Supreme Court, New York County

101885/12

Appearances:

Attorneys Plaintiff: Jason Tenenbaum, P.C.

595 Stewart Avenue Suite 400

Garden City, NY 11530

Tele. No. (516) 750-0595

Attorneys Defendant: Hilda Miranda, Pro Se

3438 110th Street Apt. A

Corona, NY 11368

Tele. No. (None Listed)

Louis B. York, J.

The following papers, numbered 1 towere read on this motion for Default Jgmt.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ____________________________

Answering Affidavits — Exhibits ________________________________________________________ [*2]

Replying Affidavits ___________________________________________________________________

Cross-Motion:[ ] Yes[ ] No

This is a motion seeking a declaratory judgment on default against defendants Miranda, Elmhurst United Medical, P.C., Grand Medical Supply, Inc., McKay, New York Hospital of Queens, NYHMCQ Surgery, Quality Psychological Services, P.C., and Diagnostic Medicine, P.C. and against appearing defendants Flushing Hospital and Medical Center, Kath Medical, P.C., and Shara Acupuncture, P.C. A judgment is granted against all of the defendants stating that they are not entitled to No-Fault benefits because of the failure of defendant Hilda Miranda to attend IMES.

Hilda Miranda was allegedly involved in an automobile accident on December 8, 2008, and asserted a claim to plaintiff American Transit Insurance Company. Plaintiff sought services from the defendants and assigned her No-fault benefits to them. The plaintiff insurance company scheduled two IMES with Ms. Miranda. She defaulted in appearing at both and, therefore, plaintiff denied all of the defendants’ claims. (Copies of the scheduling letters and denial of benefits are contained in Exhibit 3 of the Order to Show Cause.

The defendants, through the affirmation of their attorney, have sought to defeat plaintiff’s arguments on a number of spurious grounds, including that this motion is premature as it deprives defendants of the ability to gather information to defeat this motion, that plaintiff failed to prove that it sent letters to Miranda and that defendant Miranda failed to appear at the two scheduled IMES, and that the plaintiff disclaimed too late.

To defeat a motion for summary judgment, defendant must come forward with legally admissible evidence (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mehlman v Montifiore, 98 Ad2d 107, 946 NYS2d 27 [1st Dept 2012]).

Defendants produced no legal evidence challenging plaintiff’s evidence. Defendants’ attorney, who had no first-hand knowledge of anything merely attempted to unsuccessfully poke holes in plaintiff’s proof. In order to obtain depositions to obtain information to defeat summary judgment, they must set forth specifically the information they seek, not merely that they need further discovery without asserting anything more.

A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.

(Bailey v New York City Transit Authority, 270 AD2d 156, 157, 704 NYS2d 502 [1st Dept 2000]). [*3]

As to the letters that were challenged as lacking proof that they existed and were mailed, copies of those letters were annexed as exhibits to plaintiff’s moving papers and the manager of plaintiff’s mail room testified as to the procedure for mailing letters and packages. Defendant also asserted a number of decisions holding that a late declining of coverage will not uphold such a rejection. However, this is not the law in the First Department where, as here, the assignor has failed to appear at designated IMES, a condition precedent to the formation of the policy (Unitron Advantage Ins. Co. v Bayshore Physical, 82 AD3d 559, 918 NYS2d 473 [1st Dept 2011]). Such a void contract cannot be assigned, even if the insurer fails to reject a claim at a later time than the statute prescribed 30-day period (Central General Hospital v Chubb, 90 NY2d 195, 659 NYS 2d 246 [1997]). The principles of Unitron and Chubb continue to be followed in recent cases in the First Department, See, eg., Praetorian Ins. Co. v Johnson, 2012 WL2143766 [Sup Ct NY County 2013]).

Accordingly, summary judgment is awarded against the answering defendants and default judgments are awarded against the non-appearing defendants.

Neither defendant Miranda nor any of her assignees may recover from the insurer American Transit Insurance Company for the accident that occurred on December 8, 2008.

Settle Declaratory Judgment awarded against the defaulting and appearing defendants.

Dated: December 12, 2013Enter:

_______________________

Louis B. York, J.S.C.

Check one:FINAL DISPOSITIONNON-FINAL DISPOSITION

[*1]

Supreme Court, New York County, October 8, 2013

APPEARANCES OF COUNSEL

Law Offices of James F. Sullivan, P.C., New York City (Giovanna Tuttolomondo of counsel), for plaintiff.

Law Offices of Robert E. Dash, P.C., Melville (Melissa R. Abraham-Lofurno of counsel), for Stand-Up MRI of the Bronx, P.C., defendant.

I. Background

Plaintiff moves for a default judgment against all defendants except Five Boro Psychological and Licensed Master Social Work{**45 Misc 3d at 173} Services, PLLC, Lincoln Medical and Mental Health Center, New York City Health and Hospitals Corporation, Stand-Up MRI of the Bronx, P.C., and Transcare Ambulance Services. (CPLR 3215.) Plaintiff moves for summary judgment against Stand-Up MRI. (CPLR 3212 [b].) On each ground, against both Stand-Up MRI and the remaining nine defendants, plaintiff’s motion seeks a judgment declaring that plaintiff owes no duty to compensate them pursuant to Insurance Law § 5103 for expenses incurred from a collision November 15, 2009, involving defendant Curry and a motor [*2]vehicle for which plaintiff issued an insurance policy. (CPLR 3001, 3212 [b]; 3215 [e].) For the reasons explained below, the court denies all the relief sought by plaintiff’s motion.

Plaintiff bases both prongs of its motion on Curry’s nonappearance for an examination under oath (EUO), to which plaintiff is entitled under the policy. (See 11 NYCRR 65-1.1 [d].) The policy’s mandatory personal injury protection provisions condition the insurer’s payment of a claim on “full compliance with the terms of this coverage.” (Id.) Upon the insurer’s request, “the eligible injured person or that person’s assignee or representative shall . . . as may reasonably be required submit to examinations under oath . . . .” (Id.)

II. Plaintiff Scheduled the EUO at Reasonably Convenient Times

[1] 11 NYCRR 65-3.5 (e) requires that an EUO be “held at a place and time reasonably convenient to the applicant” for insurance coverage. Plaintiff scheduled Curry’s EUO at two different times on different days of the week, both during business hours. Although business hours may be inconvenient for applicants who work during those hours, section 65-3.5 (e) also required plaintiff to notify Curry, as it did, that she would be reimbursed for any earnings lost by complying with the EUO request. Plaintiff notified her further that, if she advised plaintiff that the scheduled time was in fact inconvenient, plaintiff would reschedule the EUO. In light of these available accommodations, and absent any notice from Curry that the scheduled time was inconvenient, the scheduling during business hours was reasonable.

III. The Missing Evidence

[2] Yet 11 NYCRR 65-3.5 (e) requires further that plaintiff’s request for the EUO, to establish Curry’s or her assignee’s{**45 Misc 3d at 174} claim, “must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.” Nowhere do plaintiff’s admissible documents or its witnesses, including the claims representative assigned to defendants’ claims for coverage and a supervisor of plaintiff’s legal department, responsible for EUO requests, indicate any justification, need, or explanation for Curry’s EUO. The director of plaintiff’s special investigations unit (SIU) attests simply that it “was requested to conduct an investigation” of the motor vehicle collision in which Curry was involved. (Aff in support of Giovanna Tuttolomondo, exhibit J, ¶ 6.) “As part of SIU’s investigation,” an SIU investigator “attempted to examine the claimant, CHRISTINA CURRY, under oath.” (Id.)

Moreover, even though only four months elapsed between when Curry provided her address on her application for insurance coverage and plaintiff mailed its EUO requests to that address, no witness attests that Curry did not notify plaintiff of an address change in the interim. Nor does plaintiff present any evidence that the applicant was notified of any obligation to inform the insurer of her change in address, particularly when she has assigned her rights to insurance benefits to her medical care providers and retains no more interest in obtaining benefits paid to her. This incomplete record leaves a question whether plaintiff mailed its EUO requests to Curry’s current address and whether she ever received them.

More importantly, no witness attests to Curry’s nonappearance at either of the scheduled EUOs. The director of plaintiff’s SIU just lays the foundation for the admissibility of business records that he claims show her nonappearances. While these records may be admissible, plaintiff does not present them. The SIU director’s recitation of their contents is hearsay. (E.g. People v Joseph, 86 NY2d 565, 570 [1995]; Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 [1st Dept 2008]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2d Dept 2004]; Wagman v Bradshaw, 292 AD2d 84, 87-88 [2d Dept 2002]; see Giordano v Berisha, 45 AD3d 416, 417 [1st Dept 2007]; Washington v Montefiore Med. Ctr., 9 AD3d 271, 272 [1st Dept 2004]; Marina Towers Assoc. v National States Elec. Corp., 203 AD2d 49, 50 [1st Dept 1994].)

