Civil Court of the City of New York, Queens County

086471/04

Howard G. Lane, J.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor Katina Johnson pursuant to New York’s No-Fault Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, defendant moved for summary judgment on the ground that plaintiff’s claims for No-Fault benefits is not overdue and that this action is premature. Plaintiff cross-moved for summary judgment on its claims in the amount of $759.00, on the ground that defendant failed to pay or to deny its claims within the statutory 30-day period as required by Insurance Law section 5106 [a].

SUMMARY JUDGMENT STANDARD

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law, tendering admissible evidence to eliminate any material issues of fact from the case (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Tortorello v. Carlin, 260 AD2d 201 [1st Dept 1999]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648; Greenberg v. Manlon Realty, 43 AD2d 968).

If the moving party satisfies those standards, the burden shifts to the opponent to rebut that prima facie showing by presenting evidence in admissible form establishing the existence of triable issues of fact (see, CPLR §3212, subd [b]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Davenport v. County of Nassau, 279 AD2d 497 [2d Dept 2001]; Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]; Kaufman v. Silver, 90 NY2d 204 [1997]). It is well settled that summary judgment should be denied if there is any doubt as to the existence of a triable issue of fact (Freese v. Schwartz, 203 AD2d 513 [2d Dept 1994]).

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

DEFENDANT’S MOTION AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT.

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

The only exception to the 30 day rule is where an insurer’s untimely denial is based upon the defense of lack of coverage, or where a medical condition for which the patient was treated, was not “related to the accident”. Chubb, supra. To withstand a motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish “the fact” or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident (Metro Med. Diagnostics, P.C., v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]).

Within 10 business days after receipt of the completed no-fault application (NF-2), the insurer must forward verification forms for healthcare or hospital treatment (NF-3, NF4 or NF-5) to the injured party or that party’s assignee. After receipt of the completed verification of healthcare or hospital treatment form, the insurer may seek “additional verification” or further proof of claim from the injured party or that party’s assignee within 15 business days thereof. 11 NYCRR §65-3.5(b). Hence, the 30 day period may be extended by a request for verification. See, New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co.,supra; Presbyterian Hosp. in the City of New York v. Maryland Cas. Co., 90 NY2d 279 [1997]).

If the requested verification has not been supplied to the insurer within 30 calendar days, after the original request, the insurer shall issue within 10 calendar days of the insured’s failure to respond a follow-up request “either by telephone call, properly documented in the file, or by mail.” See 11 NYCRR §65-3.6(b), now 15 days per 11 NYCRR §65-3.5 [b]; S&M Supply v. Allstate Insurance Co., 2003 NY Slip Op 51191 [U] [App Term, 2d & 11th Jud Dists]. “An insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . . “(New York Hosp. Med. Ctr. Of Queens v. Country-Wide Ins. Co., supra at 585. Glassman D.C., PC v. State Farm Mut. Auto. Ins. Co., 192 Misc 2d 264 [App Term, 2nd & 11 Jud [*3]Dists 2002]).

A legally valid basis for denying a first party benefit claim would be the provider’s assignor failing to comply with an insurer’s requests for verification. See generally, Lopedote v. General Assurance Company, 2004 NY Slip Op 50593[U] [Kings Co. Civil Ct. 2004]. However, any party required to provide verification information must be afforded adequate and proper notice of the request. See generally, Star Medical Services, P.C. v. Allstate Ins. Co., 5 Misc 3d 785 [Kings Co. Civil Ct. 2004].

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

Plaintiff maintains that it is entitled to summary judgment because the defendant failed to pay or deny its claims within 30 days of receipt as required by the Insurance Law §5106 (a). Plaintiff asserts that it submitted to defendant proofs of claims for medical supplies which defendant admits to receiving, that defendant did not request additional verification and that the claim is overdue and owing.

Plaintiff proved that it submitted a timely and proper notice of claim pursuant to the No-Fault statute for medical supplies provided, which defendant acknowledged receiving, and not paying. See, Capio Medical, P.C. ex rel. Berger v. Progressive Cas. Ins. Co., 7 Misc 3d 129(A), 2005 NY Slip Op 50526(U) (App Term, 2nd and 11 th Jud Dists); Park Health Center v. Prudential Prop. and Cas. Ins. Co., 2001 WL 1803364 (App Term 2nd and 11th Jud Dist 2001). The burden then shifted to defendant to show the existence of a triable issue of fact. See, Alvarez v. Prospect Hosp., supra. Defendant asserts that it received the bills at issue on August 20, 2002, “printed” and then mailed a request for additional verification on August 30, 2002, and after receiving no response from plaintiff, followed up with a second written request on September 30, 2002. Plaintiff did not admit to receiving the request for verification. Defendant asserts that the requests for verification were timely sent to plaintiff and establish defendant’s right to a tolling of the 30-day period by its verification requests.

In support of its motion defendant submits copies of the alleged verification request addressed to plaintiff, and proof of mailing of its request for verification (S & M Supply, Inc. v. GEICO, 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists 2003]). Specifically, defendant proffers the affidavit of Linda Phillips, a litigation representative employed by defendant who avers in her affidavit in support of defendant’s motion for summary judgment that “[w]ith respect to the mailing of the . . . [*4]verification requests, my office mailed same in accordance with its normal practice and procedure, followed in the regular course of my office’s business. . .” She further avers that “[s]uch request includes the specific claim information and bears the date that it is printed. It is then placed in a bin for the daily 1:15 p.m. collection by my office’s internal mail room personnel. The same day, a mail room employee prepares a post paid envelope bearing the same address of the entity that submitted the claim and seals the verification request in the envelope. Also the same day, a carrier from United States Post Office collects, with the mail, the envelope containing the verification request form at 3:30 P.M.” Additionally, she avers that “any verification request form that is placed in the bin for mail room collection after 1:15 p.m. is collected during the next business day’s internal mail collection.”

The court finds the assertions of defendant’s litigation examiner conclusory and such assertions fail to specify either that it was the duty of the litigation examiner to ensure compliance with said office procedures or that the litigation examiner had actual knowledge that said procedures were complied with. (See, Contemp. Med. Diag. & Treatment, P.C. v. GEICO, 6 Misc 3d 137(A), 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]). See also, Amaze Medical Supply v. State Farm Automobile Ins. Co., 8 Misc 3d 139(A), 2005 NY Slip Op 51315(U) [2d and 11th Jud Dists 2005]). As defendant’s papers in support of the motion for summary judgment do not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practices or procedures it used to ensure that such requests were properly addressed and mailed (see, Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and therefore, the 30-day period within which it was required to pay or deny the claim was not tolled (see, S&M Supply Inc. Co. V. Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and judgment shall be awarded in favor of plaintiff in the amount of $759.00, together with statutory interest and attorneys fees.

The foregoing constitutes the decision and order of this Court.

Dated, October 24, 2005________________________________

Howard G. Lane

Judge, Civil Court

[*1]

Civil Court of the City of New York, Queens County, September 14, 2005

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn, for plaintiff. McDonnell & Adels, P.C., Garden City (John E. McCormack of counsel), for defendant.

OPINION OF THE COURT

Anna Culley, J.

In the case at bar, plaintiff, a medical services provider and assignee of claimant Malik Corbin, brings a motion for summary judgment seeking payment for several claims in the aggregate sum of $6,581.38. These claims arise out of medical services allegedly provided to Corbin as a result of an automobile accident which occurred on December 9, 2001, prior to the effective date of the new regulations (11 NYCRR 65-3.16 [a] [12] [eff Apr. 4, 2002]). In support of its motion, plaintiff submits the affidavit of the corporate officer, Aleksander Tverskoy, M.D., as well as the denial of claim forms (NF-10). The NF-10s are sufficient to adequately establish when the defendant received the bills in question (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists 2004]). Each of the denials state, in relevant part: “Your claim is denied because you have not provided the verification requested by State Farm’s Special Investigative Unit. If you provide the requested information, State Farm will reconsider its position.”

All of State Farm’s denial of claims are untimely on their face with the exception of one received September 11, 2002 in the amount $1,353.31. The denial is dated September 18, 2002. As has been held by the Appellate Term, Second and Eleventh Judicial Districts, a denial issued before all verification has been provided is not a proper denial, and therefore, defendant insurance carrier has failed to properly deny this claim (11 NYCRR 65-3.8 [b] [3]; see also Shtarkman v Allstate Ins. Co., 8 Misc 3d 129[A], 2005 NY Slip Op [*2]51028[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, it appears plaintiff has established its prima facie entitlement to summary judgment as a matter of law.

In this action, defendant cross-moves seeking summary judgment alleging that the plaintiff is not a properly licensed medical corporation as it is not wholly owned by licensed medical doctors. Defendant has demonstrated that plaintiff herein is a professional medical corporation which has shared as much as 65% of its gross revenues with a corporation owned by a nonphysician. Plaintiff does not dispute these facts in its reply papers.

At the time this motion was submitted, the Court of Appeals had ruled on this issue in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). In Mallela, the Court of Appeals answered a certified question from the United States Court of Appeals for the Second Circuit. The Court was asked to determine “whether, under our ‘no-fault’ insurance laws, insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims” (id. at 319 [citation omitted]). In answering the question in the affirmative, the Court based its holding on the Superintendent’s amended regulation declaring fraudulently licensed corporations ineligible for reimbursement. The Court held further that State Farm was precluded from recouping payments made by the carrier before April 4, 2002, the effective date of the amended regulation. The Court expressly declined to reach the issue of the viability of heretofore unpaid claims arising under the old regulation. This court will now decide this issue.

In Matter of Gleason (Michael Vee, Ltd.) (96 NY2d 117, 122 [2001]), the New York Court of Appeals observed:

“In determining whether a statute should be given retroactive effect, we have recognized two axioms of statutory interpretation. Amendments are presumed to have prospective application unless the Legislature’s preference for retroactivity is explicitly stated or clearly indicated (see, People v Oliver, 1 NY2d 152, 157). However, remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose (see, Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Becker v Huss Co., 43 NY2d 527, 540). Other factors in the retroactivity analysis include whether the Legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be (see e.g., Brothers v Florence, 95 NY2d 290, 299; Matter of OnBank & Trust Co., 90 NY2d 725, 730).”

In 1999, in an effort to combat the widespread abuse in no-fault insurance claims, the Superintendent proposed an amended Regulation 68^[FN*] (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854[*3][2003]). Further, section 65-3.16 (a) (12) of the regulation states, in relevant part, that “[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.” “In summarizing the new provision, the department provided its opinion that such a result had previously been required, stating that § 65-3.16 (a) (12) of the new regulations had been added ‘to clarify that a health care provider must be properly licensed to be eligible for reimbursement under no-fault.’ ” (Michael Billy, Jr. and Skip Short, Insurance Department Regulations to Stem Fraudulent No-Fault Claims Upheld by Court of Appeals, 76 NY St BJ 40, 41 [Jan. 2004].)

The Insurance Department’s interpretation of the insurance regulations is entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]). This court must follow the agency’s interpretation of a regulation unless irrational, or unreasonable, or the interpretation runs contrary to the clear wording of a statutory provision (see Matter of John Paterno, Inc. v Curiale, 88 NY2d 328 [1996]).

