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for plaintiffs. Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

OPINION OF THE COURT

Ann Elizabeth O’Shea, J.

Plaintiffs A.B. Medical Services PLLC and LVOV Acupuncture P.C. instituted this action to recover first-party, no-fault benefits for medical services rendered to their assignor, Danny Arenas, who was injured in an automobile accident on March 7, 2003. Plaintiffs provided medical services to Mr. Arenas between March 24, 2003 and June 5, 2003. Each of the plaintiffs made several claims for payment. Only four of those claims are in issue here, each originating from plaintiff A.B. Medical.

Under the no-fault insurance regulations, an insurer must pay or deny a claim within 30 days after it receives a properly completed proof of claim (11 NYCRR 65-3.8 [c]). While an insurer may request additional information to verify a claim, it must do so within 15 days after receiving the proof of claim (11 NYCRR 65-3.5 [b]), and it must then pay or deny the claim within 30 days after receipt of the requested information (11 NYCRR 65-3.8 [a] [1]; [c]).

In order to establish a prima facie case of entitlement to summary judgment on its claims for first-party, no-fault benefits, a plaintiff medical provider need only provide proof that it submitted and defendant received a properly completed claim form, including a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), and that defendant did not pay or deny the claim within 30 days after its receipt of the proof of claim or of additional information in response to a [*2]timely request for verification (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2d Dept 2004]).

All four claims were denied on the asserted ground that the services provided were not medically necessary. The forms denying three of the four claims in issue were dated more than 30 days after defendant had received complete proofs of claim. One—for $604.24—was received by defendant on April 29, 2003, and the denial form is dated June 3, 2003, 35 days after the claim was received. A claim for $240 and another for $1,972.08 were received by defendant on June 11, 2003; the denial form for each of those is dated July 22, 2003, 41 days after receipt of the claim. The fourth claim, for $360, was received by defendant on April 14, 2003. Although the denial form is dated May 14, 2003, exactly 30 days after receipt of the claim, the envelope in which the denial was mailed is postmarked May 19, 2003, 35 days after receipt of the claim. In that situation, the operative date for determining the timeliness of the denial must be the date on which the denial was mailed, not the date stated on the denial form (accord Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]). To conclude otherwise would undermine the primary goal of the no-fault system, which is the prompt consideration and processing of claims for losses resulting from automobile accidents (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), permit unwarranted delays in the notification of the denial, or encourage the backdating of denials.

Despite the untimeliness of its denials, defendant contends that the assignment of benefits submitted by plaintiff in conjunction with its proofs of claim is deficient because it is undated and the signature of the purported assignor is unauthenticated. While the no-fault regulations require that a proof of claim include a “properly executed” assignment of benefits (11 NYCRR 65-3.11 [b] [2]), the Appellate Term has rejected the argument that the signature on an assignment of benefits must be authenticated for a plaintiff to meet its prima facie burden on a motion for summary judgment (see Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U] [2004], revg Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., Civ Ct, Kings County, July 7, 2003, Sweeney, J., Index No. 75326/02). There is no principled reason why the absence of a date on an assignment should be treated differently from the absence of an authentication of the signature (but see A.B. Med. Servs. v American Tr. Ins. Co., Civ Ct, Kings County, Apr. 13, 2004, Gesmer, J., Index No. 69587/03). Defendant had the opportunity to object to the form or sufficiency of the assignment and to request the original assignment pursuant to its right to seek verification of the claim at the claims stage of the proceeding (see 11 NYCRR 65-3.5 [a]-[c]; 65-3.11 [c]). Its failure to do so results in a waiver of any defense based upon an asserted infirmity in the assignment (New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]; Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 3 Misc 3d 137[A], 2004 NY Slip Op 50510[U]), or on any other asserted deficiency in the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2d Dept 2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]), as well as any defense based upon lack of medical necessity (see e.g. Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists, June 27, 2002]).