IV. Conclusion

The absence of justification for the EUO as required by 11 NYCRR 65-3.5 (e) and of admissible evidence that the eligible injured person Curry actually failed to appear for the EUOs{**45 Misc 3d at 175} requested by plaintiff (see 11 NYCRR 65-1.1 [d]), precludes a summary declaratory judgment to plaintiff at this stage. (Ahead Realty LLC v India House, Inc., 92 AD3d 424, 425 [1st Dept [*3]2012]; Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 100-101 [1st Dept 2009]; Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 254 [1st Dept 2006]; see United States Fire Ins. Co. v American Home Assur. Co., 19 AD3d 191, 192 [1st Dept 2005]; 319 McKibben St. Corp. v General Star Natl. Ins. Co., 245 AD2d 26, 29-30 [1st Dept 1997].) Absent a showing of plaintiff’s compliance with the governing regulation (11 NYCRR 65-3.5 [e]), and Curry’s noncompliance with the regulations and policy (11 NYCRR. 65-1.1 [d]; 65-3.5 [e]), plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI (CPLR 3212 [b]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]; Chubb Natl. Ins. Co. v Platinum Customcraft Corp., 38 AD3d 244, 245 [1st Dept 2007]; Atlantic Mut. Ins. Co. v Joyce Intl., Inc., 31 AD3d 352 [1st Dept 2006]), or a default judgment as sought against the nine other defendants. (CPLR 3215 [f]; Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]; Martinez v Reiner, 104 AD3d 477, 478 [1st Dept 2013]; Utak v Commerce Bank Inc., 88 AD3d 522, 523 [1st Dept 2011]; Mejia-Ortiz v Inoa, 71 AD3d 517 [1st Dept 2010].)

Consequently, the court denies plaintiff’s motion for a default declaratory judgment and for a summary declaratory judgment. (CPLR 3001, 3212 [b]; 3215 [f].) This decision constitutes the court’s order.

Supreme Court, New York County

109003/11

Plaintiff:

Law office of James F. Sullivan

52 Duane Street, 7th Floor

New York, New York 10007

Defendant:

Melanie B. Nolan

80 Marcus Drive

Melville, New York 11747

Jazmine L. Rodriguez – pro se

351 Chester Street, Apt. 2F

Brooklyn, New York 11212

The Rybak Law, PLLC – for Deng Acupuncture, Compas Medical, New Way Medical,

and T & J Chiropractic

1810 Voorhies Avenue, 3rd Floor

Brooklyn, New York 11235

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the “Medical Provider Defendants”). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.

Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff’s motion for summary judgment.

DISCUSSION

Default Judgment

CPLR 3215 provides that “[w]hen a defendant has failed to appear, . . . the plaintiff may seek a default judgment against him. . . . The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v Brannigan, 232 AD2d 206, 206 (1st Dep’t 1996). [*2]

Here, plaintiff’s motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff’s complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff’s motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff’s motion.

Summary Judgment

The Court of Appeals has stated, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Mfrs.,Inc., 46 NY2d 1065, 1067-1068 (1979); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Under the above standard, plaintiff’s motion for summary judgment is denied. In support of its motion, plaintiff proffers the affirmation of its attorney, Kaitlin Williams, which states alleged terms of the insurance policy requiring the eligible injured person to submit to examinations under oath at the reasonable request of the insurance company. However, such policy was not annexed to the affirmation, or provided in support of plaintiff’s motion. While plaintiff’s attorney’s affirmation conclusorily states certain condition precedents required by the insurance policy, which were allegedly breached by defendant Rodriguez, such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d at 1067. It is well settled that a “bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep’t 1981), aff’d 54 NY2d 715 (1981). As such, plaintiff has failed to establish prima facie entitlement to summary judgment as a matter of law. Moreover, the affidavits with regards to mailing and service, attached to petitioner’s motion, do not establish, as a matter of law, the terms of the insurance policy, or that defendant Rodriguez breached such terms. Thus, plaintiff’s motion for summary judgment is denied, without prejudice to move for summary judgment within 60 days of the filing of the note of issue, upon completion of discovery.

Accordingly, it is

ORDERED that the portion of plaintiff’s motion seeking a default judgment is granted, as against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C.; plaintiff shall settle order/judgment upon notice, in accordance with 22 NYCRR 202.48, returnable to room 119A; and it is further [*3]

ORDERED that the portion of plaintiff’s motion for summary judgment is denied, without prejudice to move after the completion of disclosure in accordance with this decision/order; and it is further

ORDERED that, within thirty days of entry, provider defendants shall serve a copy of this order upon all parties, together with notice of entry; and it is further

ORDERED that documentary discovery shall be exchanged and completed within 30 days; and it is further

ORDERED that depositions of the parties to commence on or before November 25, 2013, and completed on or before December 31, 2013; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, January 9, 2014 at 10:00 A.M., in Room 428, 60 Centre Street, New York, NY ^[FN1]

This constitutes the Decision and Order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

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Footnotes

Footnote 1: The October 17, 2013 conference is adjourned to January 9, 2014 at 10:00 A.M.

Supreme Court, New York County

150235/09

Plaintiff:

Galvano & Xanthakis, PC

150 Broadway, Ste 2100

New York, New York 10038

Defendants:

Brand Glick & Brand, PC

600 Old Country Rd, Ste 440

Garden City, New York 11530

Doris Ling-Cohan, J.

The following papers, numbered 1 – 7 were considered on this motion and cross-motion for summary judgment:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2, 3,

Answering Affidavits — Exhibits ________________________________

Replying Affidavits ____________________________________________7

Cross-Motion:[ ] Yes[ X ] No4, 5, 6

Upon the foregoing papers, it is ordered that this motion and cross-motion are decided as indicated below.

BACKGROUND

Plaintiff Calvin Alford commenced this action against defendant Fiduciary Insurance Company of America (Fiduciary Ins.) seeking no-fault benefits for injuries he sustained in an automobile accident. The facts of this action are uncontested. Plaintiff, a resident of the State of New York, did not own a car, nor did he reside with anyone who owned a car. In February 2009, plaintiff, a pedestrian, was struck, while crossing the street, by a vehicle insured by defendant Fiduciary Ins. Plaintiff was taken from the scene, to the hospital, by ambulance. Subsequently, plaintiff, and his counsel, attempted to obtain the identity of the vehicle that struck him, but was unable to ascertain such information until June 1, 2009. Nonetheless, in April 2009, plaintiff filed a timely application for benefits with the Motor Vehicle Accident Indemnification Corporation (MVAIC), and continued his efforts to discover the identity of the vehicle that struck him. On June 1, 2009, MVAIC responded to plaintiff’s application for no-fault benefits, stating that the vehicle that struck plaintiff was insured by defendant Fiduciary Ins. Through counsel, [*2]plaintiff immediately contacted defendant Fiduciary Ins., by telephone, to file a no-fault application, claim number 20082280, which was denied on June 3, 2009 pursuant to 11 NYCRR 65-1.1.

Such denial stated that plaintiff did not provide written notice of the claim, and that such claim was untimely. The denial further states that the “late notice denial will be reconsidered if the injured party submits written proof that provides clear and reasonable justification for the failure to comply with the notice requirement”. Notice of Motion, Exh. K, Denial of Claim Form, p. 1. Plaintiff unsuccessfully sought a reconsideration of the denial by telephone on several occasions. On July 17, 2009, plaintiff submitted a written request for reconsideration detailing the inability to ascertain the identity of the offending vehicle until June 1, 2009, when plaintiff received a response from MVAIC. Thereafter, plaintiff received no response to his written request for reconsideration, and commenced this action on December 10, 2009.

Plaintiff now moves for summary judgment against defendant Fiduciary Ins., declaring that defendant Fiduciary Ins. must provide no-fault benefits to plaintiff. Defendant Fiduciary Ins. cross-moves for summary judgment dismissing the summons and complaint.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Here, there is no dispute as to the facts. Plaintiff argues that after numerous attempts, made by himself and his counsel, he was unable to obtain a copy of the police report, or any other document, to ascertain the identity of the vehicle that struck him. In support, plaintiff proffers, inter alia, his affidavit detailing his attempt to obtain the police report, as well as documents requesting such police report.

Defendant Fiduciary Ins., in arguing that the summons and complaint must be dismissed, contends that timely notice of claim was not provided, that written notice was not provided until July 17, 2009, and that it is not reasonable for plaintiff to wait over two months to file an application with MVAIC merely because plaintiff was attempting to obtain a copy of the police report. Defendant Fiduciary Ins. also argues that plaintiff lacks standing to bring the instant action, as plaintiff has assigned his rights for recovery of medical expenses to his medical provider and that plaintiff has not provided proof of payment for the medical bills to the medical provider. [*3]

“It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer”. Berman v County-Wide Ins. Co., 819 NYS2d 208 (Civil Ct., Queens Cty. 2006). See also Hartford Accident & Indemnity Co. v CNA Ins. Companies, 99 AD2d 310, 314 (1st Dep’t 1984). Here, plaintiff has shown entitlement to summary judgment as a matter of law. While defendant Fiduciary Ins. is correct in asserting that plaintiff’s notice of claim was technically late, 11 NYCRR 65-3.5(1) specifically states that, for the standards of review where applicants have provided late notice, “such standards shall include…appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer.” Plaintiff, a pedestrian hit by a vehicle while crossing the street, was rushed from the scene by ambulance. Plaintiff has documented his diligent attempts, and those of his counsel, in obtaining the identity of the vehicle that struck him. The Appellate Division, First Department, has held that “notice by an injured claimant is not judged by the same standard as governs notice by the insured”. Id. Thus, plaintiff has established entitlement to summary judgment.