Based on the foregoing, improperly licensed providers are precluded from recovering claims submitted prior to the amendment, as the amendment was the clarification of the existing regulation. A retroactive application is appropriate where the regulatory intent of the Superintendent was explicit to remedy widespread abuse and fraud in the filing of no-fault claims by improperly licensed medical providers. To hold otherwise would nullify existing statutory provisions which prohibit a professional medical corporation from being owned and operated by anyone other than licensed medical doctors (Business Corporation Law § 1503 [b]), and bar licensed physicians from sharing fees with nonphysicians (8 NYCRR 29.1 [b] [4]; Education Law §§ 6511, 6530 [19]). Accordingly, defendant’s cross motion for summary judgment is granted and the complaint is dismissed.

Footnotes

Footnote *: Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud. Reports of no-fault fraud rose from 489 cases in 1992 to 9,191 in 2000, a rise of more than 1,700%. No-fault fraud accounted for three quarters of the 16,902 reports of automobile-related fraud received by the Insurance Department’s Frauds Bureau in 2000, and more than 55% of the 22,247 reports involving all types of insurance fraud. In 1999, the Superintendent established a No-Fault Unit within the Frauds Bureau to focus specifically on no-fault fraud and abuse. By one estimate, the combined effect of no-fault insurance fraud has been an increase of over $100 per year in annual insurance premium costs for the average New York motorist.

[*1]

Civil Court of the City of New York, Queens County, August 30, 2005

APPEARANCES OF COUNSEL

Belesi, Donovan & Conroy, P.C., Garden City, for plaintiff. Bruno, Gerbino & Soriano, LLP, Melville, for defendants.

OPINION OF THE COURT

Denis J. Butler, J.

Plaintiff, Multiquest, PLLC, brought suit to recover payment under the No-Fault Law for medical services provided to assignor Paulette Cleckley. Plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment dismissing plaintiff’s cause of action.

Plaintiff contends that it properly issued a claim on behalf of the assignor and that such claim was not timely denied. Defendant does not dispute the untimeliness of its denial. Defendant contends, however, that plaintiff is not entitled to recover payment for such medical services allegedly provided under the No-Fault Law as the plaintiff’s medical facility was fraudulently incorporated at the time the alleged services were rendered to the assignor. For the foregoing reasons, the court finds in favor of defendant.

Plaintiff proved that it submitted a timely and proper notice of claim, which defendant has not paid in full, for services rendered to the assignor beginning November 5, 1998. The [*2]defendant, according to its denial of claim form, received such claim on July 11, 2001 and issued an untimely denial on August 11, 2001, 31 days after the date of receipt. The No-Fault Law requires the insurer to either pay or deny the claim for no-fault benefits within 30 days from the date the applicant supplies proof of claim. (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3].)

Defendant, in its cross motion, asserts that plaintiff’s medical facility was fraudulently incorporated at the time the services were rendered to the assignor and that plaintiff is therefore not entitled to recover on such claim. In support, defendant provides a copy of plaintiff’s application for employer identification dated September 4, 1998, which lists Yeugeny Gorbatov, a licensed acupuncturist, as president of Multiquest Psychological and Acupuncture Services, PLLC. Defendant also provides a copy of the Articles of Organization filed with the New York State Department of State on July 14, 1998, which lists Mr. Gorbatov and Kathryn Clarke, a licensed psychologist, as “original members and managers” of Multiquest Psychological and Acupuncture Services, PLLC.

Defendant also submits a copy of a stock certificate labeled “Number 2” which was issued to Dr. Joseph Indelicato on September 6, 2001 and which lists Dr. Indelicato as an owner of Multiquest. The defendant, in its affirmation in opposition, asserts that, as president of Multiquest, Mr. Gorbatov should have been issued stock certificate “Number 1” in 1998 when the company was first formed. Therefore, defendant contends that had there been a proper incorporation in 1998 a second stock certificate would have been issued by the medical facility to a licensed psychologist. However, the documents submitted on the motion herein do not indicate that Ms. Clarke or any other licensed psychologist was ever issued a stock certificate by the medical facility in 1998.

Defendant, in further support of such cross motion, submits a copy of a certified transcript of an examination under oath of Ms. Clarke dated April 26, 2004, wherein Ms. Clarke denied ever being a member or owner of Multiquest. Furthermore, Ms. Clarke stated that she never gave Multiquest permission to list her as a principal in the professional corporation. The court notes that defendant submitted, in the cross motion, the Articles of Organization filed by Mr. Gorbatov on July 14, 1998 listing Ms. Clarke as one of the owners. The defendant asserts in its cross motion that Mr. Gorbatov fraudulently listed Ms. Clarke as one of the owners in such document for the sole purpose of acquiring a valid New York state license to perform psychological services.

Plaintiff, in reply to defendant’s cross motion, merely asserts that defendant’s denials were untimely. With respect to defendant’s allegations of fraud and misconduct, plaintiff merely alleges that Ms. Clarke’s testimony is not credible as it was provided pursuant to an agreement wherein defendant agreed not to commence an action against Ms. Clarke in exchange for such testimony. Plaintiff, however, fails to submit any documentary proof rebutting defendant’s assertions of fraud or misconduct. Additionally, plaintiff fails to submit an affidavit from someone with personal knowledge of the facts disputing such allegations by defendant.

The Court of Appeals has ruled that under New York State’s No-Fault Law and implementing regulations, insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises. (State Farm Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005] [Mallela III].) The Mallela III court followed the Superintendent of Insurance’s [*3]promulgation prohibiting the reimbursement of benefits on behalf of unlicensed or fraudulently licensed providers. (11 NYCRR 65-3.16 [a] [12] [eff Apr. 4, 2002].) Accordingly, Mallela III ruled that medical providers fraudulently incorporated are therefore not entitled to reimbursement. Pursuant to the proof submitted in support of the motion and cross motion, it appears that plaintiff provider, Multiquest, was not properly licensed at the time the alleged medical services were provided. Additionally, defendant has submitted uncontroverted testimony under oath that the Articles of Organization improperly listed Ms. Clarke as an owner without her knowledge or consent.

The court now must determine whether 11 NYCRR 65-3.16 (a) (12) (eff Apr. 4, 2002) applies to claims made prior to the effective date of April 4, 2002 and, if so, whether such ruling applies when there is an untimely denial. This court finds that the intent of the Mallela III court was that 11 NYCRR 65-3.16 (a) (12) be applied to claims prior to April 4, 2002. The analysis of this court concurs with the decision in Metroscan Imaging P.C. v GEICO Ins. Co., to the extent that reading “the Mallela III decision as only pertaining to claims maturing post-April 4, 2002 is simply illogical” and would negate the intent of the Mallela III court. (Metroscan Imaging PC v GEICO Ins. Co., 8 Misc 3d 829, 834 [Civ Ct, Queens County 2005].) The Mallela III court, in considering such determination, relies on the argument presented in the amicus brief of the Superintendent of Insurance which alleges that such rule was promulgated to “combat rapidly growing incidences of fraud in the no-fault regime, fraud that he has identified as correlative with the corporate practice of medicine by nonphysicians.” (4 NY3d at 320 n 2.) Clearly, the Mallela III court strongly concurred with the findings of the Superintendent of Insurance that services provided by fraudulently licensed no-fault “providers” should not be reimbursed.

It is well settled that despite an untimely denial, an insurer is not precluded from raising the issue of coverage such as a breach of a condition precedent of the terms of the insurance contract. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].) In addition, the court notes that proper licensing of a medical provider is a condition precedent to payment. (Valley Physical Medicine & Rehabilitation v New York Cent. Mut. Ins. Co., 193 Misc 2d 675 [App Term, 2d Dept 2002].)

Furthermore, defendant, in its cross motion, alleges that plaintiff in addition to being improperly incorporated is also seeking compensation for medical tests provided to the assignor which were administered by individuals who were not licensed to administer such tests. Business Corporation Law § 1504 (a) provides that a professional service corporation may not “render professional services except through individuals authorized by law to render such professional services as individuals.” At the examination under oath dated April 26, 2004, Ms. Clarke testified that she was merely employed as an independent contractor for Multiquest and that she witnessed “assistants” administering psychological testing to the patients. Pursuant to the New York Workers’ Compensation Psychology Fee Schedule, “psychological services will be rendered by or under the active supervision of an authorized psychologist.” (12 NYCRR 333.2 [incorporated by reference].) It appears from the testimony of Ms. Clarke that Multiquest has provided psychological services which were not administered by or under the supervision of an authorized psychologist. [*4]

Accordingly, as the plaintiff has failed to proffer sufficient evidence to rebut defendant’s allegations that the medical provider was fraudulently incorporated at the time the alleged services were provided to the assignor and that it provided services by unlicensed psychologists, the medical services provided by the plaintiff to its assignor are therefore not covered under the No-Fault Law. Accordingly, plaintiff’s motion for summary judgment is denied, plaintiff’s cross motion for summary judgment is granted and the case is dismissed.

Civil Court of the City of New York, Queens County

120335/03

Gerald J. Dunbar, J.

This matter came before the Court on May 20, 2005, by way of Plaintiff’s Motion for Summary Judgment, pursuant to CPLR § 3212, for recovery of unpaid No-fault benefits in the sum of $4,619.33, along with statutory interest at the rate of two (2%) percent, compounded, per month, pursuant to 11 NYCRR 65.15 (g), and statutory attorneys’ fees on behalf of Plaintiff Assignee. The Plaintiff’s assignor was injured in an automobile accident in the City of New York. There is no claim that anything other than the No-Fault Regulations apply to the instant matter.

By way of comment, the Court notes that Counsel for Defendant appears to request, in his Affirmation in Opposition to the above-requested relief, a deposition of Plaintiff. As there is no cross-motion before it, the Court cannot properly address this request. [*2]

A party moving for summary judgment must show, by evidence in admissible form, that there are no material issues of fact in controversy and that they are entitled to judgment as a matter of law. Once that showing is made, the burden shifts to the opponent of the motion for summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy which require a trial. Alvarez v. Prospect Hospital, 68 NY2d320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851(1985).

In the instant matter, Plaintiff has shown, by admissible evidence, that it was assigned the instant claim and submitted same to Defendant and that said claim was not paid within thirty days of its receipt by Defendant. Mailing of each claim is proven by Defendant’s NF-10, Denial of Claim forms, which admit receipt of Plaintiff’s claims as follows: Claim Number 1, in the sum of $2,664.33, received by Defendant on November 7, 2001(“Claim No.1”); Claim Number 2, in the sum of $1,020.00, received by Defendant on November 26, 2001 (“Claim #

2″); Claim Number 3, in the sum of $680.00, received by Defendant on December 20, 2001 (“Claim #

3″); Claim Number 4, in the sum of $255.00, received by Defendant on January 10, 2002 (“Claim #

4″).

The admission of receipt in the Defendant’s NF-10 Denials are adequate admission of mailing and prove that aspect of Plaintiff’s prima facie case. A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A), 787 NYS2d 675 [App Term 2nd & 11th Jud Dist 2004]; A.B. Medical Services, PLLC v State Farm Mut. Automobile Ins. Co., NYLJ 2/20/04, p. 26, col. 6. Defendant proves mailing of it’s NF-10 denials by way of the Affidavit of its employee, Justin Barth, a no fault examiner and manager. However, each of the above-referenced claims were denied on April 10, 2002, and are untimely on their face.