Having submitted proof that it mailed and defendant received its claim forms demonstrating the amount of the loss sustained and that defendant failed to request verification of the assignments or claims or to pay or deny those claims within the applicable time limits, plaintiff established its prima facie entitlement to summary judgment on each of its claims (see New York Hosp. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2d Dept 2004]). Since defendant is precluded from raising any defense with respect to the sufficiency of the claim forms or the medical necessity of the services provided, there are no issues of fact or law that remain in dispute.

Accordingly, plaintiffs’ motion for partial summary judgment is granted.

Supreme Court, Kings County

37746/03

Francois Rivera, J.

The defendant Allstate Insurance Company moves pursuant to CPLR §603 to sever and dismiss the claims brought by plaintiff Aviyon Medical Rehabilitation, P.C. Plaintiff opposes defendant’s motion.

Plaintiff is a health care provider authorized to practice and render diagnostic services in New York State and maintains an office at 107-13 Jamaica, Richmond Hill in Queens County. Defendant is a foreign corporation, duly authorized to conduct the business of providing automobile liability and no fault insurance to New York State motorists.

On October 9, 2003, plaintiff commenced this action by filing a summons and verified complaint with the Kings County Clerk’ s Office. Defendant answered with a general denial and asserted (28) twenty-eight affirmative defenses. Plaintiff’s verified complaint annexed a list containing the names of (36) thirty-six motor vehicle accident victims, the dates of their accidents, the amount of their unpaid no fault claims, and the corresponding claim numbers assigned to them by the defendant. Plaintiff alleged that all these individuals were injured while covered by an automobile liability insurance policy containing a New York State no-fault endorsement issued by the defendant.

Plaintiff allegedly provided health services to each of these individuals for their accident related injuries and they each assigned to plaintiff the right to receive their no-fault benefits for these services. Plaintiff contended that contrary to the requirements of Insurance Law §5106(a), defendant failed to pay the total amount due on the assigned claims leaving an aggregate unpaid balance in the amount of $105,218.78.

CPLR §603 provide as follows:

Severance and separate trials. In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others. [*2]

In support of its motion for severance, defendant contends that joinder is improper pursuant to CPLR §1002(a) because the thirty-six (36) joined claims do not arise from a series of transactions or occurrences and do not contain a common question of law or fact. Defendant further alleges that joinder would cause defendant prejudice and lead to jury confusion. Defendant ‘s claim of prejudice is premised on the alleged logistical difficulty of coordinating and preparing a defense for each claim between the various assigned claims representatives spread throughout the state. Defendant also claims a likelihood of jury confusion based solely on the volume of claims.

CPLR §1002(a) provides:

Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction or occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.

Although defendant claims improper joinder, the case at bar has but one party on each side, Aviyon Medical Rehabilitation, P.C. and Allstate Insurance Company. Pursuant to the liberal pleading provisions of CPLR §601(a), a plaintiff in a complaint, or the defendant in an answer setting forth a counterclaim or cross-claim, may join as many claims as he may have against an adverse party. Thus, the plaintiff is free to join in one lawsuit as many claims as it may have against Allstate.

Here, the plaintiff has accumulated thirty-six claims against Allstate and has chosen to join them in a single action. It is well settled that joinder of claims by a plaintiff against a single defendant need not be consistent or even related (Collins v. Telcoa Intern. Corp., 283 A.D.2d 128, 131 [2nd Dept. 2001]; see also Twitchell v. McKay, 78 A.D.2d125, 127 [4th Dept. 1980]). The purpose of this policy of liberal joinder is to prevent multiplicity of suits so that the aggrieved party can obtain complete relief in one action (Saunders v. Saunders, 54 Misc.2d 1081.[Supreme Court, Special Term, Kings County 1967]; See also George Cohen Agency Inc. v. Donald S. Perlman Agency Inc., 69 A.D.2d 725 [2nd Dept. 1979]). It is also intended to reduce the caseload of the courts and its personnel and avoid unnecessary expenditure of time, money and manpower.