Defendant Fiduciary Ins. argues that plaintiff failed to provide written notice. However, defendant Fiduciary Ins.’s denial of plaintiff’s oral claim specifically stated that plaintiff’s late notice would be reconsidered upon submission of a written claim. It is undisputed that plaintiff submitted such written notice. Defendant Fiduciary Ins., nevertheless, failed to reconsider plaintiff’s claim. Thus, defendant’s argument that plaintiff failed to timely provide written notice is unpersuasive. Defendant Fiduciary Ins.’s remaining argument, based on standing, is similarly inapposite. Aside from defendant Fiduciary Ins.’s conclusory allegation that plaintiff assigned his rights for recovery of medical expenses to his medical provider, defendant Fiduciary Ins. has failed to provide any evidence of such alleged assignment. The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). Thus, defendant Fiduciary Ins.’s cross-motion for summary judgment must be dismissed.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment against defendant Fiduciary Ins. is granted in its entirety, and the Clerk is directed to enter judgment accordingly in favor of plaintiff; and it is further

ORDERED, ADJUDGED and DECLARED that the defendant Fiduciary Ins. Must provide no-fault benefits, and provide coverage, to plaintiff with regards to the February 2009 automobile accident; and it is further

ORDERED that defendant Fiduciary Ins.’s cross-motion for summary judgment is denied; and it is further

ORDERED that the issue of the amount of no-fault benefits is respectfully referred to a Special Referee in accordance with CPLR §4317(b), to hear and determine; and it is further

ORDERED that within 45 days of entry of this order, plaintiff shall serve a copy of this order with notice of entry upon defendant Fiduciary Ins., as well the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a Special Referee. [*4]

This is the decision and order of the court.

Dated:

DORIS LING-COHAN, J.S.C.

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[*1]

Civil Court of the City of New York, New York County, June 24, 2013

APPEARANCES OF COUNSEL

Dodge & Monroy, P.C., Melville, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City, for plaintiff.

{**40 Misc 3d at 788} OPINION OF THE COURT

James E. d’Auguste, J.

Defendant Utica Mutual Insurance Company seeks summary judgment dismissing plaintiff New Century Medical Diagnostics, P.C.’s no-fault benefits action.

The parties’ submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims{**40 Misc 3d at 789} based upon New Century’s failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath [*2]represents a failure to comply with a condition precedent to coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) New Century has not denied its nonappearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State Insurance Department^[FN*] opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. (Ops Gen Counsel NY Ins Dept No. 09-06-10 [June 2009, Alexander Tisch, Esq.].) The Insurance Department, however, did not opine that an insurer’s attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer’s demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century’s claims.

Accordingly, Utica’s motion for summary judgment dismissing the complaint is granted.

Footnotes

Footnote *: The Insurance Department is now a part of the Department of Financial Services.

[*1]

Civil Court of the City of New York, New York County, January 17, 2012

APPEARANCES OF COUNSEL

Leon Kucherovsky, New York City (Matthew Viverito of counsel), for plaintiff. Short & Billy P.C., New York City (Mark Puleo of counsel), for defendant.

{**35 Misc 3d at 583} OPINION OF THE COURT

Andrea Masley, J.

Plaintiff Stephen Matrangolo, D.C., P.C., a chiropractic practice, commenced this action in June 2007 for the recovery of no-fault benefits for services rendered to assignors Tina Espinozo-Hernandez and Edgar Hernandez for injuries arising from a car accident in December of 2006. The answer dated August 17, 2007 consists of six affirmative defenses including: (2) plaintiff lacks standing; (4) services provided by an independent contractor; and (6) the referral was an improper self-referral. After trial on June 9, 2011, the court reserved decision and the parties were directed to submit posttrial memoranda on issues raised but not resolved at trial.^[FN*] [*2]

{**35 Misc 3d at 584}For the following reasons, the court finds that Public Health Law § 238-a does not apply to the electromuscular testing provided here and thus is not a bar to Dr. Matrangolo’s claim. However, based on the testimony and evidence before it, the court finds that Dr. Matrangolo is not entitled to compensation for services provided by Dr. Brawner.

The parties stipulated at trial to all 11 outstanding health insurance claim forms for electromuscular testing services rendered in the amount of $2,168.82 for Ms. Espinozo-Hernandez and $2,807.64 for Mr. Hernandez. All services for assignor Tina Espinozo-Hernandez were rendered on December 11, 18, and 27 of 2006. For assignor Edgar Hernandez, services were rendered on December 18 and 27 of 2006, and on January 3 and 8 of 2007. Maria Ingrassia, Dr. Matrangolo’s medical biller, the sole witness, testified for plaintiff that Baldwin Medical referred the assignors to Dr. Matrangolo for neuromuscular testing, and that bills for plaintiff’s services were timely submitted and remain unpaid. Defendant stipulated to plaintiff’s prima facie case and asserted, as affirmative defenses, that the referral to Dr. Matrangolo constitutes a violation of Public Health Law § 238-a and that plaintiff lacks standing since it is billing for services provided by a nonparty physician. Plaintiff argued that defendant has failed to rebut its prima facie case and that Public Health Law § 238-a applies to physicians but not to chiropractors such as himself.

Defendant sought to introduce a lease between plaintiff and Baldwin Medical over objection from plaintiff. Defendant sought sanctions for plaintiff’s noncompliance with its May 13, 2011 subpoena ad testificandum and duces tecum of Dr. Matrangolo which seeks the patient file for each AAO; the leases between Dr. Matrangolo and the referring provider for 2006, 2007 and 2008; records of payments made by Dr. Matrangolo to the referring provider; all correspondence between Dr. Matrangolo and the referring provider; all W-2s or 1099s issued by Dr. Matrangolo to the technician who administered the tests in 2006, 2007 and 2008; and all documents regarding the financial relationship between plaintiff and the referring provider.

On cross-examination, Ms. Ingrassia identified Dr. Matrangolo’s signature on the lease and defendant offered it into evidence as an admission against interest. Had plaintiff responded{**35 Misc 3d at 585} to defendant’s trial subpoena, defendant could have offered the lease as a business record. However, by refusing to comply and not moving for relief from the subpoena, plaintiff robbed defendant of the opportunity to establish the requisite foundation. (CPLR 4518.) The lease had been identified by plaintiff in response to interrogatories which had been court ordered. Alternatively, defendant asked the court to make an adverse inference against plaintiff based on plaintiff’s failure to respond to the trial subpoena and allow the lease into evidence.

The witness also identified Dr. Brawner as a doctor who is associated with Baldwin Medical but who is not an employee of Dr. Matrangolo.

Defendant read plaintiff’s responses to interrogatories, as to the electromuscular testing of the AAOs, into the record. As to who administered the test to the AAOs, plaintiff responded Dr. Josephine Brawner. In response to the question how many people do the testing for Dr. Matrangolo, plaintiff responded Dr. Brawner. At trial, plaintiff objected to the interrogatories as evidence because plaintiff’s counsel explained that Dr. Matrangolo made a mistake when he responded to the interrogatories; an employee not Dr. Brawner administered the tests here. The [*3]court struck plaintiff’s counsel’s testimony. The court rejects all of plaintiff’s attempts to change plaintiff’s discovery responses in its posttrial brief. Plaintiff did not supplement its discovery or issue a correction. The time for testimony and evidence was at trial.

Exhibit A in evidence is a lease between Baldwin Medical Services P.C. and Dr. Stephen Matrangolo Corporation from January 1, 2007 to December 31, 2008. This lease was introduced at trial by defendant over plaintiff’s objection. Plaintiff produced this lease in discovery. Indeed, plaintiff annexed the lease to plaintiff’s posttrial memorandum as evidence of its compliance with discovery. Accordingly, there is no reason to believe the lease is not trustworthy. Plaintiff’s objection to admission of the lease is curious since the existence of a valid lease in effect from January 1, 2007 establishes a safe harbor for plaintiff for those services rendered in 2007. However, having failed to produce in discovery or at trial a lease for 2006, plaintiff would not be entitled to the protection of Public Health Law § 238-a (5) (b) (i). Therefore, if Public Health Law § 238-a applied to plaintiff, then he would be entitled to reimbursement only for those services rendered after January 1, 2007. Accordingly, it is unnecessary to otherwise address the subpoena issues.{**35 Misc 3d at 586}

In its posttrial memorandum, defendant argues that Dr. Matrangolo rents space from the referring provider Dr. Brawner for purposes of rendering services for which he is referred, and that this relationship in and of itself constitutes an improper referral under Public Health Law § 238-a. The absence of a lease for the 2006 calendar year, according to defendant, constitutes evidence of an improper referral. Lastly, defendant argues that plaintiff lacks standing since he billed for services rendered by Dr. Brawner, a nonparty physician.