As the NF-10 Denials are facially untimely and well outside of the thirty (30) day period established for denial of said claims in accordance with 11 NYCRR 65-3. The burden is, thereafter, on Defendant to show that the thirty (30) day period was tolled by proper verification requests and/or that a Chubb defense exists which falls outside of the thirty (30) day requirement. Defendant has submitted no proof of mailing of the verification requests sent herein, though Defendant submits proof in admissible form, of the mailing of the NF-10 by way of Mr. Barth’s Affidavit, as stated above, Thus, the purported proof of the Verification Requests and follow-up letters “amounted to unsubstantiated hearsay”. Ocean Diagnostic Imaging, P.C. v Lumberman’s Mutual Casualty, 2005 WL 1208401 [App Term 2nd and 11th Jud Dist]

Therefore, Defendant only avoids being precluded from denial of the claim in the event of an allegation of fraud. Therefore, Defendant has waived the defense that inappropriate codes and charges have been assigned to the treatment based upon the untimeliness of the denials as such objections do not “implicate coverage matters” and Defendant is precluded from raising them belatedly. Central General Hospital v Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 [1997].

The remaining questions for the Court are whether the low impact study propounded by Defendant gives rise to a “founded belief that the alleged injury did not arise out [*3]of an insured incident”. PDG Psychological, PC v State Farm Mutual Insurance Co., 6 Misc 3d 1022(A) [2005], and whether said study has been submitted in admissible, evidentiary, form. If the study is submitted in admissible form and has a proper factual basis, it is the bedrock upon which a founded belief shall lie. Ocean Diagnostic Imaging, PC v New York Central Mut. Fire Ins. Co., 7 Misc 3d 132(A) [App Term 2nd and 11th Jud. Dist. 2005]. The basis for the denials, as set forth in the NF-10’s is a “low-impact study” purportedly prepared with respect to the incident complained of, the results of which are alleged to have shown that the assignor’s injuries did not result from the accident in question.

In this particular matter, the Affidavit of Albert Cipriani, and employee of FTI/SEA submits an Affidavit detailing the conclusions purportedly drawn in the low impact study, but fails to submit the study to the Court. Mr. Cipriani’s Affidavit was executed in Maryland, before a Maryland Notary, and said is not in admissible form as the Affidavit fails to comply with CPLR § 2309 ( c ), which requires a certificate of conformity to accompany the out-of-state Affidavit. Citibank (South Dakota) N.A. v. Mosquera, 5 Misc 3d 134 (A) [App Term 2nd and 11th Jud Dist 2004]; Ford Motor Credit Co. v Prestige Gown Cleaning Services, Inc., 193 Misc2d 262, 748 NYS2d 235 [Civ Ct Queens 2002]. Thus, the Affidavit is insufficient to defeat Summary Judgment.

Moreover, the Court in Ocean Diagnostic Imaging, was very specific in finding that the “‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’, together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[] not arise out of an insured incident’.” 7 Misc 3d 132 (A) (emphasis added) (cites omitted).

Even if Mr. Cipriani’s Affidavit were in admissible form and properly sworn, it still would be insufficient to adequately raise an issue of fact as to Defendant’s purported founded belief. Mr. Cipriani fails to assert that he was the person who prepared the report and fails to annex the report to Defendant’s papers submitted herein. Thus, Defendant’s opposition papers are “insufficient to warrant denial of [the] plaintiff’s motion for summary judgment”. A.B. Med. Srvcs., PLLC v Electric Ins. Co., NYLJ 4/20/05, p. 25, col. 5.

Accordingly, the Court finds that Plaintiff has made out its case for breach of contract and for recovery of unpaid no-fault benefits. Plaintiff’s Motion for Summary Judgment is granted in all respects, and Judgment granted as follows: on Claim #

1, in the sum of $2,664.33, with statutory interest from December 8, 2001; on Claim #

2, in the sum of $1,020.00, with statutory interest from December 27, 2001; on Claim #

3, in the sum of $680.00, with statutory interest from January 20, 2002; on Claim #

4, in the sum of $255.00, with statutory interest from February 10, 2002. Interest to be calculated by the Clerk of Court at the statutory rate of two (2%) percent per month, compounded, from the respective dates set forth above, Plaintiff also to have judgment for statutory attorneys fees as per the NYCRR at twenty (20%) percent of the total medical bill plus interest thereon, plus costs and disbursements.

The foregoing constitutes the decision and order of the Court. [*4]

Dated: July 8, 2005

____________________________________

GERALD J. DUNBAR, JCC

Civil Court, Queens County

87720/04

Howard G. Lane, J.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor, Donnette Coburn, pursuant to New York’s No-Fault Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on its claims in the amount of $510.00, on the ground that defendant failed to pay or to deny its claims within the statutory 30-day period as required by Insurance Law § 5106 (a).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Stahl v. Stralberg, 287 AD2d 613 [2d Dept 2001]). The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts (see CPLR § 3212[b]). [*2]Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied. (see Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept 1991]).

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

The only exception to the 30-day rule is where an insurer’s untimely denial is based upon the defense of lack of coverage, or where a medical condition for which the patient was treated, was not related to the accident (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). To withstand a summary judgment motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident [see generally Metro Med. Diagnostics, P.C., v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]).

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

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff’s motion for summary judgment is denied. In support of the motion, plaintiff submits the affirmation of its attorney and the affidavit of Asnodin Dianalan, a purported corporate officer of plaintiff corporation. It is well settled that an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts, is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, [*3]2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). On a summary judgment motion, the insufficiency of an attorney’s affirmation which is not based upon personal knowledge is not cured even when the attorney’s purported knowledge is based upon the attorney’s review of the client’s file (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) (holding an attorney affirmation submitted in opposition to motion for summary judgment in no-fault action arising out of automobile accident, which asserted that attorney’s knowledge regarding whether proper no-fault insurance form had been sent was obtained from reading of the files, rather than his own personal knowledge of the facts, was insufficient to establish existence of triable issue of fact). Thus, although the affirmation of plaintiff’s attorney affirms that she “reviewed the Assignee’s and Defendant’s (sic) business records in the above-captioned file,” it is still of no probative value and is insufficient to establish the existence of any triable issue of fact.

The affidavit of Asnodin Dianalan, a corporate officer of Maximum Physical Therapy, P.C., is also insufficient to establish that there are no issues of fact concerning plaintiff’s claim in that the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan’s affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan’s affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005]). It is implicit in Mr. Dianalan’s affidavit that his knowledge has been obtained either from unnamed and unsworn employees or from unidentified and unproduced business records. The cogent parts of the affidavit are not facts but conclusions. Such impermissible conclusions and hearsay cannot justify a grant of summary judgment (Republic Natl. Bank of NY v. Winston, 107 AD2d 581 [1st Dept 1985]).

Instead of proffering the facts in admissible form, Mr. Dianalan merely adopts the statements of plaintiff’s counsel as contained in the attorney’s affirmation. Plaintiff by reference to the attorney affirmation does not cure the insufficiencies of his affidavit, as the attorney’s affidavit is a mixture of factual statements, inferences, conclusions and legal argument (see Howell Mfg. Corp. v. [*4]Leiblein, 32 Misc 2d 50 (Dist Ct., Nassau County, 1962) (where the court held that the practice of adoption by reference of an attorney’s affirmation on a motion for summary judgment “should not be encouraged.”) By adopting the contents of an affirmation which has no probative value, plaintiff’s affidavit which is devoid of material facts is also of no probative value.

Additionally, the affidavit of plaintiff’s corporate officer is defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that it is separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Prac § 205 at 324 [3d ed]). An affidavit should ordinarily begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., “John Smith, being duly sworn, deposes and says”). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff’s Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)].

Because plaintiff’s affidavit does not satisfy CPLR § 3212(b), plaintiff is not entitled to summary judgment. Accordingly, plaintiff’s motion is denied. Plaintiff failed to prove that it submitted a timely and proper notice of claim pursuant to the No-Fault statue for medical treatment or services rendered, which defendant had not paid (see Park Health Center v. Prudential Insurance Co., 2001 NY Slip Op 40650[U]). As plaintiff’s submissions do not constitute evidentiary proof in admissible form (A.B. Medical Servs. v. Eagle Ins. Co., 3 Misc 3d 8 [NY App. Term, 2003]; Rue v Stokes, 191 AD2d 245 [1st Dept 1993]), and plaintiff has failed to provide a proper and sufficient affidavit from a person with personal knowledge of the facts (see CPLR § 3212), it has failed to raise triable issues of fact.

Accordingly, as there are issues of fact requiring a trial, summary judgment

is unwarranted.

This constitutes the decision and order of this court. [*5]

Dated, July 7, 2005________________________________

Howard G. Lane

Judge, Civil Court

[*1]

Civil Court of the City of New York, Queens County, June 8, 2005

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Louis F. Chisari of counsel), for defendant. Sanders & Grossman, P.C., Mineola (David M. Barshay and Steven Neuwirth of counsel), for plaintiff.

OPINION OF THE COURT

Bernice D. Siegal, J.

The within action to recover unpaid no-fault benefits came before the court by defendant’s order to show cause moving to stay some 60 pending actions, to consolidate the matters for the purposes of amending the answers to include an affirmative defense of fraud in the incorporation of the provider professional corporation and for such other relief as the court deems just, proper and equitable. As this order to show cause was brought on the heels of the Court of Appeals decision in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005] [hereinafter referred to as Mallela III]), and given the significance of the court’s determination herein, the matter was set down for oral argument to aid in the court’s deliberation. For the reasons set forth below and in light of the Court of Appeals’ recent pronouncements, based upon the most favorable reading of the facts and the documents submitted by defendant (which, for the purposes of this motion, plaintiff does not at this point dispute), the court grants defendant’s prayer for relief to the extent of consolidating the 61 actions with the within matter for the purposes of amending the answer and setting same down for a framed issue hearing on August 2, 2005 as to whether the plaintiff professional corporations were fraudulently incorporated under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c). The defendant shall amend and serve its answer in the form annexed to defendant’s motion papers as exhibit F together with a copy of this decision within 10 days from date of entry of the within order.

The relevant allegations and arguments are as follows:

Metroscan Imaging P.C., the provider in the instant matter, is one of at least four corporations purportedly incorporated by one Herbert Rabiner, M.D. Dr. Rabiner, on behalf of the professional corporations, entered into a management agreement with Metroscan Resonance Imaging, Inc. and Parkway Magnetic Imaging [*2]Resonance Imaging, Inc. (collectively referred to as the Manager) whereby the medical groups pay for the “management and administrative services, the provision and maintenance of space and equipment, the furnishing of supplies and support personnel and other services” for fees (e.g., $32,000,000 for the first year), and further provided other rights, including a right of first refusal by the Manager when a shareholder of the professional corporation sought to sell. Defendant alleges that “Dr. Rabner [sic] sold his medical license to those entities named above to maintain the appearance that the companies were owned by a physician. When in actuality the corporate entities were owned, controlled and operated by non-physicians.” (Affirmation of Louis F. Chisari, Esq., dated Apr. 4, 2005.) Defendants state that these allegations form, in essence, a “founded belief” that the medical professional corporations were fraudulently incorporated and, if the court finds such fraudulent incorporations, the insurer is under no obligation to reimburse the providers pursuant to the recent Court of Appeals decision in Mallela III. Plaintiff argues that fraud in the incorporation is a defense that does not vitiate coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]) and, in any event, that these claims are not subject to the amended regulations which, concededly, would provide that insurers are not required to reimburse professional corporations that have been fraudulently incorporated (11 NYCRR 65-3.16 [a] [12]).