However, if joinder of all the claims a plaintiff may have against a defendant would achieve an undesirable result, the court is well within its discretion, and defendant may so move, to sever the claims pursuant to CPLR §603 ( Anderson v. Singh 305 AD 2d 620 [2nd Dept. 2003]; see also Broome County v. Aetna Casualty & Sur. Co. 126 A.D.2d 818 [3rd Dept. 1987]). The decision whether to grant a severance pursuant to CPLR 603 is a matter of judicial discretion which will not be disturbed on appeal absent an abuse of discretion or prejudice to a substantial right of the party seeking severance (Finning v. Niagra Mohawk Power Corp., 281 A.D.2d 844 [3rd Dept. 2001]). In the case of Hempstead General Hospital v. Liberty Mutual 134 A.D.2d 569; [2nd Dept. 1987], a healthcare provider sued an insurance carrier as assignee of twenty-nine (29) claims to recover no-fault benefits allegedly unpaid and past due. All of the assignors had received treatment at the plaintiff facility, were insured by the same defendant insurance company, and were claiming breach of the no-fault provisions of their respective policies. The Appellate Division Second Department upheld the trial court’s discretionary use of joinder in Hempstead finding that there was a common question of law. The court stated that: [*3]

“The Supreme Court did not abuse its discretion in denying the defendant’s request to sever the 29 claims. The joinder of the claims is proper under CPLR 1002(a) since the claims arise out of a uniform contract of insurance and involve the interpretation of the same no-fault provisions of the Insurance Law. While the claims involved relate to separate accidents and individuals, it has been held that multiple transactions by multiple plaintiffs “do not lose their character as a series of transactions because they occurred at different places and times extending through many months” (Akely v. Kinnicutt, 238 NY 466,474). Since the issues herein involve a common question of law, such joinder is proper and severance was appropriately denied” (Hempstead General Hospital v. Liberty Mutual supra, 134 A.D.2d at 570.

Defendant Allstate relies on Mount Sinai Hospital a/a/o Jefferson v. Motor Vehicle Accident Indemnity Corporation, 291 A.D.2d 536 [2nd Dept. 2002], for the proposition that in no fault actions with multiple assignors, the claims must be severed where there are unrelated assignors with no common contract of insurance. While the Appellate Division Second Department in Mount Sinai did indeed make such a determination, it also reversed the lower court ruling which severed the plaintiff’s third and fourth cause of action. The court found that those claims involving one assignee seeking to recover no fault benefits and involved a common question of law. The court found that those claims were properly joined pursuant to CPLR §1002.

The case at bar is virtually indistinguishable from Hempstead, but for the number of claims brought by the plaintiff. Plaintiff herein alleges that each assignor had either purchased or was covered by a contract of automobile liability insurance from the defendant and each of them assigned their rights to receive no fault benefits under that contract to the plaintiff. Thus, defendant’s reliance on the Mount Sinai decision in support of its application for severance is misplaced.

Insurance Law §5106(a) imposes upon insurers a prescribed time frame for settling bodily injury claims covered by a policy of bodily injury liability insurance. It provides in pertinent part:

Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney`s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.

At its core, plaintiff’s cause of action is for a breach of contract contrary to the requirements of Insurance Law §5106(a). Plaintiff’s verified complaint alleges defendant’s breach of the no fault provision of its insurance contract covering each assignor. The alleged facts provide the requisite series of transactions or voluntary course of dealings needed to support the joinder of the claims in a single action.

Defendant argues that if severance is denied, it will fall victim to undue prejudice caused [*4]by the voluminous amount of litigation which accompanies such a high number of claims. The court sees no apparent, logistical difficulties in preparing a defense to these claims such that the defendant would be prejudiced by going forward with the instant proceedings. In this age of sophisticated technology, the defendant should be able to instantly gather any files or documents necessary to the defend the action because these items are within the defendant’s custody and control. Similarly defendant should be able to communicate with or summon at will any employee needed for their defense. Moreover, it is more likely that defendant would suffer greater prejudice defending thirty-six (36) claims in potentially numerous venues when one considers the cost of separate filing fees, pre-trial preparation costs and duplication of effort to resolve a common question of law. Defendant’s allegations of prejudice are unpersuasive. The court finds much more convincing plaintiff’s simple argument that the defendant has ample resources available to muster a defense.