Public Health Law § 238-a prohibits a practitioner from making a referral for services to a provider when the practitioner or an immediate family member of such practitioner has a “financial relationship” with the provider. (Stephen Matrangalo, DC, P.C. v Allstate Ins. Co., 31 Misc 3d 129[A], 2011 NY Slip Op 50517[U] [App Term, 1st Dept 2011].) A financial relationship is defined in Public Health Law § 238 (3) as “an ownership interest, investment interest or compensation arrangement.” A compensation arrangement is defined as “any remuneration between a practitioner . . . and a health care provider.” (Public Health Law § 238-a [5] [a].) The statute is clear that compensation does not include payments for the rental or lease of office space if there is a written agreement signed by the parties, for a rental term of at least one year, consistent with fair market value in an amount that does not vary with “volume or value of any referrals of business between the parties.” (Public Health Law § 238-a [5] [b] [i] [A].)

A plain reading of the statute supports plaintiff’s interpretation that, as a chiropractor, his services fall outside the ambit of Public Health Law § 238-a. Public Health Law § 238-a provides:

“1. (a) A practitioner authorized to order clinical laboratory services, pharmacy services, radiation therapy services, physical therapy services or x-ray or{**35 Misc 3d at 587} imaging services may not make a referral for such services to a health care provider authorized to provide such services where such practitioner or immediate family member of such practitioner has a financial relationship with such health care provider.

“(b) A health care provider or a referring practitioner may not present or cause to be presented to any individual or third party payor or other entity a claim, bill, or other demand for payment for clinical laboratory services, pharmacy services, radiation therapy services, physical [*4]therapy services or x-ray or imaging services furnished pursuant to a referral prohibited by this subdivision.

“2. Subdivision one of this section shall not apply in any of the following cases:

“(a) practitioners’ services—in the case of practitioners’ services provided personally by, or under the supervision of, another practitioner in the same group practice as the referring practitioner;

“(b) in-office ancillary services—in the case of health or health related items or services (i) that are furnished personally by the referring practitioner, personally by a practitioner who is a member of the same group practice as the referring practitioner, or personally by individuals who are employed by such practitioner or group practice and who are supervised by the practitioner or by another practitioner in the group practice; and in a building in which the referring practitioner, or another practitioner who is a member of the same group practice, furnishes practitioners’ services unrelated to the furnishing of such items or services, or in the case of a referring practitioner who is a member of a group practice, in another building which is used by the group practice for the centralized provision of such items or services of the group; and (ii) that are billed by the practitioner performing or supervising the services, by a group practice of which such practitioner is a member, or by an entity that is wholly owned by such practitioner or such group practice.” (Emphasis added.)

Public Health Law § 238 (11) defines “Practitioner” as “a licensed or registered physician, dentist, podiatrist, chiropractor, nurse, midwife, physician assistant or specialist assistant, physical therapist, or optometrist.” (Emphasis added.)

Public Health Law § 238 defines each of the five enumerated “services”:

“1. ‘Clinical laboratory services’ shall mean the microbiological, serological, chemical, hematological, biophysical, cytological or pathological examination of materials derived from the human body, for the purposes of obtaining information for the diagnosis, prevention, or treatment of disease or the assessment of health condition . . .{**35 Misc 3d at 588}

“13. ‘X-ray or imaging services’ shall mean diagnostic imaging techniques which shall include but not be limited to the following:

“(a) Conventional x-ray or radiology.

“(b) Fluoroscopy.

“(c) Digital radiography.

“(d) Computed tomography.

“(e) Magnetic resonance imaging.

“(f) Nuclear imaging.

“(g) Ultrasonography.

“(h) Angiography.

“14. ‘Pharmacy services’ shall mean the preparing, compounding, preserving or, the dispensing of drugs, medicines and therapeutic devices on the basis of prescriptions or other legal authority.

“15. ‘Radiation therapy services’ shall mean the use of high energy x-rays, particles, or radiation materials for the treatment of cancer and other diseases.

“16. ‘Physical therapy services’ means physical therapy as defined by section sixty-seven [*5]hundred thirty-one of the education law.”

According to Education Law § 6731, “Physical therapy” is defined as

“a. The evaluation, treatment or prevention of disability, injury, disease, or other condition of health using physical, chemical, and mechanical means including, but not limited to heat, cold, light, air, water, sound, electricity, massage, mobilization, and therapeutic exercise with or without assistive devices, and the performance and interpretation of tests and measurements to assess pathophysiological, pathomechanical, and developmental deficits of human systems to determine treatment, and assist in diagnosis and prognosis.

“b. The use of roentgen rays or radium, or the use of electricity for surgical purposes such as cauterization shall not be included in the practice of physical therapy.” (Emphasis added.)

The service at issue here is “electromuscular testing,” which is not an enumerated service in Public Health Law § 238-a. Education Law § 6551 defines the practice of “chiropractic” as:

“1. The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion,{**35 Misc 3d at 589} or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

“2. a. A license to practice as a chiropractor shall not permit the holder thereof to use radio-therapy, fluoroscopy, or any form of ionizing radiation except X-ray which shall be used for the detection of structural imbalance, distortion, or subluxations in the human body.

“b. The requirements and limitations with respect to the use of X-ray by chiropractors shall be enforced by the state commissioner of health and he is authorized to promulgate rules and regulations after conferring with the board to carry out the purposes of this subdivision.

“c. Chiropractors shall retain for a period of three years all X-ray films taken in the course of their practice, together with the records pertaining thereto, and shall make such films and records available to the state commissioner of health or his representative on demand.

“3. A license to practice chiropractic shall not permit the holder thereof to treat for any infectious diseases such as pneumonia, any communicable diseases listed in the sanitary code of the state of New York, any of the cardio-vascular-renal or cardio-pulmonary diseases, any surgical condition of the abdomen such as acute appendicitis, or diabetes, or any benign or malignant neoplasms; to operate; to reduce fractures or dislocations; to prescribe, administer, dispense or use in his practice drugs or medicines; or to use diagnostic or therapeutic methods involving chemical or biological means except diagnostic services performed by clinical laboratories which services shall be approved by the board as appropriate to the practice of chiropractic; or to utilize electrical devices except those devices approved by the board as being appropriate to the practice of chiropractic. Nothing herein shall be construed to prohibit a licensed chiropractor who has successfully completed a registered doctoral program in chiropractic, which contains courses of study in nutrition satisfactory to the department, from using nutritional counseling,{**35 Misc 3d at 590} [*6]including the dispensing of food concentrates, food extracts, vitamins, minerals, and other nutritional supplements approved by the board as being appropriate to, and as a part of, his or her practice of chiropractic. Nothing herein shall be construed to prohibit an individual who is not subject to regulation in this state as a licensed chiropractor from engaging in nutritional counseling.” (Emphasis added.)

Not one of the enumerated “services” includes neuromuscular electrical testing or chiropractic services. The statute clearly bars Dr. Matrangolo as a “practitioner” from making a referral to a family member or entity in which he has a financial interest, but it does not bar a practitioner, such as Dr. Brawner, from referring a patient to Dr. Matrangolo for chiropractic services or testing that falls within the scope of chiropracty because chiropracty is not one of the five enumerated services in Public Health Law § 238-a.

“Public Health Law § 238-a has an obvious and salutary purpose: to prevent the provision of health care from being based on financial incentive rather than patient welfare and medical necessity.” (Matrangolo, as Assignee of David Fitzhugh v Progressive Cas. Ins. Co., Civ Ct, NY County, Dec. 1, 2010, index No. 52599/09.) It is clear from the legislative history that the legislature was concerned about physician investors making self-referrals to clinical laboratories, imaging services and physical therapy. (Mem of Assemblyman Richard N. Gottfried, 1992 NY Legis Ann, at 513; Governor’s Mem approving L 1992, ch 803, 1992 NY Legis Ann, at 515.) Pharmacies were added in 1993. (Governor’s Program Bill Mem approving L 1993, ch 443, 1993 NY Legis Ann, at 321.) Whether to include “chiropracty” or “electromuscular” testing as an enumerated service in Public Health Law § 238-a is a decision to be made by the legislature. Although the Public Health Law is not a bar to plaintiff’s claims, Dr. Matrangolo is not entitled to payment because the evidence before the court is that Dr. Brawner, not Dr. Matrangolo, provided the services. (A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d Dept 2005].) In the claim forms in evidence, plaintiff states that the tests were administered by Dr. Brawner.

Accordingly, it is ordered, that the case is dismissed with prejudice.

Footnotes

Footnote *: The purpose of the posttrial memoranda was to provide the parties an opportunity to explain the legal basis for arguments made during trial; not for the submission of additional testimony or evidence. Accordingly, the court rejects Dr. Matrangolo’s affidavit. The time for his testimony was at trial in response to defendant’s subpoena. Likewise, the court rejects defendant’s submission of examinations before trial of Dr. Matrangolo taken in other cases (e.g. June 5, 2008 transcript, without an index number, states that it was taken by order of Justice Lebedeff in Queens County Civil Court where the as assignee of [AAO] is Ashak Akram; and March 12, 2007, in 116 different matters for which the index numbers are not listed).