Analysis and Conclusions

Heretofore, the Court of Appeals has bowed to the express purposes in the now decades old Comprehensive Motor Vehicle Insurance Reparations Law, commonly known as New York’s No-Fault Insurance Law. (Insurance Law § 5101 et seq.) “No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits. That is part of the price paid to eliminate common-law contested suits.” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997] [citation omitted].) Presbyterian and its progeny continue to limit the options of insurers binding them, not inappropriately nor extrajudicially, with strict deadlines and procedures and, if not adhered to, excluding all but a few diehard defenses as to payment (see Central Gen. Hosp. v Chubb Group, supra [the so-called “lack of coverage” defense]). Trial and appellate courts have charted a course with Presbyterian and Chubb as intractable guideposts, refusing to permit insurers to interpose various defenses at the time of litigation, either pursuant to the Presbyterian exclusion or that the defenses must be based solely upon a clearly worded denial (see General Acc. Ins. Group v Cirucci, 46 NY2d 862 [1979]). Thus, unless provided for in a timely denial, payments must be made except when the insurer could establish “a founded belief” that the injuries were not sustained in a covered motor vehicle accident (see Central Gen. Hosp. v Chubb, supra at 199).

In reaction to what the Superintendent of Insurance perceived, and is unfortunately well documented, as a deluge of fraudulent claims, both as to fraud in the accident and as to the care rendered, amended regulations were promulgated placing increased restrictions on claimants and lessening the burden on insurers by broadening the acceptable reasons to deny claims and strengthening insurers’ muscle in investigating claims. The Court of Appeals unanimously held that Regulation 68 (11 NYCRR part 65), although manifestly altering the way claims [*3]are processed, was well within the lawful authority of the Superintendent of Insurance (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]). Regulation 68, among other subsequent amendments, incorporated in the endorsement portion of the regulations the right of the insurer to request that the claimant or insured be subject to an examination under oath (11 NYCRR subpart 65-3) and, significantly, Regulation 68-C, promulgated outside of the policy endorsement, provides that “[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” (11 NYCRR 65-3.16 [a] [12]). In upholding the amended regulations, the Court of Appeals noted:

“Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud. Reports of no-fault fraud rose from 489 cases in 1992 to 9,191 in 2000, a rise of more than 1700% . . . By one estimate, the combined effect of no-fault insurance fraud has been an increase over $100 per year in annual insurance premium costs for the average New York motorist.” (Serio, supra at 861.)^[FN1]

Prior to the promulgation of these amended regulations and the ensuing decision in Serio, State Farm Mutual Automobile Insurance Company commenced an action in Federal District Court (State Farm Mut. Auto. Ins. Co. v Mallela, 175 F Supp 2d 401 [ED NY 2001] [Mallela I]) seeking a declaratory judgment that it is not required to reimburse providers who have “willfully evaded New York Law prohibiting [nonlicensed providers] from sharing ownership in [professional] corporations” (Mallela III at 319). After dismissal of that action and the promulgation of the new regulations, a second case was commenced—Mallela II. (State Farm Mut. Auto. Ins. Co. v Mallela, 2002 WL 31946762, 2002 US Dist LEXIS 25187 [ED NY 2002].) In Mallela II, on a motion to dismiss, Judge Sifton found that the amended regulations effective April 2002 were “unlike” the old regulations in that “[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.” (Mallela II, 2002 WL 3194762, *4, 2002 US Dist LEXIS 25187, *14, quoting 11 NYCRR 65-3.16 [a] [12].) Further, the court noted that the Department of Insurance viewed these regulations as a clarification rather than a new requirement. As the no-fault claims arose under the old regulations, Judge Sifton did not disturb an earlier ruling and concluded that “an insurer may not refuse to pay a benefits claim based upon [*4]an allegation that the provider has a true owner . . . who does not possess a license to practice medicine” (Mallela II, 2002 WL 3194672, *11, 2002 US Dist LEXIS 25187, *38). Significantly, the District Court made no distinction as to whether the claims fell under the old regulations or new ones. In finding State Farm’s argument wanting with respect to the amended regulations cited above, Judge Sifton stated: “I am reluctant to undermine the legislative goal of speedy payment in order to permit insurers such as plaintiff to avoid paying licensed medical service providers for medically necessary services provided to insured individuals by licensed physicians.” (Id.)

The Court of Appeals of the State of New York had no such reluctance when responding affirmatively to the certified question posited by the Second Circuit, that is, whether

” ‘a medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508, and N.Y. Education Law § 6507 (4)(c) [is] entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq., and its implementing regulations, for medical services rendered by licensed medical practitioners’ . . .

“We accepted the certification and now answer that such corporations are not entitled to reimbursement.” (Mallela III, supra at 320.)

Judge Rosenblatt unequivocally tempered the legislative imperative of a speedy claims process underpinning the earlier Court of Appeals’ pronouncements and Judge Sifton’s dismissal by specifically holding that “on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law.” (Mallela III, supra at 321.)

Defendant herein argues that Mallela III informs the current litigation, that is, claims made prior to the promulgation of section 65-3.16 (a) (12), irrespective of the reason for the denial or whether such reason is the basis of a timely denial, are nonetheless subject to this policy choice.

The court concurs. The Court of Appeals makes no such distinction, even as the decision has, at its foundation, the new regulation, effective April 4, 2002. Given the procedural posture of the no-fault claims in question in the federal litigation, specifically claims that matured prior to the effective date of the “new” regulations, to read the Mallela III decision as only pertaining to claims maturing post-April 4, 2002 is simply illogical and would negate New York’s highest court’s finding, to wit: “The Superintendent’s regulation allowing carriers to withhold reimbursement from fraudulently licensed medical corporations governs this case.” (Mallella III at 321.)

Contrast the Court of Appeals’ consideration of the second question, that is, “[*5]whether, if the fraudulent corporations were not entitled to reimbursement, [could State Farm] recover money already paid out under theories of fraud or unjust enrichment,” and the Court’s answer to that question: “[N]o cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before that regulation’s effective date” (Mallela III, supra at 322 [emphasis added]).

Again, the court notes that all the claims, which are the subject of the federal litigation, ripened before the effective date of the new regulation, and yet, the only distinction that the Court of Appeals has made is whether payment was made before or after the effective date.^[FN2] Significantly, the Court of Appeals declined to make a specific finding in this matter as the complaint was unclear as to whether State Farm “has paid money to [providers] after the amended regulation took effect.” (Id. [emphasis added].)

Thus, the court finds that 11 NYCRR 65-3.16 (a) (12) applies to the subject actions. “[R]esolution of the critical issues turns on identification and balancing of fundamental components of public policy” (Murphy v American Home Prods. Corp., 58 NY2d 293, 305 n 2 [1983]). In a departure from previous precedent, the Mallela III court placed protection against fraud squarely ahead of speedy resolution of no-fault provider claims. Before Mallela III, the courts in their haste to comply with the “fundamental components” of the legislative imperative behind the no-fault insurance statute failed to identify, let alone balance, competing policy imperatives. The New York Constitution provides that “[t]he protection and promotion of the health of the inhabitants of the state are matters of public concern.” (NY Const, art XVII, § 3.) Illustrative of this important public policy is a decision of the Appellate Division, Third Department, which, in upholding a differential tax code for professional corporations, found that “[p]rofessionals are subject to stricter State supervision and licensing requirements, in order to maintain standards of responsibility for the protection of the public.” (Matter of Manganaro v Tully, 88 AD2d 206, 209 [3d Dept 1982].) Corporations formed specifically to defraud the public and abuse the public trust must not be allowed to reap windfall profits, even in the face of competing compelling public policy.

However, that is not the end of the inquiry as the carriers must “demonstrate behavior tantamount to fraud” (Mallela III at 322) and not merely technical violations (e.g., late filings). Fraud in the incorporation now joins the long-standing Chubb defenses which withstand [*6]exclusion.

The court further holds that the defense is effective only if the insurer initially can show by “fact or founded belief” fraud in the incorporation and, therefore, no reimbursement would be mandated. Defendant herein has articulated a “founded belief” that the health providers, all incorporated by Dr. Rabiner and all subject to a management agreement with nonlicensed professionals, have violated both New York’s Business Corporation Law and Education Law.

Footnotes

Footnote 1: As recently as April 25, 2005, the Court of Appeals chose to use these statistics and their import—abuse of the entire no-fault insurance scheme—in reiterating the tests courts should employ to determine “which [claims] may proceed in court” in personal injury cases arising from motor vehicle accidents under no-fault. (Pommells v Perez, 4 NY3d 566, 571 [2005].)

Footnote 2: Plaintiff herein argues that the court may not impose the new regulations upon claims that arose subject to the “old regulations” (e.g., accidents occurring under a policy that existed prior to April 5, 2002), citing recent decisions on the lack of retroactivity of other “new regulations” such as the requirements of examinations under oath (EUO). That argument is misplaced. The EUO provision is part of the endorsement of the insurance policy (Regulation 68-A) and clearly, when determining the rights and obligations, one must look to the policy endorsement then in effect. (Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004].) However, the regulation which is the subject of this litigation is not part of the policy endorsement and therefore is not subject to the same restriction.

[*1]

Civil Court of the City of New York, Queens County, March 21, 2005

APPEARANCES OF COUNSEL

Baker & Barshay, LLP (David Barshay of counsel), for plaintiff. Robert P. Tusa (Julie Jassem of counsel), for defendant.

OPINION OF THE COURT

Gerald J. Dunbar, J.

Plaintiff, medical supplies provider Sunnyside Plus, Inc., assignee of Rene Attias, instituted this action pursuant to Insurance Law § 5106 to recover first-party no-fault benefits from defendant insurer Allstate. Plaintiff Sunnyside was denied payment for medical supplies furnished to the assignor Rene Attias, pursuant to a prescription for said supplies issued by the insured’s treating physician, Dr. Viviane Etienne, M.D., associated with the Astoria Wellness Medical, P.C.

The assignor, Rene Attias, was insured under a no-fault policy issued by Allstate which was in force at the time of the accident in which the vehicle driven by the assignor was struck from the rear. The parties stipulated that the no-fault benefits were properly assigned to Sunnyside who submitted a claim form to Allstate in the amount of $1,159.25 for medical equipment of a LSO with APL control custom fitted; the parties further stipulated that the defendant timely denied payment on the grounds of medical necessity based upon a peer review, and that the only issue for trial was the medical necessity of said medical equipment.

The court conducted the bench trial on March 15, 2005. At trial, the defendant stipulated that plaintiff had met its prima facie case and the only issue reserved for trial was the defendant’s defense of lack of medical necessity pursuant to Insurance Law § 5102 (a) (1) as set forth in defendant’s answer as the third affirmative defense.

The defendant called one witness, Dr. William Ross, a licensed medical doctor who was qualified as an expert by agreement between counsel, and author of a peer review upon [*2]which the defendant denied the claim. Dr. Ross testified that his peer review relied upon four items provided to him by a third-party vendor of peer reviews retained by the defendant. These were: (1) the original bill for medical supplies submitted to Allstate, (2) the initial medical examination report of Dr. Viviane Etienne, M.D., (3) Dr. Etienne’s prescription dated November 15, 2001 for a “LSO [with] APL control (custom fitted),” and (4) the radiology report of Dr. C. Beinart, M.D., of Radiology Imaging Associates addressed to Dr. Etienne the treating physician.

After Dr. Ross was asked to render his professional opinion based upon the documents, plaintiff’s counsel objected, and the court allowed a voir dire of the witness. Dr. Ross testified on voir dire that he did not examine Rene Attias, did not view the MRI, and based his peer review solely upon the treating doctor’s reports. Neither Dr. Etienne’s report as the treating physician, nor the radiology report were offered or in evidence. The question before the court was whether the expert witness could base his opinion solely upon out-of-court hearsay documents not in evidence. Clearly, if the MRI itself or either report were in evidence, Dr. Ross could opine on documents in evidence.