Defendant also argues that failure to sever the claims will lead to jury confusion. Defendant cites Doll v. Castiglione 86 A.D.2d 711 [3rd Dept. 1982] and Bender v. Underwood, 93 A.D.2d 747 [1st Dept. 1983] as authority for this contention. Both cases are distinguishable from the case at bar. In Doll, the plaintiff attempted to join two claims arising from two separate traffic accidents on separate days, months apart against two separate defendants. There was no commonality between the claims apart from the fact they both involved auto collisions and a single plaintiff. In the Bender case, six plaintiffs attempted to join in one action claiming negligence and medical malpractice against a single defendant. However, unlike the case at bar, there was no commonality among the claims other than that each had undergone a similar procedure by the same defendant. While the court acknowledged that some common issues of law or fact were present, it also found that individual issues concerning particular circumstances applicable to each plaintiff predominated so as to preclude the direction of a joint trial. The court went on to state that:

“Although it is claimed that each plaintiff underwent the same implantation process and was allegedly subjected to the same basic type of malpractice, clearly, each treatment was separate and distinct, involving different plaintiffs, each with individual medical histories” (Bender v. Underwood, supra, 93 A.D.2d at 748).

The sole link between the plaintiffs in the Bender case is that they all alleged a similar negligent practice by the same defendant. However, there was no common contract between the defendant and the several plaintiffs, nor was there even evidence that the negligence or the procedures were identical. Furthermore, the central proposition of the case was that severance was proper to avoid prejudice; jury confusion was merely an ancillary concern of the court in issuing its ruling.

This court finds that the analysis of the Appellate Division Second Department in Hempstead , upholding the joinder of twenty nine (29) claims on facts nearly identical to the case at bar, permits the discretionary joinder of plaintiff’s thirty-six (36) claims against the defendant. This court does not find that an additional seven claims will produce the undesirable effect expressed by the defendant.

Defendant also contends that if the court severs plaintiff’s complaints, they would fall below the minimum monetary jurisdictional limit of the Supreme Court and thus warrant dismissal. The New York State Supreme Court is the State’s only court of general jurisdiction, [*5]retaining nearly the entire jurisdiction conferred upon it by the constitution. This encompassing jurisdiction is limited in only two instances; those cases over which Congress has conferred exclusive jurisdiction on the Federal Courts, and actions against the State, which the New York Legislature has declared the exclusive domain of the Court of Claims. Thus no threshold minimum monetary amount exists for subject matter jurisdiction in the Supreme Court as it does in the Federal Courts. Nor is there a maximum monetary limit as is proscribed for the New York City Civil Court. And despite the fact that it is the policy of this State to have a money action brought in the lowest court jurisdiction competent to entertain it, the fact that such a forum exists does not divest the Supreme Court of its original jurisdiction [D. Siegel, New York Practice, 3rd ed. §12 (1999)] This policy is effectuated by certain penalties and incentives delineated in CPLR §8102, which states that a plaintiff is not entitled to costs:

“In an action brought in the Supreme Court in a county within the city of New York which could have been brought, except for the amount claimed, in the civil court of New York, unless he shall recover six thousand dollars or more.” CPLR §8102(1).

A similar restriction regarding disbursement of costs adheres in the Supreme Court outside of the city of New York, but with a substantially lower recovery requirement of five hundred dollars. CPLR §8102(2). In sum, the defendant’s request to dismiss is improper under any circumstances, because this court is not deprived of its subject matter jurisdiction whether the matters remain joined or are severed.

Based on the foregoing, defendant’s motion to sever and dismiss plaintiff’s complaint is denied. This constitutes the decision and order of this court.

Dated: August 2, 2004

_____________________________

J.S.C.