Civil Court of the City of New York, New York County

17035/05

Soraya Campbell, Esq. of Bruno Gerbino & Soriano LLP appeared in support of the motion

Christopher McCollum, Esq. appeared in opposition to the motion

O’Shea, J.

Plaintiff, a professional corporation, instituted this action to recover first-party, no fault benefits for services rendered to its assignor, Shonta Robinson, who was injured in an automobile accident on August 4, 2002. On or about October 28, 2002, plaintiff submitted three claims for payment totaling $14,929.08. On February 1, 2008, plaintiff was awarded summary judgment on its claims.

On December 17, 2008, plaintiff served a proposed judgment in the total amount of $55,090.03, which included statutory attorney’s fees and $39,151.85 in interest, which plaintiff calculated using compounded interest at the rate of 2% per month from the date defendant was required to pay or deny the claim (November 28, 2002) to the date of the proposed judgment (December 17, 2008). Shortly thereafter, on December 30, 2008, defendant paid the underlying claims in the amount of $14,929.08, along with the statutory attorneys fees in the amount of $850.00. Defendant then moved by order to show cause two weeks later seeking, inter alia, an order vacating or staying entry and execution of the judgment on the grounds that plaintiff [*2]miscalculated the interest. On May 18, 2009, four months after judgment was entered, a decision and order was issued staying “entry of this judgment . . . until the correct interest amount is added to the judgment.”

Sixteen months later, in September, 2010, plaintiff e-mailed defendant a copy of an amended application for judgment with interest in the amount of $40,238.48, calculated from April 5, 2005, the date the complaint was filed,^[FN1] to the date of the new proposed judgment. Plaintiff again used a compounded rate of 2% per month in calculating the interest.^[FN2] Nothing more happened. There is no record that the proposed amended judgment was ever entered by the Clerk or that plaintiff or defendant took any steps to challenge or compel entry of the newly proposed judgment or to lift the stay.

Three months later, on December 21, 2010, plaintiffs commenced enforcement proceedings on the original judgment. In its Execution With Notice to Garnishee, plaintiff stated as follows:

“[J]udgment was entered on January 7, 2009, . . . in the amount of $55,090.93, including costs, of which $57,391.12, together with interest from December 21, 2010, remains due and unpaid.”

One month later, on January 18, 2011, in a reprise of its January 2009 order to show cause, defendant moved for an order: (i) vacating or modifying the judgment; (ii) staying entry of the judgment; (iii) vacating or staying the execution of judgment; and (iv) staying execution of the judgment pending a hearing and determination of the motion. Defendant claims this relief on the grounds that (a) it was improper for plaintiff to seek execution of a judgment that was stayed and never entered by the Clerk; and (b) the interest calculation remains incorrect. Plaintiff opposes the motion on the grounds, inter alia, that the stay was self-executing and lifted when he served the amended application for judgment, and his calculations of interest are correct. The order to show cause initiating the instant motion provides that “pending the hearing and determination of this application, entry of judgment . . . is hereby stayed [and] pending the hearing of this application, any attempted enforcement of or execution on the judgment is hereby stayed. . . .”

In the exercise of its control over its judgments, a court may open them upon the application of anyone for sufficient reason in the furtherance of justice. Its power to do so is [*3]inherent and does not rely on any particular statute (Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]; Ladd v. Stevenson, 112 NY 325 [1889]). However such relief generally should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect (McKenna v. County of Nassau, 61 NY2d 739 [1984]). Correction of a miscomputation of interest constitutes just such an error (e.g. Kiker v. Nassau County, 85 NY2d 879 [1995][a mistake in assessing the amount of interest on a judgment may be corrected even after the appeals process has been completed, where the proper rate was clearly directed by statute]; see also Gaul v. Commercial Union Ins. Co., 268 AD2d 816 [3d Dep’t 2000]; Bauman v. Bauman, 200 AD2d 380 [1st Dep’t 1994]).

In recognition of the fact that the interest calculation was incorrect, on May 18, 2009, this Court granted Defendant a stay of the entry of the judgment until “the correct amount of interest is added to the judgment.” As the correct amount of interest has still not been added to the judgment, the May 18, 2009, stay remains in full force and effect. Accordingly, defendant’s new application for a stay of entry of the judgment is denied as unnecessary (see e.g., Med. Soc’y v. Serio, 99 NY2d 608 [2003]; Matter of Peter B., 2010 NY Slip Op 3920 [2d Dep’t 2010]).

Defendant’s motion to vacate or to modify the judgment is also denied. As defendant has not identified anything wrong with the judgment aside from the improper calculation of interest (which was already addressed in the prior motion), there is no reason to either vacate or modify it. However, Defendant’s motion for an order staying enforcement is granted. Until the judgment has properly been entered, there is nothing to enforce.

As for the calculation of interest itself, Plaintiff offers authority to suggest that he is entitled to compound interest, while Defendant argues that the interest should not be compounded. The “old” regulations found at 11 NYCRR § 65.15(h)(1) provided for interest at the rate of “two percent per month, compounded.” That regulation was superseded on April 5, 2002 by Insurance Department Regulations found at 11 NYCRR § 65-3.9(a) , which provides for “interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month.”

Citing Belt Parkway Imaging, P.C. v State Wide Ins. Co., 2010 NY Slip Op 52229U [2010]). Plaintiff contends that it is up to Defendant to show that the new regulations apply, a determination made with reference to the contents of the policy in effect at the time of the accident. As Defendant has not met that alleged burden, plaintiff argues that it is entitled to interest calculated under the old regulations. In opposition, Defendant contends that the contents of the policy in effect at the time are irrelevant to this inquiry. Citing to Circular Letter No. 9, dated April 9, 2002,^[FN3] Defendant asserts that only the notice of claim and proof of claim provisions are governed by the policy endorsement in effect at the time of the submission of the claim. Everything else is dictated by whether the claim was submitted before or after April 5, 2002.

Defendant’s interpretation finds support in the Court of Appeals determination in Medical [*4]Society v. Serio, 100 NY2d 854 [2003]). Describing the various aspects of the new regulations, the Court states as follows:

“Under the revised regulations, this interest is no longer to be compounded, as before, but is instead to be calculated as simple interest (11 NYCRR 65-3.9 [a])” (emphasis added)

See also Gokey v. Blue Ridge Ins. Co., 2009 NY Slip Op 50361U [Sup. Ct. Ulster Co. 2009]). This conclusion is further reinforced by the fact that the change in the interest calculation was reflective of the change in market conditions at the time. not on anything having to do with the insurance policy per se or its endorsement (see 2001-19 NY St. Reg. 17][noting, “The Department, by regulation, required compounding at a time of double-digit interest rates. In the current interest rate environment, compounding is not reflective of the financial market]; 2000-31 NY St. Reg. 19; 1999-16 NY St. Reg. 7). Plaintiff’s reliance on the determination by the Second Department in Belt Parkway Imaging, P.C. v State Wide Ins. Co., supra, is misplaced. There is no indication in the decision that the accident in question post-dated the inception of the new regulations. Accordingly, the interest in this case shall be calculated as simple not compound interest.

As for the proper term of the interest, Plaintiff contends that the term of the interest runs from the date of the commencement of this proceeding to the present, as interest was not tolled in the order staying execution of the judgment, while defendant argues that such an interpretation provides an inappropriate windfall to plaintiff. Defendant also argues that, in any event, plaintiff should not be entitled to accrual of interest past the date of the original judgment, as defendant paid the principal amount at that time.

On the subject of interest, the insurance regulations provide as follows:

(a) All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro rata basis using a 30-day month. 11 NYCRR § 65-3.9

The interest which accrues on overdue no-fault benefits at a rate of two percent per month is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply (East Acupuncture, P.C. v. Allstate Ins. Co., 61 AD3d 202 [2d Dep’t 2009]). Claimants are also required to act promptly. Failure to act promptly after a denial of claim results in a toll of the statutory interest provisions, for to do otherwise would reward a recalcitrant plaintiff with a windfall of punitive interest payments, and would contravene the legislative goal of promptly resolving no-fault claims ( see East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2d Dep’t 2009]; see also LMK Psychological Services, supra, 12 NY3d at 223-224).

Ordinarily prejudgment interest runs from the accrual of the claim or the occurrence of the damages until the date that a decision or verdict is made (see e.g., CPLR § 5001). However, in a no-fault context, regulations provide that where litigation is not commenced within 30 days of denial of the claim, interest is tolled until the date of commencement of the action (see 11 NYCRR 65-3-9[c]; see also LMK Psychological, supra, 12 NY3d at 223-224; Smith v. Nationwide Mut. Ins. Co., 211 AD2d 177 [4th Dep’t 1995][Insurance Law § 5106(a) supersedes the provisions for interest contained in CPLR 5002, 5003 and 5004]).The “closing” date for prejudgment interest ordinarily is the date of the decision rendering judgment (see CPLR § 5001[c] ). The actual entry of judgment occurs sometime later, and prejudgment interest also [*5]accrues between the rendering of judgment and the entry of judgment, and post-judgment thereafter (See CPLR §§ 5002 – 5004). In the case of Civil Court matters, CCA § 1401 requires the prevailing party to “prepare” the judgment within 30 days after the rendering of judgment by the Court, or the losing party may do so. This limitation is both short and precisely bounded so that the entry of judgment does not rely on the caprice or diligence of the prevailing party (see Henry Modell & Co. v. Minister, Elders & Deacons of the Reformed Protestant Dutch Church, 68 NY2d 456 [1986]).