To be admissible an expert’s opinion must be based upon either facts personally known to the expert or facts or documents in evidence. (Cassano v Hagstrom, 5 NY2d 643 [1959]; Prince, Richardson on Evidence § 7-308 [Farrell 11th ed].)

“It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002].)

The Court of Appeals has held that an expert witness may testify that he or she relied on out-of-court material provided that it is of a kind generally accepted in the profession as reliable and there is evidence presented establishing the reliability of the out-of-court material referred to by the witness. (Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984].) The Court of Appeals went on to take the opportunity to reiterate the requirement that, “[i]n order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material” (id. at 726). There was simply no evidence presented regarding Dr. Etienne, the health care professional who prepared the initial examination report, and Dr. Beinart, who prepared the radiologist’s report, or under what circumstances either were prepared. (Faust v New York City Tr. Auth., 4 Misc 3d 89, 91 [App Term, 2d & 11th Jud Dists 2004].) The mere fact that the report was a medical report does not suffice to render it reliable. (Borden v Brady, 92 AD2d 983, 984 [3d Dept 1983]; Wagman, 292 AD2d at 87, supra; People v Sugden, 35 NY2d 453, 460-461 [1974]; see also, Barker, Current Trends on Rules for Hearsay, 75 NY St BJ 28 [May 2003].)

The defendant additionally failed to offer the MRI film under the convenient method established by the Legislature for the admission of MRI film without any foundation. (CPLR [*3]4532-a.) Similarly, the defendant offered no information on the reliability of the out-of-court hearsay treating physician’s reports; to the contrary, Dr. Ross stated he never examined the patient Rene Attias, and that he knew nothing about the practices of either Dr. Etienne or Dr. Beinart, which would allow him to opine about the reliability of their reports. Dr. Ross was left with nothing in evidence upon which to base his opinion, nor were there out-of-court statements by a witness who testified in the proceeding upon which Dr. Ross could opine. Dr. Ross was thereby precluded from offering his opinion, for which there was no factual basis in evidence, as a matter of law. (Adkins v Queens Van-Plan, 293 AD2d 503, 504 [2d Dept 2002]; Flamio v State of New York, 132 AD2d 594 [2d Dept 1987]; see also, Philippe v Ivory, 297 AD2d 666 [2d Dept 2002]; Greggs v Kurlan, 290 AD2d 533 [2d Dept 2002].)

Based upon the credible and admissible evidence, the defendant has failed to prove its defense of lack of medical necessity by a fair preponderance of the evidence. Judgment for the plaintiff to be entered in the amount of $1,159.25, plus statutory interest (11 NYCRR 65.15), statutory attorney’s fees (11 NYCRR 65.17), together with the costs and disbursements of this action.

[*1]

Civil Court of the City of New York, Queens County, March 15, 2005

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Meredith P. Gursky of counsel), for defendant. Baker, Barshay & Neuwirth, LLP, Hauppauge (Michael C. Hayes of counsel), for plaintiff.

OPINION OF THE COURT

Charles J. Markey, J.

The immortal Justice Cardozo stated: “[W]hile the workings of a novel method are untested by a rich experience[,] [t]here must be advance by trial and error” (Louis K. Liggett Co. v Lee, 288 US 517, 586 [1933] [dissenting op]). In the recent, dramatic proliferation of actions for no-fault first-party benefits, Civil Court judges are the foot soldiers required to address, in the first instance, various novel legal issues, until their appellate colleagues, often weighing the pragmatic consequences of a particular holding, get the opportunity to review decisions and thereby formulate a body of governing jurisprudence.

The important, principal issue of first impression in this state raised by the present case is the appropriate scope of an examination before trial (EBT) in an action by a health care provider for no-fault first-party benefits. Even more to the point, the main issue is whether the recent holding of first impression in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [Civ Ct, Queens County 2005]), making the insurer’s denial of claim form, the NF-10, “the appropriate yardstick for measuring the legitimacy of the demanded discovery” (7 Misc 3d at 680), concerning various disclosure devices available under CPLR article 31 other than depositions, now should be extended to EBTs in setting their parameters. Alternatively put, the issue is whether the subject matter of the questioning at an EBT in a case for no-fault first-party benefits—absent a case of fraud (e.g., staged accident) or lack of coverage—should be confined, in principal part, to the four corners of the NF-10.

In a summons and complaint dated August 5, 2002 and served on August 16, 2002, Baker & Barshay, LLP, on behalf of its client, plaintiff health care provider Socrates Psychological Services, P.C., sought the sum of $1,061.62 for services allegedly provided to its assignor, Aleksander Romanov. The defendant insurer, Progressive Casualty Insurance Company, was then represented by Delany & O’Brien. [*2]

Progressive’s answer contained 13 “separate and complete” affirmative defenses. With its answer, dated September 30, 2002, Progressive simultaneously served a demand for an EBT. Baker Barshay countered by also serving demands for an EBT and interrogatories. The simultaneous service of an EBT notice with a demand for responses to a set of written interrogatories, done by the attorneys for the parties in 2002, was later barred in Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]).

The action was filed with the Clerk of the Court on June 25, 2003. Progressive’s new counsel, Freiberg & Peck, LLP, moved to compel responses to defendant’s discovery demands, and Baker Barshay, on behalf of Socrates, cross-moved for similar relief. On October 27, 2003, the parties’ counsel, resolving the motion and cross motion, prepared a stipulation in court that was so ordered by the undersigned. It required that the parties, at the risk of preclusion at trial, exchange answers to all documentary discovery demands two weeks in advance of Socrates’s deposition. The so-ordered stipulation, dated October 27, 2003, erroneously scheduled plaintiff’s deposition for January 7, 2003, although a letter by defense counsel mailed on October 29, 2003, made clear that the date on the stipulation for the EBT was an obvious typographical error and that it would be held on January 7, 2004.

On January 7, 2004, the deposition of Socrates did not occur, and defense counsel Freiberg & Peck, on the same day, served a motion to strike plaintiff’s pleadings for its absence at the court-ordered EBT. By cross motion, dated February 25, 2004, Socrates’s counsel, then reformed as Baker, Barshay & Neuwirth, LLP, retaliated, seeking to strike defendant Progressive’s answer for its failure to answer plaintiff’s discovery demands, as required by the so-ordered stipulation.

A second round of motions and cross motions was exchanged, again rehashing the parties’ dispute on a matter as basic as discovery, this time occupying the energies of another Judge, the Honorable Kevin J. Kerrigan. Judge Kerrigan so ordered another stipulation dated March 2, 2004, believing that he had successfully brokered an agreement between the two intransigent parties. Since the copy of Judge Kerrigan’s so-ordered stipulation attached to Progressive’s present and third motion to strike Socrates’s complaint is completely illegible and the original is missing from the Court Clerk’s file, this court determined its gist from other exhibits annexed to defendant’s motion (a confirmation letter and a transcript of a deposition noting an absent witness). Judge Kerrigan, in his order, reportedly required both parties to produce witnesses for an EBT on or before May 6, 2004, at the risk of striking a pleading for the failure to so produce.

On May 6, 2004, Meredith Gursky, Esq., an associate of Freiberg & Peck who had arranged for a deposition, made a statement on the record noting her production of a witness on behalf of defendant Progressive and the absence of plaintiff Socrates and its counsel. Her making a record before a court reporter was a smart, protective measure, although not necessary to gain dismissal of the complaint (see, Pueblo Med. Treatment v Progressive Cas. Ins. Co., 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [Civ Ct, Queens County 2005] [involving the same law firms appearing in this case; complaint dismissed for failure to abide by a court-ordered stipulation]).

On June 24, 2004, a third volley of motions and cross motions was launched, constituting the present dispute. Freiberg & Peck served a motion to strike plaintiff’s complaint and sought [*3]sanctions against Baker Barshay in the amount of $132.50 for the wasted deposition session of May 6, 2004, and related costs. The motion first appeared on August 6, 2004, in Part 41, where dispositive motions in no-fault actions are heard. On that date, Judge Denis Butler set a briefing schedule, endorsing it on the motion papers (Socrates was to serve either a cross motion or opposition papers no later than September 28, 2004; Progressive was to serve any opposition to a cross motion or, in the absence of a cross motion, its reply no later than October 27, 2004; and Socrates’s reply, should it have made a cross motion, was to be served by November 16, 2004). The new return date was scheduled for March 3, 2005—a full eight months later, and a “Final” marking was given.^[FN1]

Plaintiff’s counsel, Baker Barshay, timely served and filed the present cross motion seeking summary judgment, predicated on its allegation that Progressive’s denial of claim, the NF-10, was untimely. In its cross motion, Socrates first addressed Progressive’s motion to strike the complaint. First, Socrates complained that Progressive never responded to plaintiff’s demand for verified answers to interrogatories. Without such advance discovery, plaintiff should not be thrown blindly into a deposition. Second, Socrates maintained that the stipulation that was so ordered by the undersigned in 2003 expressly made any EBT contingent on the prior exchange of written discovery between the parties. Baker Barshay had complied with its production, but Freiberg & Peck still had not done so. [*4]

Third, and most significant, Baker Barshay complained that Freiberg & Peck, in numerous other litigations between the two law firms acting as counsel, consistently abused EBT notices. Baker Barshay contended that Freiberg & Peck first takes an EBT of a managing or administrative employee of a plaintiff health care provider only to complain, subsequently and inevitably, that such a deposition proved to be insufficient and that now it needed to depose the actual doctor or health care professional who rendered the services.

Rather than adhere to the briefing schedule set by Judge Butler, on August 6, 2004, requiring that Progressive’s opposition papers to a cross motion be served on October 27, 2004, Freiberg & Peck, by an associate other than Ms. Gursky, prepared an affirmation in opposition dated March 2, 2005—over four months late—and attempted to hand the original to the undersigned on the return date of March 3, 2005. This court, from the bench, rejected the papers, and endorsed the front sheet of the attempted opposition: “UNTIMELY PAPERS—not to be read.” The court further notes that, not only were Freiberg & Peck’s responsive papers untimely, with no excuse, let alone a compelling justification, offered for the incredible lateness, but they were not even accompanied by an affidavit of service! Adhering to its original position, this court has not read or considered Progressive’s untimely opposition to the present cross motion and declines to number such late papers for purposes of the record. Accordingly, the assertions made by Baker Barshay in its cross motion, on behalf of Socrates, are not refuted.

This case, even before tackling the principal issue of the proper scope of EBTs in a no-fault first-party benefits litigation, raises several important policy decisions. First, this court underscores the importance of adhering to a briefing schedule. In countless short-form orders, this court has indicated that briefing schedules are not mere, precatory guidelines, and it has invariably rejected late responsive papers no matter how serious or worthy the contentions contained therein. If this court seeks to earn the respect of its briefing deadlines by judicial colleagues, it must scrupulously enforce the schedules set forth by fellow judges. Failure to enforce those deadlines, absent a highly compelling circumstance, furthermore, sends the wrong message to the bar and permits lawyers to conclude falsely that such deadlines are malleable (see, Starke v Bergles, 444 F Supp 469, 470 [ED Wis 1978] [United States District Court refused to read and consider reply papers that were untimely under briefing schedule]; accord, Instituto Nacional De Comercializacion Agricola [Indeca] v Continental Ill. Natl. Bank & Trust Co., 858 F2d 1264, 1270-1271 [7th Cir 1988] [violation of briefing schedule is a serious breach]; People v Velit, 2002 NY Slip Op 50066[U] [Crim Ct, Queens County 2002] [briefing schedule is not a mere precatory guideline]; see generally, Pueblo Med. Treatment, 2005 NY Slip Op 50287[U], *3, supra [court, in rejecting a second chance to take a so-ordered deposition, stated: “Any other result . . . would send a mischievous message that apparent finality actually does not mean final”]).

Second, this court is concerned about Baker Barshay’s repeated attempts to sidestep its obligations of providing court-ordered discovery. Freiberg & Peck now has had to bring three motions to compel discovery, in this action alone, on a matter as basic as a deposition. Hardly any discovery has been exchanged, no witnesses have been produced, and this Civil Court action is still languishing—now almost three years since the service of the summons and complaint—despite the efforts of two judges reviewing three motions, three cross motions, and two so-ordered stipulations. [*5]

Whenever this court identifies conduct that is inconsistent with professional norms and then comments on a lawyer’s negligent lapses or active breaches, it does not do so in an effort to upbraid, embarrass, and humiliate, but rather to help eliminate the disrespect exhibited by some lawyers to their obligations, their adversaries, and the courts. By identifying and exposing such conduct, this court hopes to educate the bar and thereby deter similar lapses by other lawyers. The public’s confidence in the operation and integrity of the courts requires no less.

Holmes’s intriguing maxim that “[t]he life of the law has not been logic: it has been experience” (O.W. Holmes, Jr., The Common Law, at 1 [Little, Brown & Co. 1st ed 1881]) can be appreciated by a contextual understanding of events, depicting ruthless posturing even in the cottage industry of the no-fault first-party benefits bar (see, Vladimir Zlatnick, M.D., P.C., 2 Misc 3d 347, 348 [2003], supra). In a seminal case during the proliferation of no-fault first-party benefits litigation, Albatros Med. v Government Empls. Ins. Co. (196 Misc 2d 656 [Civ Ct, Queens County 2003]), discussed in further detail below, Baker Barshay was unsuccessful in arguing to Judge Edgar G. Walker that EBTs were unnecessary in such civil actions. Following Albatros, Baker Barshay and other plaintiffs’ law firms were then hit with tidal waves of EBT notices by defense firms. The service of an EBT notice, together with an answer, is now an automatic, reflexive knee-jerk reaction by every defense firm in the no-fault first-party benefits field (see, Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co., 2 Misc 3d at 348, supra). As discussed below, the EBT notices, like anything else in life, serve a salutary purpose, but are also capable of being abused, even apart from the content of the entire deposition itself.

The next step in the evolution of the use of EBT notices in a no-fault first-party benefits case was the court’s holding in Vladimir Zlatnick, M.D., P.C. (id.). Zlatnick attempted to curb, in no-fault cases, the defense bar’s resorting en masse to EBT notices, coupled to a demand for answers to a set of written interrogatories. In Zlatnick, where Baker Barshay represented the plaintiff, the court, as stated above, prohibited a party from simultaneously serving an EBT notice and a demand for answers to written interrogatories. The court in Zlatnick, employing a line of reasoning from commercial litigation, prohibited such wasteful duplication of discovery. Under Zlatnick, a party would be permitted resort to a second discovery device, either an EBT or interrogatories, solely to fill in any gaps following the use of the first form of disclosure. Thus, if plaintiff provided answers to interrogatories, defendant’s resort to an EBT, if truly needed, should be strictly confined to completing any gaps in the prior disclosure and not be manipulated into a vehicle to harass a plaintiff by taking discovery de novo over the same terrain.

Despite the Zlatnick holding, some litigants, principally defendant insurers, continue to serve simultaneously an EBT notice and a demand to answer a set of interrogatories. To halt such violations of Zlatnick and to put enforcement muscle to that ruling, the court in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [2005], supra) recently made clear, inter alia, that it would penalize a Zlatnick violation by striking one or both of the offending, duplicative notices.

In the face of multitudinous defense discovery motions demanding EBTs, Baker Barshay entered into many so-ordered stipulations in this court, agreeing to an EBT and to preclusion of evidence for failure of its plaintiff clients to attend a deposition. Only later, presumably overwhelmed by the number of obligations into which it had contractually entered and eventually cognizant of the full sweep and import of its actions, Baker Barshay sought to sidestep or ignore [*6]the so-ordered stipulations and even tried to redefine the word “preclusion.”

Out of fairness to Baker Barshay, it is conceivable that its attempt to discount its own stipulations may have been the product of client realities. Specifically, the stratagem of some, not all, defense counsel, in many litigations for no-fault first-party benefits, following Albatros, was to serve an EBT notice upon a plaintiff health care provider, not in a genuine desire to procure essential disclosure; it was served to force the plaintiffs’ no-fault bar to buckle under the weight of attending depositions in countless cases for innumerable hours, without any parameters, when each action sought only relatively little amounts of money, such as the sum of $1,061.62 in the present case (see, Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d at 686, supra [“As a practical consideration, one must surely wonder whether in claims for minor sums of money, such as those in three of the six cases, seeking $202.20, $575, and $505.50 (the other three cases each involving only about $1,800), whether a plaintiff’s counsel will even consider it affordable or ‘smart business’ to spend several hours in drafting opposition papers and traveling to and attending court appearances to challenge a patently oppressive demand”]).

A principal of a plaintiff health care provider, its doctors, and managerial staff, moreover, could be pulled away from their practices and livelihoods for a time period that could entail days, litigating over minor sums. Health care providers would bewail their plight to their counsel, whereas defense counsel, well compensated by insurance carriers for both attending and stretching out a deposition, would experience no discomfort.

Mindful of the aforementioned maxim by Holmes, this is the hard core reality of no-fault first-party benefits litigation as it is currently practiced. In many cases, an EBT in a no-fault case may conceivably yield helpful information pertinent to a defense that was specifically contained in a timely served NF-10. However, the undersigned, in over three years of presiding over no-fault first-party benefits bench and jury trials, cannot recall a single instance of a defendant insurer attempting to use a plaintiff’s EBT transcript at trial, either in its case-in-chief or by way of impeachment.

In making the aforementioned observations, this court is not imputing any bad motive to Freiberg & Peck in this action. Quite the contrary, the court believes that Freiberg & Peck was sincere in its desire and genuine in its need, throughout the present case, to depose the health care provider about the psychological services allegedly rendered so that it could competently defend its client. The aforementioned observations are meant solely (1) to supply a backdrop as to Baker Barshay’s actions, although a failure to meet one’s commitments cannot be excused, especially when expressed in a court-ordered stipulation, and (2) to illuminate the latent abuse of EBTs in a no-fault first-party benefits case.

Baker Barshay’s attempts to renounce, sidestep, or wriggle out of its so-ordered commitments went without success, resulting only in dismissals of its cases and judicial condemnation of its practices (see, e.g., Pueblo Med. Treatment, 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [2005], supra; Hoss Med. Servs., P.C. v Government Empls. Ins. Co., 4 Misc 3d 521 [Civ Ct, Queens County 2004, Walker & Siegal, JJ.]).

This court now has to discern how to approach Socrates’s cross motion for summary judgment. Three options are available. One approach would be to reject it summarily. It could [*7]well be argued that the cross motion, following two so-ordered stipulations, was nothing more than plaintiff’s ploy to invoke the automatic stay of discovery that attaches upon making a dispositive motion, thereby further delaying Socrates’s EBT. The two so-ordered stipulations did not contain any language directing that discovery proceed notwithstanding the pendency of any dispositive motion (CPLR 3214 [b]). In the absence of such indispensable language, the fact that the two discovery stipulations in this action were so ordered by a court still does not permit an exception to the general rule that a dispositive motion stays all discovery (see, Rizz Mgt. Inc. v Kemper Ins. Co., 4 Misc 3d 1005[A], 2004 NY Slip Op 50723[U] [Civ Ct, Queens County 2004, Siegal, J.] [reviving a so-ordered stipulation following the denial of a summary judgment motion]).

This court, in its discretion, in light of the procedural history of this case, as a second alternative, could also deny the cross motion for summary judgment without prejudice to its renewal following the completion of the so-ordered discovery (see, McGlynn v Palace Co., 262 AD2d 116, 117 [1st Dept 1999]). However, in light of the circumstances of this case, especially the years of antagonism and hostilities between the parties’ counsel that have produced a lot of motions—but no movement—in this case, this court opts for a third alternative, of tackling Socrates’s present cross motion on its merits.

The court must deny the cross motion for two reasons. First, plaintiff’s counsel failed to include the entire denial of claim form, the NF-10. The copy of the NF-10 attached as an exhibit to plaintiff’s cross motion contained only one sheet of the denial, but it surely must have contained more than one sheet because, in the space provided for stating the reason for the denial, the insurer typed in “see attached.” Perhaps Baker Barshay believed that the chambers of the undersigned was overwhelmed with paper and did not want to further burden the court with the remainder of the exhibit. Obviously, plaintiff’s counsel’s omission raises disturbing questions about either its carelessness or level of candor with the court. This court insists on seeing an entire NF-10 and not simply the page containing only the dates of the claim’s mailing and its receipt by the insurer.

Second, the date of the bill, as reflected on the sole sheet of the NF-10 provided by plaintiff’s counsel, is January 15, 2001. The NF-10 continues, however, to state that the insurer received the bill on June 29, 2001 and allegedly denied it on July 19, 2001. The plaintiff failed to make a prima facie case for summary judgment because it did not include proof of mailing of the claim and also did not offer a proper explanation of the relevant dates (see, SZ Med. P.C. v State-Wide Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [App Term, 2d Dept 2005]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d Dept 2005]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d Dept 2004]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d Dept 2004]; Amaze Med. Supply v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d Dept 2004]; Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 2d Dept 2004]; PDG Psychological P.C. v State Farm Mut. Ins. Co., 6 Misc 3d 1022[A], 2005 NY Slip Op 50150[U] [Civ Ct, Kings County 2005]; Allstate Social Work & Psychological Svcs PLLC v GEICO Gen. [*8]Ins. Co., 6 Misc 3d 1010[A], 2005 NY Slip Op 50024[U] [Civ Ct, Kings County 2005]).

“[T]he court’s role in a motion for summary judgment is one of issue spotting and not one of issue determination” (Scanlon v Travelers Ins. Co., 849 F Supp 836, 839 [ND NY 1994]; accord, Adickes v S.H. Kress & Co., 398 US 144, 157 [1970] [movant on summary judgment has “the burden of showing the absence of a genuine issue as to any material fact”]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [court’s role on such a motion is issue finding, not issue determination]; Rivera v 2160 Realty Co., L.L.C., 10 AD3d 503, 505 [1st Dept 2004]). The plaintiff’s cross motion for summary judgment is, accordingly, denied.

Since discovery needs to continue in this three-year-old litigation, the court next addresses the primary issue in this case, and one of first impression in this state, of the appropriate parameters of depositions in no-fault first-party benefits litigation. In studying the matter, the court has reviewed each of the pleadings and all the motions and cross motions in the prior proceedings. Baker Barshay, as stated, in opposing the present defense motion, voiced its fear that Freiberg & Peck would not be satiated by one EBT of a managerial employee of a plaintiff health care provider, but predictably would take that deposition and then, claiming dissatisfaction with the testimony procured from the first witness, would demand to depose the doctor or professional who rendered the services.

Baker Barshay’s concern is well-founded. In a prior motion in this case, Freiberg & Peck not only quoted, but put in prominent and isolated boldface type, almost by way of sending a menacing message, the following quotation from Judge Walker’s opinion in Albatros (196 Misc 2d 656, 658 [2003], supra): “Plaintiff, having elected to proceed by way of litigation in the courts, must comply with CPLR article 31. In rejecting the expeditious and economical option of arbitration, plaintiff cannot now seek to use the rules of arbitration in the courts.”