Notwithstanding the requirement that judgment be prepared within 30 days of the rendering of judgment, plaintiff here waited ten months after judgment was rendered by Judge Mendez on February 1, 2008, before filing an application for judgment. Because the calculations of interest were incorrect, on May 18, 2009, the judgment was stayed to permit plaintiff the opportunity to correct the interest calculations. Two years have passed since the judgment was stayed and it has been three years since judgment was rendered. Yet, plaintiff contends that it is entitled to collect compounded interest at the rate of 2% per month throughout the entire period of its inaction, a contention with which this Court disagrees.

In February of 2010, the Second Department declined to pass on the issue of whether the accrual of interest may be tolled where it is found that there has been an unreasonable delay in the entry of judgment (SZ Med., P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 20044 [App. Term Second Dep’t 2010]). While the majority noted that it shared the dissent’s concerns with regard to this issue, it declined to consider the matter as it was not raised in the court below.

Justice Golia, in his dissent, argued that permitting interest to accrue between the date of the order and the date of the actual entry of judgment “would be rewarding such delay with what amounts to essentially a windfall of punitive interest payments.” As the purpose of the no-fault regulations was to encourage the prompt resolution of no-fault claims, permitting a recalcitrant plaintiff to accrue interest after the conclusion of litigation “would be at odds with the legislative goal of promptly resolving no-fault claims.” (SZ Med., P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 20044 [App. Term. 2d Dep’t 2010], Golia, J. dissenting).

No fault regulations provide for interest to accumulate throughout the course of the litigation “unless the applicant unreasonably delays the . . . court proceeding.” (11 NYCRR § 65-3.9[d]). A court proceeding ends with the entry of judgment. Judgment is to be prepared by the prevailing party within 30 days of the rendering of judgment (CCA § 1401). It follows that any delay thereafter, absent good cause, is unreasonable. Here, plaintiff waited ten months to enter the original judgment, miscalculated the interest, waited an additional 17 months after judgment was stayed correct the interest calculation, and then miscalculated it a second time. This was unreasonable. Accordingly, interest as provided by 11 NYCRR § 65-3.9 is tolled as of March 2, 2008 — 30 days after the Court initially rendered summary judgment for plaintiffand the date by which plaintiff should have prepared the judgment in the first instance.

Enter order accordingly.

Dated:March 14, 2011______________________________

Ann O’Shea, AJSC

Footnotes

Footnote 1: Plaintiff used the April 5, 2005, date in recognition of 11 NYCRR 65-3.9 and the Court of Appeals decision in LMK Psychological Services, PC v. State Farm Mutual Auto Insurance, 12 NY3d 217 (2009), which provided that the accrual of interest is tolled from 30 days after the claim is denied to the date the civil action is commenced. The regulation was adopted “to encourage claimants to swiftly seek to resolve any dispute concerning their entitlement to no fault benefits” (LMK Psychological, 12 NY3d at 223-224).

Footnote 2: Plaintiff also unilaterally increased the amount of attorney’s fees claimed from $850 to $1,700 and the costs of service of the summons and complaint from $25 to $40. In addition, plaintiff failed to credit defendant with the payment of the principal sum two years earlier.

Footnote 3:Circular Letter No. 9, dated April 9, 2002, by the Insurance Department, states that the new regulation “provides for revised endorsements with new notice provisions, [and that] these new provisions will not be applicable to claims until new policies containing the revised endorsements are issued or renewed” (see Brentwood Pain & Rehabilitation Servs., P.C. v Progressive Ins. Co., 2009 NY Slip Op 31881U [Sup. Ct. NY Co. 2009]).

Civil Court of the City of New York, New York County

009158 CVN 08

Jacqueline S. Linder, Esq. (for defendant)

McDonnell & Adels, PLLC

401 Franklin Ave 2nd Fl

Garden City NY 11530

(516) 328-3500

Melissa A. Pirillo, Esq. (for plaintiff)

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Rd

Mineola NY 11501

(516) 741-4799

Anil C. Singh, J.

Hon. Anil C. Singh, J.:

Plaintiff Cambridge Medical, P.C. (“Cambridge Medical”) seeks reimbursement of first party no-fault benefits from defendant insurer. Defendant joined issue and served upon plaintiff its discovery demands, including a deposition notice. Plaintiff failed to comply with the demands. Defendant then moved to compel the testimony of plaintiff’s alleged owner, Eileen S. Debbi, M.D., and to require plaintiff to answer the interrogatories and provide documentation regarding the ownership/operation of the plaintiff. Cambridge Medical opposes the motion and applies for a protective order pursuant to CPLR 3103.

Defendant contends that Dr. Debbi is not the owner of Cambridge Medical. It believes that the real owner is one Mark Levitan, who is a non-physician and the owner of Nissa Management, Inc. Movant supports its application with an examination under oath taken of Dr. [*2]Debbi on March 8, 2007, in an unrelated proceeding. Dr. Debbi was questioned about Cambridge Medical. Adirondack contends that Dr. Debbi refused to respond to most of the questions at the EUO regarding management agreements and lease agreements, although she provided just enough testimony to indicate that she had little control over the daily operations of Cambridge Medical; had no knowledge of the plaintiff’s finances; and that Cambridge Medical was to a large extent controlled by Mark Levitan of Nissa Management, Inc.

Plaintiff opposes, contending that defendant has failed to show good cause for the deposition. It maintains that defendant’s allegation that Cambridge Medical is fraudulently incorporated lacks any support and is based on speculation, conjecture and surmise. Plaintiff maintains that the defendant simply used Dr. Debbi’s EUO testimony and chose portions of the testimony to distort and make it appear that there were issues with plaintiff’s corporation. Accordingly, the deposition is being sought to harass and to delay trial.

Discussion

Plaintiff chose to commence an action in the Civil Court and is bound by Article 31 of the CPLR, which grants as of right discovery in all civil plenary proceedings. Specifically, CPLR 3101(a) provides that there shall be “full disclosure of all matters material and necessary in the prosecution or defense of an action….” The terms “material and necessary” are to be

interpreted liberally to require disclosure upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968).

Once an action is commenced, “any party may take the testimony of any person by deposition upon oral or written questions” [CPLR 3106(a)]. Parties may ask broad questions to ascertain the truth or to bring out relevant evidence that may assist in the prosecution or defense of the action [Seaman v. Wyckoff Heights Medical Center, Inc., 8 Misc 3d 628 (2005)]. Notice on a corporate party may not specify the individual to be examined, as initially the corporation may decide who it will produce [Rufus v. New York State Teachers Association, 42 AD2d 1040 (4th Dept. 1973)]. Employees who have knowledge are subject to being deposed [Ferraro v. New York Telephone Co., 94 AD2d 784 (2nd Dept. 1983); CPLR 3101(a)(1)].

The fact that the action was brought under the no-fault law is irrelevant to the demand for a deposition. The no-fault regulations govern, inter alia, the payment of claims and defenses to reimbursement. The “good cause” standard cited by plaintiff concerns a carrier’s right to delay payment of claims in order to conduct investigations [11 N.Y.C.R.R. 65-3.39(c)]. It does not limit a party’s right to discovery sought in good faith pursuant to Article 31 of the CPLR.

Defendant has a good-faith basis to question Dr. Debbi. The EUO of Dr. Debbi was conducted in 2007. She appeared to know little about the medical operation of Cambridge Medical and the medical personnel who worked at the office. It may well be that plaintiff is correct that there was no management agreement with Nissa Management, Inc., and that Mark Levitan was simply an employee of plaintiff. However, defendant is entitled to question Dr. Debbi under oath to ascertain the ownership status of Cambridge Medical.

Accordingly, the motion by defendant to compel the production of Dr. Debbi for examination before trial and to respond in a complete and meaningful way to defendant’s [*3]discovery demands is granted. Plaintiff shall: 1) provide full and complete answers to the interrogatories and provide documentation to defendant regarding the ownership/operation of the plaintiff within twenty (20) days of the date of this order; and 2) produce Dr. Debbi for deposition within forty-five (45) days of the date of this order.

Plaintiff’s application for a protective order is denied.

The foregoing constitutes the decision and order of the court.

Date:June 29, 2009_________________________

New York, New York

Anil C. Singh

Civil Court of the City of New York, New York County

74171 CVN 2007

Attorneys for the Plaintiff

By: Michael C. Rosenberger, Esq.

Law Offices of Bryan Rothenberg

Attorneys for the Defendant

By: Kenneth F. Popper, Esq

Manuel J. Mendez, J.

Defendant AIU Insurance Company, moves for summary judgment pursuant to CPLR §3212 alleging there exists no triable issues of fact because the underlying policy was retroactively cancelled and deemed void ab initio, based on a material misrepresentation in the insurance application, pursuant to the terms of the policy and under Virgina Law. This is an action to recover no-fault benefits for services from a transportation company rendered to the assignor.

Plaintiff opposes the motion and claims that it is error to hold that a policy obtained using fraudulent misrepresentations could be void ab initio as indicated in Vehicle and Traffic Law §313. Plaintiff also claims that the defendant has not offered sufficient proof that the misrepresentation was material such that the insurer would refuse to make such a contract and [*2]provided no affidavit by an individual with personal knowledge of the investigation.

RELEVANT FACTS

Defendant issued a policy to the assignor, Jorge Garcia for a 1995 Dodge Caravan on or about April 21, 2007. At that time he listed his address as 424 Cornwallis Court, Ashland, VA 23005. The defendant claims that Jorge Garcia indicated on a residency request letter dated August 13, 2007, the car was garaged in Virginia, and that he had not changed his residency since he applied for the policy (a copy of the letter is annexed to the motion papers as part of “Exhibit E”). The policy issued contains specific language which the defendant alleges resulted in the policy being void ab initio as a result of the misrepresentations ( certified copy of the policy is annexed to the motion papers as part of “Exhibit C”).

Pursuant to its investigation of the claim regarding the accident of July 7, 2007, defendant held an Examination Under Oath and determined Jorge Garcia had been living in Bronx, New York and not Virginia at the time he signed the closing statement. The defendant cancelled the policy ab initio via letter dated October 24, 2007, with the rescission effective fifteen days from the date of receipt.

LEGAL ANALYSIS

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id.; Klein v. City of New York, 89 NY2d 833, 834-35 (1996) Ayotte v. Gervasio, 81 NY2d 1062, 1062 [1993], Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986) Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985), Zuckerman v. City of New York, 49 NY2d 557, 427NYS2d 595 (1980). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 NY2d 204, 208 [*1997]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 427 [1988]. In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. (SSBS Realty Corp.v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-85 [1st Dept. 1998]; Martin v. Briggs, 235 AD2d 192, 196 [1st Dept., 1997]).

A conflict of law dispute concerning an insurance policy is resolved by application of the conflict of law rules that apply to contracts. Matter of Integon Insurance Co.v. Garcia, 281 AD2d 480, 721 NYS2d 660 [N.Y.A.D. 2nd Dept. 2001]. The test to determine which state law governs involves the “grouping of contacts,” the state with the most significant contacts to the dispute has the law which governs the outcome of the dispute. Eagle Insurance Co. v. Singletary, 279 AD2d 480, 717 NYS2d 351 [N.Y.AD2d Dept. 2000]. It has been held that “significant contacts” regarding an insurance contract include, “the place of contracting, … the place of negotiation and performance, the location of the subject matter of the contract and the domicile or place of business of the contracting parties.” Jones v. AIG Insurance Co., 15 Misc 3d 1123(A), [*3]841 NYS2d 219 [Sup. Ct. Queens County 2007], Matter of Integon Insurance Co.v. Garcia, 281 AD2d 480, supra , and Eagle Insurance Co. v. Singletary, 279 AD2d 480, supra .

The Appellate Division, Second Department, in Eagle Insurance v. Singletary, 279 AD2d 480, supra ,in a factual situation similar to that of the instant action, determined that New York’s governmental interests needed to be balanced against the significant contacts with Virginia. In finding that Virginia law applies, the Court identified Virginia as the location where the contract of insurance was negotiated and obtained by parties doing business and expected to reside in that state and there was an expectation that the vehicle would be garaged there, so that it had the most contacts. The Court also determined this interest takes precedence over New York State’s interest in protecting innocent third parties from denial of insurance coverage.

The policy in this action involves a company doing business in Virginia and an individual representing at the time the contract was entered into in Virginia, that he was a resident of that state. There are significant contacts with Virginia so that the law of that state applies to this action.

The Virginia Code §38.2-309, titled, “When answers or statements of applicant do not bar recovery on policy,” specifically states,

“All statements, declarations and descriptions in any application for an

insurance policy shall be deemed representations and not warranties.

No statement in an application or in any affidavit made before or after

loss under the policy shall bar recovery upon a policy of insurance unless

it is clearly proved that such answer or statement was material to the risk

when assumed and was untrue.”

The Supreme Court of Virginia, has interpreted the statute to apply to insurance companies contesting a claim on the basis of an insured’s misrepresentation and developed a two part test. The insurer is required to demonstrate,

“(1) that the statement or omission on the application was untrue

and

(2) that the insurance company’s reliance on the false statement

or omission was material to the company’s decision to

undertake the risk and issue the policy.”

It is not enough to prove a falsity, the insurer is required to clearly prove that the untruthful answers would have reasonably influenced the company’s decision to issue the policy. See Commercial Underwriter’s Insurance Company v. Hunt & Calderone, P.C., 261 Va. 38, 540 S.E. 2d 491(2001) and Montgomery Mutual Ins. Co. v. Riddle, 266 Va. 539, 587 S.E. 2d 513 (2003). [*4]

The defendant provides the Examination Under Oath (EUO) transcript of Jorge Garcia,

dated September 24, 2007 (annexed as “Exhibit D” to the motion papers), as proof of the material misrepresentation. Mr. Garcia states that although he was residing in New York at the time he entered into the policy in Virginia, he only worked and lived in New York and worked in a delicatessen for part of the year, and he would return and reside in Virginia during the summer when he did construction work. (EUO Transcript at pages 37-39) . Mr. Garcia also indicates that he had inquired of the person filling out the application for his policy, if he could change the listed address and was advised that he would have to wait until some bills arrived, and that since he was planning to return to Virginia he did not change the address. He indicates he was advised that a New York policy would be more expensive but that was not a factor in his decision to keep the address listed as Virginia (EUO Transcript at pages 51-52). The defendant also annexes the affidavit of Fae Pitts, an Underwriter III by AIG Marketing Inc., (annexed to the motion papers as “Exhibit E”) she bases her knowledge on a review of the records and indicates the policy was cancelled retroactively based upon material misrepresentations. Fae Pitts does not provide sufficient details as to the reliance on the misrepresentations being material to the company’s decision to undertake the risk. There is no statement from the individual responsible for filling out the insurance application or sufficient proof to confirm or deny the statements made by Jorge Garcia regarding dual residency.

CONCLUSION

This Court finds there is a conflict of law between Virginia and New York, and Virginia law prevails. Defendant has not met its burden of proof sufficient to obtain summary judgment concerning whether the policy was void ab initio. Defendant has provided proof that Jorge Garcia provided misrepresentations on his insurance policy, but has not clearly established that it relied on those misrepresentations when it undertook the risk or that truthful answers would have influenced the insurer’s decision to issue a policy. It is unclear based on the EUO testimony of Jorge Garcia, whether the individual responsible for preparing the application on behalf of the defendant was aware of the misrepresentations and continued have the policy issued. The defendant has not met its burden of proof, there is no need to address the deficiencies in the plaintiff’s papers.

Accordingly, for the foregoing reasons the defendant’s motion for summary judgment is denied.

The foregoing shall constitute the Decision and Order of the Court.

Dated: April 20, 2009

Manuel J. Mendez

Judge, Civil Court

Civil Court, New York County

044447 CVN 2008

Attorneys for plaintiff:

Leon Kucherovsky

By: David Forman, Esq.

Attorneys for defendant:

Saretsky, Katz, Dranoff & Glass, LLP

By: Howard J. Newman, Esq.

Manuel J. Mendez, J.

Upon a reading of the foregoing cited papers on this motion and cross motion for summary judgment it is the decision of this court that the motion is granted, plaintiff is awarded judgment in the amount of $2,610.00 with interest at 2% per month from July 19, 2008, plus attorneys fees of 20% of judgment plus interest amount not to exceed $850.00, plus costs. The cross motion is denied.

This motion was returnable on November 13 2008. On the return date the court adjourned the motion to December 17, 2008 at which time defendant filed a cross motion and opposition to the motion. The court then adjourned the motion and cross motion to March 11, [*2]2009 for a reply. On March 11, 2009 there being no reply this court took the motion on submission and ordered plaintiff to submit its reply by March 25, 2009. Plaintiff has submitted its reply and this court now decides the motion.

Plaintiff moves for summary judgment to recover for services rendered its assignor under the No-fault provision of the Insurance Law. Plaintiff alleges that as a result of an automobile accident on July 19, 2002, it provided services to its assignor on August 15 to August 29, 2002 and on September 23, 2002 submitted a bill to the defendant for these services in the amount of $630.00. It provided services on September 3 to September 26, 2002 and on October 8, 2002 submitted a bill to the defendant for these services in the amount of $900.00. It provided services on October 1 to October 28, 2002 and on November 5, 2002 submitted a bill to the defendant for these services in the amount of $720.00. It provided services on November 1 to November 13, 2002 and on December 5, 2002 submitted a bill to the defendant for these services in the amount of $270.00. It provided services on December 20, 2002 and on January 7, 2003 submitted a bill to the defendant for these services in the amount of $90.00. The total for all the bills submitted by plaintiff to the defendant is $2,610.00.