First, Judge Walker’s seminal opinion in Albatros granted to insurers the right to take EBTs in civil actions for no-fault first-party benefits, rejecting Baker Barshay’s position in that case. However, contrary to the implication of defense counsel, nothing in Albatros provides a defendant insurance carrier the right to distort a deposition into a wholesale inquisition of a plaintiff health care provider, to keep its staff hostage under questioning for days, or to demand, as a matter of entitlement in every no-fault case, to take successive EBTs. The Albatros court’s reference to the “expeditious and economical” route afforded by arbitration was not intended as some reason for punishing a plaintiff for not having so proceeded. It was no more than an observation kindred to that given to litigants on a typical evening in the Small Claims Part of this court that if they opt to be heard by an arbitrator, rather than insist upon trial before a judge of the court, their case will be heard quickly and efficiently. Sure, if a litigant chooses, whatever the nature of the dispute, to commence and maintain a civil action, as opposed to proceeding to arbitration, a court will clothe the parties with the panoply of protections provided by law, here, those disclosure devices available under the CPLR.

Baker Barshay’s opposition to the present defense motion to strike also has a substantial basis because of many defendants’ improper use of the various discovery devices afforded by article 31 of the CPLR. The court, in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 25063 [2005], supra), illustrated, by demonstrating in six different motions consolidated for purposes [*9]of the decision, how defense firms in no-fault first-party benefits cases were ignoring the particular purposes of each type of notice of discovery and using them interchangeably, thereby abusing plaintiffs. The court in Metropolitan Radiological refused to condone the practice and the patently abusive demands contained in the notices and denied each of the six defense motions to compel production, to preclude evidence, or to strike a pleading, although made on default. In light of the prevalent abuses of discovery notices by defense firms in that case—and two of the consolidated six cases in Metropolitan Radiological involved motions by Freiberg & Peck—Baker Barshay’s concern that EBTs will similarly be abused in the present case was not paranoid.

The court in Metropolitan Radiological analyzed, under pertinent appellate rulings, that the lodestar for determining a no-fault first-party benefits case is the denial of claim, the NF-10. To avoid a plaintiff’s successful motion for summary judgment, an insurer must state, with a high degree of specificity, in its NF-10, any applicable defense, except for fraud (presently defined only as a staged accident)^[FN2] or lack of coverage, and must stand or fall upon those defenses. If not raised in a timely fashion and with specificity, those defenses will not be entertained later, no matter how meritorious they may be in substance (Metropolitan Radiological, 7 Misc 3d 675 [2005], supra [citing cases]; see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]; Socrates Psychological Servs., P.C. v Lumbermans Mut. Cas. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50690[U] [App Term, 1st Dept 2004] [per curiam]).

The court in Metropolitan Radiological continued that the NF-10 is the only appropriate yardstick for measuring a discovery device’s propriety, not a perusal of any number of the “separate and complete” or “separate and distinct” affirmative defenses contained in the defendant insurer’s answer. The court stated:

“In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and [*10]was done so timely. . . .

“Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.” (Metropolitan Radiological, 7 Misc 3d at 679-680.)

The reasoning of Metropolitan Radiological applies equally to the present situation of the appropriate scope of an EBT. This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10. The four corners of the denial of claim form, the NF-10, and defenses there stated with a high degree of specificity (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]), should yield the examining attorney at an EBT sufficient and fertile avenues of disclosure.

The questioning at an EBT in appropriate cases of fraud and lack of coverage—as defined by appellate courts as exceptions to the general rule that defenses not specifically and timely asserted in the denial of claim, the NF-10, are deemed waived—is not to be limited to the NF-10, especially in light of the Court of Appeals’ avowed public policy to help combat fraudulent no-fault first-party benefits claims (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; accord, United States v Lucien, 347 F3d 45 [2d Cir 2003] [affirming convictions of defendants who participated as passengers in staged automobile accidents designed to exploit New York’s no-fault automobile insurance regime]; see, e.g., Hempstead Pain & Med. Servs., P.C. v Progressive Cas. Ins. Co., 2003 NY Slip Op 51319[U] [Nassau Dist Ct 2003] [ordering EBT of medical provider]; Matter of National Grange Mut. Ins. Co. v Vitebskaya, 1 Misc 3d 774 [Sup Ct, Kings County 2003] [petitioner insurer’s request to stay arbitration was granted in view of showing that collision was staged]). The present case does not involve any allegations of fraud or lack of coverage.

As to Freiberg & Peck’s alleged penchant for needlessly taking successive EBTs, not every no-fault first-party benefits case will require a deposition of the actual health care professional. A deposition of the professional could be required where defenses of medical necessity or concurrent care were specifically and timely asserted in the NF-10. In all other cases, the EBT of a managerial or administrative employee of the plaintiff health care provider should be sufficient as to the contents of the health care file on the assignor, its authentication, and the dates of mailing and receipt of pertinent insurance forms. At any rate, this court, for present purposes, considering the issue of first impression of the appropriate contours of an EBT in an action for no-fault first-party benefits, does not need to establish rules for every permutation and nuance that may arise in other cases.

In this case, the court determines that Freiberg & Peck is entitled to depose Socrates, by taking the EBTs of both a managerial employee and the health care professional who actually rendered the services. Since the dates of the mailing and receipt of various important insurance forms, including the claim, the all-important denial of claim form (11 NYCRR 65-3.8), any timely demand for verification, the NF-3 or NF-5, or demand for additional verification (11 NYCRR 65-3.5), may be important at the trial of this action, an EBT of Socrates’s managerial [*11]person with such knowledge is appropriate and hereby ordered. The court also orders the deposition of the psychologist who allegedly rendered the services. Baker Barshay’s inclusion, in its present cross motion, of only the first page of the NF-10 was, as indicated, not forthcoming in candor, and this court thus draws the inference that the sole page’s reference to “see attached [sheets]” regarding the reasons for the claim’s denial, would permit ample justification for the psychologist’s EBT.

Defense counsel, in the present case, should not question the witness as to affirmative defenses raised in the answer that were not included in the NF-10, unless the case involves the currently recognized exemptions of fraud (e.g., staged accident) and lack of coverage. Questions that seek irrelevant facts, such as the number of rooms in the plaintiff health care facility, the plaintiff’s monthly rent, the number of persons in plaintiff’s employ, trivial information, or the reasons that propelled the health care professional to enter schooling in his/her field of expertise, will not be tolerated.

This court cautions members of the defense bar, in no-fault first-party benefits litigation, who move to compel an EBT, to preclude evidence, or to strike a complaint based on the plaintiff’s failure to appear for a noticed deposition, to append a complete copy of the denial of claim form, the NF-10, as an exhibit to the motion—except for a situation identified in the motion papers as involving the exemptions to the rule of waiver of fraud (e.g., staged accident) and lack of coverage. Absent a legitimate, compelling justification for not attaching it, the failure to include the NF-10 as an exhibit will constitute summary grounds for the motion’s denial (see, Metropolitan Radiological Imaging, P.C., 7 Misc 3d 675 [2005], supra). Even on motions to enforce a prior so-ordered stipulation, inclusion of the entire NF-10 is helpful to a court in determining the appropriate relief.

Finally, while appreciating Baker Barshay’s reluctance to proceed to EBTs in this case for the justifiable grounds set forth above, this court is not content with its failure to adhere to the terms of so-ordered stipulations. No citation to a case involving stipulations should be necessary to remind plaintiff’s counsel of the importance of meeting, at the very least, its written commitments and obligations, let alone those bearing the imprimatur of a court (if Baker Barshay needs such reminders, it should consult both Pueblo Med. Treatment, 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [2005], supra, and Hoss Med. Servs., 4 Misc 3d 521 [2004], supra). Plaintiff’s counsel need look only at the namesake of its own client, the Athenian philosopher of the fifth century B.C.E., Socrates, who both lived and died in a manner reflecting an unwavering commitment to truth and integrity. The corporate Socrates in the present case might not be condemned to drink a cup of poisonous hemlock, but it is, by this court’s order, forced to proceed to the deposition to which it had previously committed itself in two so-ordered stipulations.

In light of the evident antagonism between counsel, in this and other pending litigation, and their refusal to budge and seek accommodation, this court is constrained to detail the terms of engagement for discovery. This court directs and orders that, no later than April 20, 2005, with regard to the set of interrogatories served by Baker Barshay on October 17, 2002, Progressive is to serve complete answers upon Socrates to all of plaintiff’s interrogatories. Each answer is to be prefaced by a restatement of the interrogatory, and the set of Progressive’s answers must be served in verified form, so as to be usable by Socrates at an EBT or trial. If Progressive’s answers are not served timely, Socrates’s counsel shall settle an order, upon notice, for the [*12]undersigned’s signature, striking defendant’s answer with prejudice and entering judgment for plaintiff in the amount of $1,061.62, with statutory monthly interest and statutory attorneys fees, and the costs and disbursements of the action. Such a proposed order shall be submitted initially to the Clerk of Special Term, in room 357, for initial review before onward transmission to chambers.

This court agrees with Socrates’s contention that, pursuant to the plain terms of the so-ordered stipulation dated October 27, 2003, and filed with the Clerk of the Court on October 28, 2003, the holding of any EBTs was contingent upon Progressive’s production of discovery, which defendant failed to do. In this regard, and only because of its failure to provide court-ordered disclosure to Socrates in advance of EBTs, Progressive’s demand for sanctions is, in all respects, denied. Before a party invokes sanctions—and this court would unhesitatingly issue such relief in an appropriate case, and for a sum far greater than that demanded in the present motion—a party should be ready to show its “clean hands,” which was not done here. Should another sanctions motion become necessary in this case by either party, it shall be referred to the undersigned for determination. The court puts both counsel on notice that, henceforth, if improper conduct is committed, the sum awarded in sanctions may well include the attorneys’ fees and related costs of all the prior motions, including the preparation of papers and court appearances, and any amount assessed upon a law firm may not be passed on as a charge to its client.

Also, no later than April 20, 2005, and to the extent not previously provided (although the court believes, on the papers provided, that Socrates has done so), Baker Barshay shall mail to defense counsel the complete health care file maintained by Socrates on the assignor.

Provided that the aforementioned directions are followed, Progressive shall depose the plaintiff on May 11 and 12, 2005. First, on May 11, 2005, at 10:00 a.m., at a deposition facility in Queens County, Progressive shall depose a managerial person of Socrates, focusing principally on the dates of the issuance and receipt of the claim, the denial of claim, and the requests for verification and additional verification. Then on May 11, 2005, at 12:00 noon, and continuing on May 12, 2005, at 10:00 a.m., only if necessary, Progressive shall depose Dr. Mitchell Philip Flaum, Ph.D., as to the psychological services provided. Dr. Flaum’s deposition, aside from obtaining relevant pedigree and background information from the psychologist, shall be strictly limited to exploring the defenses asserted in Progressive’s denial of claim form, the NF-10.

On May 18, 2005, at 10:00 a.m., at a deposition facility in Queens County, Socrates shall depose an employee of Progressive with knowledge of the particular dates of mailing and receipt of the aforementioned claim, the denial of claim, and the requests for verification and additional verification. On May 18, at 12:00 noon, and continuing on May 19, at 10:00 a.m., only if necessary, Socrates shall also depose the claims examiner of Progressive who is in charge of the assignor’s file and possesses knowledge of the facts underlying all of the denials contained in the NF-10.

Only for good cause shown, the court may extend any of the above deadlines by the sending of a letter application to chambers, preferably with the consent of both counsel, requesting and marking a designated space for a so-ordered endorsement, provided that it contains dates certain for all of the aforementioned EBTs.