In support of its motion plaintiff annexes the affidavit of Yevgeny Gorbatov, LAC, its owner who has personal knowledge that the claims were mailed because it is his responsibility to insure that the claims were mailed. He bases his affidavit on personal knowledge and a review of the file. He further states that the services were provided and bills mailed as indicated in this court’s factual recitation. Finally, he provides the office practice and procedure in place at the time these services were performed and bills generated to ensure that items are properly addressed and mailed( See Moving papers Exh. A).

Plaintiff also annexes to its moving papers the denial of claims issued by the defendant. In these denials, all dated February 17, 2003, defendant acknowledges receipt of the claims and denies all of the claims submitted based on lack of coverage ( See moving papers Exh. E). There was no verification requested to toll the 30 day period within which defendant had to pay or deny the claim.

Defendant cross moves for summary judgment on the basis that the assignor is perpetrating a fraud and has failed to cooperate. Its denial of claim form gives as a reason for the denial of all claims the following: ” All New York no-fault benefits are denied to the above injured person based on the loss not being accidental; violation of the fraud provisions of the policy; failure to cooperate, we base our conclusion on your failure to cooperate on evidence of your giving false or misleading information throughout the presentation of the claim; the injuries did not arise our of the use or operation of the insured vehicle; and engaging in fraudulent conduct in connection with this loss.”

In support of its motion defendant annexes an attorney’s affirmation, the affidavit of Christopher Maresco, a claims representative, and the denial of claims forms (NF-10). Absent from defendant’s submission is an affidavit from an investigator from its special investigations [*3]unit and a copy of the assignor’s examination under oath.There was no request for verification of claim or additional verification tolling the time within which to pay or deny plaintiff’s claim. All the claims were denied on February 17, 2003 more than 30 days after the last bill for $90.00 had been submitted. Rosemarie Tulino, not Christopher Maresco, was the adjustor assigned to this claim.

Defendant claims the denial is due to a number of factors all of which taken together establish that there was fraud perpetrated by its insured, including the assignor. The affidavit of Chistopher Maresco states that his knowledge is based on a review of the file and on his personal knowledge. He states that “he has been assigned to oversee the handling of this claim which was referred to the special investigations unit to resolve questions of merit since this loss had multiple fraud indicators which support State Farms’s founded belief that the collision was fraudulent and not an accident.” The affidavit goes on to indicate that there are “Fraud Indicators” leading defendant to its conclusion of fraud. Mr. Maresco goes on to state that ” When all the information was carefully investigated and analyzed it formed State Farm’s founded belief that the purported accident was not a covered accident, but instead it was an intentional act which is not covered under State Farm’s policy of insurance.”

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact.(Klein V. City of New York, 89 NY2d 833; Ayotte V. Gervasio, 81 NY2d 1062, Alvarez v. Prospect Hospital, 68 NY2d 320). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues(Kaufman V. Silver, 90 NY2d 204; Amatulli V. Delhi Constr. Corp.,77 NY2d 525; Iselin & Co. V. Mann Judd Landau, 71 NY2d 420). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party(SSBS Realty Corp. V. Public Service Mut. Ins. Co., 253 AD2d 583; Martin V. Briggs, 235 [1992]).

In an Action to recover first-party no-fault benefits for health care services provided to an assignor, a plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and amount of the loss sustained and that payment of no-fault benefits is overdue ( Insurance Law § 5106[a]; Mary Immaculate Hosp. , v. Allstate Ins. Co., 5 AD3d 742[2004]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U][App. Term 2nd. & 11th Jud. Dists. 2003]). A no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer’s denial of claim form wherein the insurer acknowledges the claims’ receipt ( Fair Price Med. Supply Corp., v. ELRAC Inc., 12 Misc 3d 119 [App. Term 2nd. & 11th, Jud. Dists. 2006]). Plaintiff has established a prima facie entitlement to summary judgment through the affidavit of Yevgeny Gorbatov and the exhibits annexed to its moving papers which show that a claim was submitted and payment is overdue. Any deficiencies in Mr. Gorbatov’s affidavit are cured by the defendant’s denial of claim forms which acknowledge receipt of plaintiff’s claims. [*4]

The burden now shifts to defendant to raise a material issue of fact. Defendant had 30 days to pay or deny the claim, counting from the date it receives the bills in question ( See 11 NYCRR§ 65-3.8(a)). Defendant did not pay or deny the claim within 30 days of receipt of the bill, and did not request verification of the bills within 15 days of its receipt ( See 11 NYCRR§ 3.5 (a)). However, this has no effect on its defense of lack of coverage.( See Presbyterian Hospital v. Maryland Casualty Co., 90 NY2d 274[1997]; Central General Hospital v. Chubb Group of Ins. Co.,90 NY2d 195, 659 N.Y.S. 2d 246 [1997]) which may be asserted after the time to pay or deny the claim has expired, premised on a “fact or founded belief” that the alleged injury does not arise out of an insured accident.

While the untimely denial does not preclude defendant from interposing the lack of coverage defense based on fraud, it remains defendant’s burden to demonstrate ” a fact or founded belief” that the injuries did not result from an insured event ( See Central General Hospital v. Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997] Supra). Thus, defendant’s proof has been found lacking when an “investigator’s report alleged only that the uncooperative insured, but not the assignor, had been involved in prior accidents alleged to be “suspicious” ( A.B. Medical Services PLLC v. Eagle Insurance Co., 3 Misc 3d 8, 776 N.Y.S. 2d 434 [App. Term 2nd. Dept. 2003]), the motion is supported by an affirmation of defendant’s counsel without personal knowledge of the facts and an affidavit of a claim representative likewise with no personal knowledge of defendant’s investigation into the incident ( Oleg Barshay, D.C., P.C., v. State Farm Ins. Co., 14 Misc 3d 74, 831 N.Y.S. 2d 821 [App. Term 2nd. Dept. 2006]; Comprehensive Mental v. Allstate Ins. Co., 14 Misc 3d 130(A), 836 N.Y.S. 2d 484[ App. Term 9th & 10th Jud. Dists. 2007]) when the statements in the affidavit of the investigator are conclusory (Great Wall Acupuncture v. Utica Mutual Ins. Co., 14 Misc 3d 144 (A), 836 N.Y.S. 2d 499 [App. Term 2nd. & 11th Jud. Dists. 2007]).

“To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish the fact or founded belief that the alleged injuries do not arise out of an insured incident. The discrepancies in the testimony given by two passengers during their examinations under oath are insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident. The affidavit of defendant’s claims representative and the attached exhibits failed to substantiate the conclusory allegations of the assignor’s participation in a ring that stages traffic incidents to defraud insurers” (Webster Diagnostic Medicine, P.C., v. State Farm Ins. Co., 15 Misc 3d 97, 838 N.Y.S. 2d. 343 [App. Term 9th & 10th Jud. Dists. 2007]).

The defendant must come forth with proof in admissible form which is more than just “unsubstantiated hypotheses and suppositions.” These are insufficient to raise a triable issue of the assignor’s fraud ( A.B. Medical Services, PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 776, N.Y.S. 2d 434 [2003]; Oleg Barshay, D.C., P.C., v. State Farm Ins. Co., 14 Misc 3d 74, 831 N.Y.S. 2d 821 [2006];Comprehensive Mental v. Allstate Ins. Co., 14 Misc 3d 130(A), 836 N.Y.S. 2d 484 [2007];Great Wall Acupuncture v. Utica Mutual Ins. Co., 14 Misc 3d 144 (A), 836 N.Y.S. 2d 499[ 2007] Supra). [*5]

Defendant has failed to come forth with more than mere unsubstantiated hypothese and suppositions in support of its motion. Its attorney’s affirmation is without probative value as he has no personal knowledge of the facts ( See Melbourne Med., P.C., v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App. Term 2nd. & 11th Jud. Dists. 2004]). The affidavit of Christopher Maresco is also without probative value as he has no personal knowledge of the investigation. He is not a member of the investigation Unit and was not the investigator assigned to investigate plaintiff’s assignor’s claims. In fact his affidavit does not state the name of the investigator investigating this claim. His affidavit, which is based on his review of the file is conclusory and provides no more than the hypothese and suppositions which the courts have previously rejected as insufficient to support or oppose a motion for summary judgment. Mr. Maresco alludes to discrepancies in the Examinations Under Oath of the various passengers in the vehicle at the time of the accident. However, the transcripts are not annexed to the cross moving papers for the court to review. The court is left to rely on the analysis of these transcripts by Mr. Maresco who reaches the conclusion that the accident was not a covered accident. His affidavit without more is insufficient to defeat plaintiff’s entitlement to summary judgment.

Accordingly, it is the decision and order of this court that the motion for summary judgment is granted. Plaintiff is awarded a judgment in the amount of $ $2,610.00 with interest at 2% per month from July 19, 2008, plus attorneys fees of 20% of the judgment plus the interest amount not to exceed $850.00, plus costs. The cross motion is denied.

This constitutes the decision and order of this court.

Dated: April 2, 2009__________________________

Manuel J. Mendez

Judge Civil Court