Should the parties require immediate rulings on the appropriateness of any question or [*13]direction not to answer, during any of the aforementioned EBTs, they, in the presence of the court reporter, and by speaker phone if available, shall call the chambers of the undersigned. Only in the event that the undersigned is unavailable for rulings, both counsel shall appear, with the court stenographer and copies of this decision and order, in room 357 of this court, at 3:00 p.m. of the date of the EBT, and request to be heard by the judge then presiding in Special Term, Part II. The court also cautions both law firms that if it determines and concludes that any party or its counsel is being disruptive, it will, after hearing arguments, strike that party’s pleading and also schedule a hearing to determine the amount of sanctions to be assessed against the law firm itself.

Following the conclusion of all depositions, Socrates shall serve and file a notice of trial. No further motions for summary judgment may be filed by either party in this action.

The defendant’s motion is thus granted only to the extent indicated above.

Footnotes

Footnote 1: The adjournment of eight months in Part 41 given by Judge Butler was the standard adjournment given to nearly all cases, barring exceptional circumstances, that appeared on the Part’s August 6, 2004 calendar. When the undersigned presided in the Part on March 3, 2005, the next standard adjournment was over nine months later, requiring counsel to return in mid-December 2005. The lengthy adjournments are given even on simple motions. They reflect the overflowing dockets of no-fault first-party benefits cases. The return dates are understandably intolerably long, and they would, in fact, be longer but for a rule of this court that bars a law firm from filing more than 10 motions in one day. The Clerk of Special Term and the Part Clerk strictly enforce that rule. Where a law firm in a no-fault first-party benefits case has filed more than 10 motions in one day, the excess gets “marked off” during the call of the calendar “as a violation of the Court’s Rules.” This entire situation may warrant the Legislature’s attention and the Office of Court Administration’s scrutiny on how to better control the massive dockets and yet reduce the lengthy adjournments given on even routine motions. For example, if the parties, on the original return date, get an automatic adjournment as of right of over nine months until the next court appearance—when the judge presiding in Part 41 may take a motion on submission, a litigant’s options are paralyzed for a length of time that defeats justice. These reflections about the current morass echo the observations articulated by other courts (see, Vladimir Zlatnick, M.D., P.C., 2 Misc 3d at 348, 354, supra [current, abusive litigation practices represent a “subversion of the legislative scheme” for speedy payment, disputation, and resolution]; Ostia Med. v Government Empls. Ins. Co., 1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003, Asarch, J.] [court “swamped” with no-fault litigation]; Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352, 352-353 [Civ Ct, Queens County 2003] [teeming dockets threaten “to engulf the state judiciary”]).

Footnote 2: One legal issue that has not been definitively resolved by the Court of Appeals is whether a fraud of a health care provider that is accused, not of excessive or unnecessary billing, but of submitting claims to an insurance carrier for services that were never rendered, should be likened to a staged accident and, therefore, exempt from the general rule of waiver, even though the defense of such a scheme’s existence was not timely and specifically asserted in the NF-10 (but see, Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]).

Supreme Court, Queens County

8934 2004

Jaime A. Rios, J.

By order dated November 23, 2004 this court (Rios, J.) determined, inter alia, that the petitioner Government Employees Insurance Company (Geico) was aware of the respondents’ uninsured motorist (UM) claim in June, 2003, yet failed to request discovery for 10 months, until after the respondents demanded arbitration. As a result, the court denied Geico’s petition to permanently or temporarily stay the UM arbitration demanded by the respondents pending their provision of such discovery. [*2]

Geico moves to reargue asserting, inter alia, that: (1) upon the receipt of the respondents’ application for no-fault benefits, it sent a letter dated June 24, 2003, reserving its right to discovery; (2) although the respondents filed a Notice of Intention to Make Claim dated June 10, 2003, that notice did not indicate that the respondents intended to make a claim for UM benefits and was served with no-fault paperwork; (3) the respondents never made a formal claim for UM benefits until they demanded arbitration by demand dated March 16, 2004; (4) notice of the no-fault claim did not constitute notice of the UM claim; (5) as a result, in connection with the UM claim, it timely requested discovery by letter dated April 5, 2004; and, (6) its policy obligates the respondents to provide discovery prior to arbitration.

The respondents oppose the motion contending, inter alia, that they served a notice of intention to make a claim for UM benefits in June, 2003, and Geico failed to request any discovery until after they demanded arbitration.

The respondents’ Notice of Intention to Make Claim, sworn to on June 10, 2003, appears to be on a form provided by Geico. Section 10 of that form asks the person making a claim to indicate the reason for the application. The reasons listed on the form are: “Uninsured Car,” “Denial of Coverage” “Disclaimer,” “Stolen Car,” “Unidentified Car,” “Uninsured Automobile Endorsement on your Policy” and “Qualified Person.”

The respondents placed an “x” mark next to each such listed reason, and returned the Notice of Intention to Make Claim with the no-fault authorizations requested by Geico. In response, by letter dated June 24, 2003, Geico advised the respondents’ attorney that because it believed the tortfeasor carried a policy of liability insurance with Allstate on the date of the accident, “it does not appear that your client has a valid claim for uninsured motorist benefits at this time.”

In the same letter, Geico stated that if the respondents obtained proof that the tortfeasor was uninsured, they should provide Geico with documentation to substantiate the UM claim. Geico added that once it confirmed the validity of the respondents’ SUM or UM claim, it might require them to provide certain discovery.

Geico did not request discovery from the respondents for 10 months, until April 5, 2004, after it was served with the respondents ‘ demand for arbitration.

In view of these facts, the court grants the motion to reargue and, upon reargument, adheres to its original determination set forth in the order dated November 23, 2004 (see New York Cent. Mut Fire Ins. Co. v Gershovich, 1 AD3d 364 [2003]; Matter of Allstate Ins. Co. v Faulk, 250 AD2d 674 [1998]; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623 [1994]; cf. Allstate Ins. Co. v Moya, 288 AD3d 309 [2001]; Metropolitan Prop & Cas. Ins. Co. v Keeney, 241 AD3d 455 [1997]). [*3]

Dated: March 7, 2005

J.S.C.

Civil Court of the City of New York, Queens County

102975/2002

The Plaintiff: Baker, Barshay & Neuwirth, LLP, by Robert Baker, Esq., 1393 Veterans Memorial Highway, Suite 210N, Hauppauge, NY 11788

For the Defendant: Freiberg & Peck, LLP, by Adam C. Weitz, Esq., 12 East 41st Street, New York, New York 10017

Charles J. Markey, J.

The instant decision, in this action for no-fault first party benefits, addresses the question of the extent of efforts required of a movant before it can secure preclusion or dismissal against the party who failed to honor a so-ordered stipulation. In the present case, plaintiff does not dispute the fact of noncompliance. Yet, plaintiff’s counsel insists that defendant must show that it placed a statement on the record at the deposition session before a court can invoke preclusion.

The defendant moves for preclusion for plaintiff’s failure to comply with a so-ordered stipulation [Siegal, J.], requiring a deposition of the plaintiff on or before February 18, 2004, at a named court-reporting facility, Diamond Reporting, in Jamaica, New York. The defendant attempted to secure compliance by telephoning opposing counsel, on February 17, 2004, to confirm that the deposition would go forward on the next day. Plaintiff’s counsel said that it would not produce a witness.

Defendant did not go to the reporting service named in Judge Bernice Siegal’s order. Instead, it subsequently moved for preclusion of all evidence, the sanction specifically recited in the so-ordered stipulation.

Plaintiff contends that defendant should not be able to secure preclusion without having made a specific statement on the record of an attempted examination before trial (“EBT”) of the failure of plaintiff’s counsel or its client to show up. Plaintiff’s counsel, in papers opposing the motion, argues, in pertinent part:

The defendant’s ability to subsequently preclude the plaintiff from offering evidence should not be a default right. The defendant should be required to offer and prove its attempt at conducting the EBT via a default statement on the record indicating they “showed up.” For the defendant to be able to enter a stipulation naming preclusion as the penalty for plaintiff’s failure to appear and allowing [*2]defendant to successfully preclude plaintiff’s evidence without showing up and taking a default statement at their own EBT would be like “arming” defense counsel with a means with which to circumvent equitable discovery practices. [Affirmation of Robert J. Baker, Esq., page 2].

Plaintiff’s arguments bear no merit for several reasons. First, the reason why some attorneys decide to place the failure of an opposing party to appear at an EBT is to preserve or make a record, especially when the absence of the other party could not have been predicted or the date or circumstances surrounding the deposition are in dispute. The need in those cases to arrange for a court reporter and make a record of the absence of an opposing party is often indispensable as a groundwork for future motion practice.

In the case at bar, in contrast, defense counsel exercised the courtesy of calling opposing counsel the day before the deposition and was advised that neither plaintiff nor its attorneys would appear. In other words, there was no need for a court reporter because plaintiff’s counsel made an advance repudiation of its stipulated undertaking to be present at a deposition to be held on or before February 18, 2004. In the present case, sound lawyering would have required defense counsel to fax a letter to plaintiff’s counsel on February 17, 2004, confirming the conversation of plaintiff’s refusal to attend the Feb. 18 EBT. Nevertheless, such a letter is not necessary for the disposition of the instant motion because plaintiff does not dispute that it did not attend the EBT, but merely implores for another opportunity to attend such a deposition.

Second, to adopt plaintiff’s specious argument would thrust upon a litigant the expense and burden of hiring and paying court-reporting agencies and reserving rooms, even though counsel is advised ahead of time that an opposing party will not attend. Defense counsel would, in effect, be like the proverbial dog chasing its own tail. In other words, where a stipulation is plain on its face, advising a party of the consequences of the failure to appear, and a party notifies its adversary that it will not attend the court-ordered discovery session or deposition, there is no need to force upon a lawyer the expense and effort of making arrangements for a deposition that will never take place.

Third, plaintiff’s counsel’s argument is also a way to extract yet “another bite at the apple,” namely, yet another chance to attend the deposition. Judges Edgar Walker and Bernice Siegal, in their joint decision in Hoss Medical Services v. Government Employees Insurance Co. (4 Misc 3d 521 [NYC Civ Ct Queens County June 17, 2004]), made clear that parties in no fault first party benefits cases will be held accountable for the language they employed in a stipulation and that their failure to comply with a discovery request posed in a court-ordered stipulation will not be tolerated. In Hoss, a case involving the same plaintiff’s law firm, the court stated:

It has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except in certain limited circumstances not even alleged to be present in these cases [citations omitted].

* * * * *

. . . [T]he court is not free to reform the stipulations to conform to what it thinks is proper or to impose a sanction other than that agreed to.

Id. at 523.

It would serve no purpose after a plaintiff’s counsel failed to abide by a court-ordered stipulation to require defense counsel to secure a second stipulation for enforcement of the prior agreement or to make futile arrangements before enjoying the benefit of the penalty that was clearly prescribed in the first stipulation. Any other result would render a mockery of proceedings and of judicial orders and would send a mischievous message that apparent finality actually does not mean final.

In the present case, this Court holds that defense counsel was not required to undergo the expense and trouble of arranging for a deposition before it moves for preclusion or dismissal. Accordingly, the defendant’s motion is, in all respects, granted. The undersigned will enforce the terms of the instant stipulation, and, accordingly, full preclusion is accorded against the plaintiff, and the complaint is dismissed.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Judge, Civil Court, Queens County

Dated: Jamaica, New York

February 18, 2005

Appearances: