[*1]

Civil Court of the City of New York, Queens County, November 4, 2004

APPEARANCES OF COUNSEL

Freiberg & Peck, New York City, for defendant. Baker & Barshay, Hauppauge, for plaintiff.

{**5 Misc 3d at 723} OPINION OF THE COURT

Augustus C. Agate, J.

{**5 Misc 3d at 724}Plaintiff brought suit to recover payment under the no-fault regulations for medical services it provided to its assignor, an insured of defendant. Defendant moved for summary judgment pursuant to CPLR 3212, arguing that plaintiff’s failure to comply with defendant’s verification requests made the commencement of this action premature. Plaintiff opposed defendant’s motion, arguing that defendant’s follow-up request was untimely, as defendant sent it 25 days after submitting the initial request.

This court finds that defendant’s verification requests were timely and proper under the no-fault regulations. The no-fault regulations require defendant to submit a follow-up verification request if it does not receive a response from plaintiff within 30 days of issuing its initial verification request. As defendant sent its follow-up request on the 25th day, it complied with the requirement of submitting its follow-up within 30 days from the date of the initial request. There is no statutory or case law that requires defendant to wait until the 30th day to issue its follow-up request. To find that defendant must wait 30 days before issuing its follow-up request serves no valid purpose under the No-Fault Law. Moreover, finding defendant’s follow-up request was untimely would be inconsistent with the purpose of the No-Fault Law and would result in unfair prejudice to defendant.

Under the no-fault regulations, an insurer must either pay or deny a claim within 30 days or it will be precluded from offering any defenses at trial. (See 11 NYCRR 65.15 [g]; Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997].) An insurer may toll the 30-day period by properly requesting verification within 15 days from the date of receipt of the bill. (11 NYCRR 65.15 [d] [1].) Upon submitting a proper verification request, an insurer must issue a follow-up request for verification if it does not receive the requested information within 30 days from the date of requesting the verification. (11 NYCRR 65.15 [e] [2].) If it does not receive the verification after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. (11 NYCRR 65.15 [g] [1]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999].) Further, an insurer may not [*2]issue a denial while its verification request is outstanding. (See Westchester Med., supra.)

While the regulations require an insurer to submit a follow-up request within 30 days from the date of submission of the request, {**5 Misc 3d at 725}it does not mandate that the insurer wait 30 days before sending a follow-up request. Instead, this time frame is a limit to the amount of time an insurer may wait before sending a follow up request. (See Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151 [2d Dept 1986].) This determination is consistent with the case law and the goals of the No-Fault Law.

There is no case law or statutory authority for the proposition that an insurer must wait 30 days before sending its follow-up request, or it will be precluded from offering defenses at trial. While there are no cases that specifically address this issue, there are cases that address the timeliness of follow-up verification requests. In New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2d Dept 2001]), the defendant requested additional verification on October 5, 1999 and sent its follow-up letter on November 1, 1999, 27 days later. (Id. at 700.) The Court noted that both requests were timely, stating that “defendant did not sit on its rights, but rather promptly requested additional verification of the claim.” (New York & Presbyt. Hosp. v American Tr., 287 AD2d at 701; see 11 NYCRR 65.15 [d] [2]; [e] [2].)

There are also numerous cases indicating the defendants timely sent follow-up verification requests exactly 30 days after sending its initial requests. (See New York Hosp. Med. Ctr. v State Farm Mut. Auto Ins. Co., 293 AD2d 588 [2d Dept 2002]; Boro Med. & Psych Treatment Servs., P.C. v Country Wide Ins. Co., 2002 NY Slip Op 50538[U] [App Term, 2d & 11th Jud Dists 2002]; L.I. First Aid Med. Supply v Progressive Cas. Ins. Co., 196 Misc 2d 258 [Civ Ct, Queens County 2003].)

In the present case, penalizing defendant for sending a follow-up request 25 days after its initial request is inconsistent with the goals of the No-Fault Law. The purpose of the No-Fault Law is to allow swift compensation for qualified injured persons from the insurance companies. (See Presbyterian v Maryland, 90 NY2d at 284.) The regulations require insurers to act quickly in evaluating insureds’ claims and to avoid prejudicial delays. (See Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986].) The verification requirement exists in order for insurers to have the opportunity to promptly investigate and respond to legitimate claims, not to delay payment. (See id.)

In this case, defendant complied with the no-fault regulations by quickly responding to plaintiff’s claim in the form of a verification request. When it had not received plaintiff’s claim within 25 days, it promptly responded by submitting a follow-up request. {**5 Misc 3d at 726}Plaintiff has not challenged the propriety of defendant’s request, but only challenges defendant’s ability to send a follow-up request earlier than 30 days from the date of the initial request. Essentially, plaintiff seeks to penalize defendant for being too prompt, which is wholly inconsistent with defendant’s duties under the No-Fault Law.

Finally, defendant would suffer undue prejudice if its verification request was found improper. If the court were to accept plaintiff’s argument, defendant would have to pay a claim for which it complied with the regulations and sought proper verification. This result would be unduly harsh, as defendant would be precluded from asserting any defenses to plaintiff’s claim. Furthermore, defendant’s early follow-up verification request did not prejudice plaintiff in any manner, as plaintiff is not under any time frame to respond to defendant’s verification request. [*3]Therefore, the date of defendant’s submission of its follow-up request is irrelevant for the purposes of plaintiff’s response.

It is also undisputed that plaintiff never responded to defendant’s verification requests and has not challenged the propriety of defendant’s requests. Plaintiff’s sole argument is that defendant acted too promptly in seeking verification. However, defendant’s actions were not only permissible but were consistent with the goals of the No-Fault Law in seeking prompt response to insured’s claims. In this matter, plaintiff was able to respond to the verification request, but simply received follow-up notice that it had not done so earlier than the time allotted to defendant by the no-fault regulations. Plaintiff’s failure to respond had no relation to the dates defendant submitted its initial and follow-up verification.

Accordingly, as defendant complied with the letter and spirit of the no-fault regulations, and plaintiff suffered no prejudice from defendant’s expeditious response to plaintiff’s claim, defendant’s verification requests are deemed timely and proper. As plaintiff never responded to defendant’s timely and proper verification requests, defendant was under no duty to issue a denial. (See Westchester Med. Ctr. v Travelers Prop. & Cas. Ins. Co., 2001 NY Slip Op 50082[U] [Sup Ct, Nassau County 2001].) Therefore, plaintiff commenced the action prematurely. As there are no issues of fact in dispute, defendant’s motion is granted.

[*1]

Civil Court of the City of New York, Queens County, September 20, 2004

APPEARANCES OF COUNSEL

Serpe, Andree & Kaufman, Huntington (Jonathan H. Kaufman of counsel), for petitioner. Samuel K. Rubin, Bethpage (Barbara Ann Anzelmo of counsel), for Eagle Insurance Company, respondent. Wade, Clarke, Mulcahy, New York City (Nicole Y. Brown of counsel), for Arbitration Forums, Inc., respondent.

OPINION OF THE COURT

Bernice D. Siegal, J.

Motion by petitioner to vacate an arbitration award on the grounds that Arbitration Forums, Inc. has not only misapplied the statute of limitations three times but has flouted an order of this court, and for the imposition of sanctions against respondent Arbitration Forums, Inc. for such contumacious and frivolous behavior is granted to the extent of vacating said arbitration award, remanding the matter for a new hearing before yet another arbitrator and setting the matter of sanctions against Arbitration Forums, Inc. and Eagle Insurance Company down for a hearing on September 27, 2004 at 9:30 a.m. in Part 39 of this court with memoranda of law to be served upon opposing counsel and filed with the court on or before September 20, 2004. The court, sua sponte, extends the matter of the imposition of sanctions to also apply against Eagle Insurance Company as, in light of the law of the case and clear decisional law to the contrary, Eagle opposed the petition to vacate and cross-moved to confirm the erroneous award. The court recognizes that in opposition to the petition, Arbitration Forums, Inc. has indicated that it will vacate the award and reopen the arbitration. Relief for petitioner, however, remains contingent. Should such vacatur indeed occur prior to the entry of this judgment, it is understood that the portion of the within motion respecting the vacating of the award would be moot. However, the issues of whether this court has the authority to impose sanctions upon Arbitration Forums, Inc. and, if so, does Arbitration Forums’ action warrant such punishment, would be nonetheless ripe for review and require a reasoned response. Additionally, respondent’s cross motion to confirm on the grounds that the misapplication of the statute of limitations is not sufficient grounds to vacate an arbitrator’s decision is unavailing and is denied in all respects.

Petitioner, the assignee of an individual allegedly injured in a motor vehicle accident by the respondent’s insured, initially sought reimbursement pursuant to 11 NYCRR 65.10 through compulsory arbitration required for PIP loss transfer. In its initial decision dated October 13, 1998, Arbitration Forums held that the petitioner failed to prove liability [*2]in that it commenced the arbitration more than three years from the date of loss. Petitioner argued that the correct statute of limitations should have been three years from the date of first payment. The award was eventually vacated by the Appellate Term, by order dated October 20, 2000, holding that the imposition by the arbitrator of the wrong statute of limitations was arbitrary and capricious and remanded the matter for a new hearing before another arbitrator. The matter was set down for a new hearing, whereupon it was dismissed by the arbitrator on May 15, 2001 upon the same grounds. The court again vacated the arbitration award as the award was “based on an erroneous application of the statue [sic] of limitations” on or about September 10, 2001. The matter was once again submitted for arbitration and once again, on July 15, 2003, the arbitration award was granted in favor of respondent on the grounds that “no fault statue [sic] based on 3 yrs from date of loss not date of 1st payment.”

Scope of Review

The scope of review of compulsory arbitration decisions has long been held to be clearly beyond the restrictions engrafted in CPLR 7511. In 1980, the Second Department held that “[t]he test thus applicable for review of no-fault arbitrations where error of law is in issue is . . . whether any reasonable hypothesis can be found to support the questioned interpretation.” (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [2d Dept 1980].) The Court of Appeals further refined the test and held that where arbitration is mandatory, an award “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Thus, the stricter standard imposed upon review of compulsory arbitration applies to the case at bar as the petitioner herein sought reimbursement of no-fault payments pursuant to Insurance Law § 5105 and New York State Insurance Regulations (11 NYCRR) § 65.10, entitled “Mandatory arbitration procedures for insurers, self-insurers and compensation providers under section 5105 of the Insurance Law.” Therefore, there is no question that the underlying arbitration was compulsory, derived from statute and not voluntary. Thus, the question of law is whether the imposition of a three-year statute of limitations from the date of the accident was arbitrary and capricious.

Statute of Limitations

CPLR 214 imposes a three-year statute of limitations and, specifically, CPLR 214 (2) imposes a three-year statute on liabilities imposed by statute.

The Court of Appeals noted almost one decade ago that in determining the applicability of CPLR 214 (2):

“[T]he pertinent inquiry is whether the statute creates a liability ‘for wrongs not recognized in the common or decisional law,’ and which would not exist but for the statute (State of New York v Cortelle Corp., 38 NY2d 83, 86; see, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175; State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 88; Murphy v American Home Prods. Corp., 58 NY2d 293, 307; Siegel, NY Prac § 35, at 41 [2d ed]).” (Hartnett v New York City Tr. Auth., 86 NY2d 438, 444 [1995].)

Recently, the Fourth Department specifically held that in a loss transfer claim, which is [*3]statutorily created, the statute of limitations is governed by CPLR 214 (2) and “accrues on the date of payment of no-fault benefits to the claimant, because by then ‘all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain the relief in court.’ ” (Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42 [4th Dept 2003] [citations omitted].) This is true in spite of the recent pronouncement of the Court of Appeals wherein it found that plaintiff insurer seeking reimbursement from the tortfeasor was foiled by a three-year statute of limitations from the date of the accident as “it involves a traditional equitable subrogation, not a liability created by statute” (Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004]).

Respondent Eagle’s reliance on Allstate v Stein is therefore misplaced. The case at bar is not one that involves “traditional equitable subrogation,” rather it involves loss transfer plucked from New York State’s No-Fault Law, between two insurers. As the rights and relationships between the parties were created by statute and did not exist in the common law, the statute of limitations found in CPLR 214 (2) must be applied.

Further, the issue of which statute of limitations to impose for mandatory no-fault arbitrations is not new to the appellate courts in this department or to these respondents. The Appellate Term has consistently held in both published and unpublished decisions during 2003 that the statute of limitations of three years from the date of payment is applicable in mandatory loss transfer arbitrations between carriers and failure to apply the correct statute of limitations is arbitrary and capricious. (State Farm Mut. Auto. Ins. Co. v Eagle Ins. Co., 6 Misc 3d 27 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2003]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898[U] [App Term, 2d & 11th Jud Dists 2003].)

Moreover, as Allstate v Stein (supra) is not dispositive, the Appellate Term has spoken on this very dispute between these very parties, no appeal has been taken and, thus, its decision entered on October 20, 2000, wherein it held that the misapplication of the statute of limitations was arbitrary and capricious, remains the law of the case (see People v Evans, 94 NY2d 499 [2000]; Rubenfeld v Gambino, 289 AD2d 319 [2d Dept 2001]; Kowalski Enters. v Sem Intl., 278 AD2d 371 [2d Dept 2000]; Shroid Constr. v Dattoma, 250 AD2d 590 [2d Dept 1998]).

Accordingly, the motion by petitioner to vacate the arbitration award is granted with costs, but the demand for sanctions is set down for a hearing on September 27, 2004, including but not limited to evidence of attorney’s fees expended on petitioner’s behalf for the various arbitrations and petitions to vacate after the Appellate Term decision, with memoranda of law respecting the imposition of sanctions on both Arbitration Forums, Inc. and respondent Eagle Insurance and its attorneys, including whether this court has the authority to impose sanctions in this matter and the basis therefor to be served and filed with [*4]the court prior to September 20, 2004. Respondent’s cross motion is denied in all respects.

Civil Court, Queens County

44207/03

Bernice D. Siegal, J.

The plaintiff, a health care provider, commenced the within action to recover first party benefits under No-Fault for transportation services ( i.e., 29 round trip visits to a medical facility ) provided to plaintiff’s assignor, Oksana Kazinets, from April 16, 2002 through July 18, 2002, for which defendant insurer was billed a total of $900, together with statutory interest and attorney’s fees. Defendant insurer interposed an answer containing affirmative defenses, including the lack of medical necessity for the services rendered and that the assignor did not sustain injuries compensable under No-Fault. Plaintiff brings the instant motion for summary judgment, while defendant cross-moves for summary judgment dismissing the complaint and plaintiff, unbelievably, cross moves for the same relief demanded in the main motion and for additional relief.

For the reasons set forth below, plaintiff’s main motion is denied and its cross motion is considered only as opposition to defendant’s cross and reply to defendant’s opposition, and defendant’s cross motion is denied as premature.

Procedural Posture

In the fairyland of no fault litigation, where the rules of the court and the Civil Practice Law and Rules seem not to apply, plaintiff has submitted, in addition to its original motion for summary judgment, papers denoted as a “reply to opposition ” and ” cross-motion for summary judgment.” Plaintiff’s counsel has, in this and numerous other cases, forced this nonsense upon the court and plaintiff’s adversary despite there being no provision in the CPLR permitting such a “cross-motion” to a cross-motion. Significantly, CPLR § 2215 provides, in pertinent part, that ” a party may serve upon the moving party [ i.e., in this case the court maintains that moving party means plaintiff, and NOT the cross-[*2]moving party – here, the defendant] a notice of cross-motion demanding relief****.” Not incredibly, extensive research finds no previous reported decision on such a procedural ploy. However, the rules of engagement are specifically detailed in the CPLR, and the rules clearly bar the service of supplemental motion papers without leave of court ( CPLR § 2214[c]; see also Rosenman Colin Freund Lewis & Cohen -v- Edelman 165 AD 2nd 533 [ 1st Dept. 1991] ). Plaintiff’s cross to defendant’s cross is nothing more than the impermissible service of supplemental papers.

Moreover, the plaintiff’s ” cross-motion ” even if it were otherwise permissible is, insofar as the notice of same, defective on its face as it fails to adequately specify ” the supporting papers upon which the motion is based,” as mandated by CPLR § 2214(a) (see also Uniform Rules for the New York City Civil Court § 208.10[a]). The rules require that the notice specifically inform the court and the adversary of the contents of the motions, and substantially comply with the form therein, to wit, “Upon the affidavit of —————-, sworn to on —————-, and upon (list supporting papers, if any).” Id. Further, the notice must provide some detail about the underlying matter and nature of the motion, that is “[t]he above entitled action is for (briefly state the nature of action…). This actions (is)(is not) on the trial calender.” Id. Instead, movant merely states:

“That upon the annexed affidavits and supporting affirmation

of ***Esq., dated July 8, 2003, and upon the pleadings and proceedings heretofore had herein, the under signed will move

this Court…for an order directing the entry of Summary Judgment…”

Nowhere is the court advised as to the substance of the underlying action or the actual affidavits annexed. Demanding this disclosure on the notice of motion is not a frivolous desire but rather one which speaks to the practicality of the CPLR and Court rules. An adversary and the court should be able to tell by merely looking at the notice received what is contained within, whether any papers are missing, what is the underlying action and the current relief sought. Without such detail on the notice itself, one may only learn of missing affidavits upon the return date, too late to respond or the court may inadvertently decide the motion on incomplete papers. Any omissions or defects could render the motion a nullity upon the return date.

Moreover, plaintiff’s cross motion demands the same relief as its primary motion, to wit, summary judgment. “Multiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause.” (Public Service Mutual Insurance Co. -v- Windsor Place Corp. 238 AD2d 142, 143 [1st Dept. 1997]). This axiom holds true even if a prior summary judgment were denied on other than substantive grounds. (cf. Lefreniere -v- Capital District Transportation Authority, 105 AD2d 517 [3rd Dept 1984]). The cross motion appears to be an attempt to cure the defects in the primary motion, and as such should not be entertained by the court. Additionally, plaintiff has, in its ” cross-motion,” improperly attempted to raise new issues for the first time (see Klimis -v- Lopez, 290 Ad 2nd 538 [ 2nd Dept. 2002] ). Therefore, in view of the above, the court will deem and consider this latter submission from plaintiff ONLY as a reply to defendant’s opposition and as opposition to defendant’s cross-motion, but NOT as a [*3]separate “cross-motion” to defendant’s cross-motion.

As to the notice of plaintiff’s main motion, the movant has wholly failed to properly apprise the court of the papers annexed, etc. in violation of the court rules. Additionally, plaintiff’s “supplement to main motion” served on October 24, 2003 ( three days before the October 27, 2003 return date) is, as is the “cross motion,” nothing more than the impermissible service of supplemental papers without leave of court. Furthermore, even if the court were to consider this supplement to the main motion, the affirmation is of the attorney who is without the requisite personal knowledge to lay a foundation for the hearsay document (e.g., the purported assignment of benefits) annexed thereto. It is well settled that a proponent of a motion must come forth with facts in admissible form, either by some one with personal knowledge of the facts or by affirmation with admissible documentary proof. (See Zuckerman -v- City of New York, 49 NY2d 557). Accordingly, the assignment of benefits is not properly before the court.

Findings of Fact and Conclusions of Law

The plaintiff’s motion is denied, in the first instance, because plaintiff has failed to establish a prima facie case for entitlement to recover unpaid benefits under No-Fault. It is incumbent for plaintiff to prevail in a summary judgment motion in a No-Fault action to demonstrate that it had submitted complete proof of claim ( see S& M Supply, Inc. -v- GEICO Insurance, 2003 WL 21960343 [ N.Y. Sup. App Term 2003]), with the assignment of benefits being a necessary component of such complete proof of claim ( see A.B. Medical Services, PLLC -v- Progressive Insurance, 2003 WL 21005006 [ N.Y. Sup. App. Term 2003; Vinings Spinal Diagnostic, P.C. -v- Liberty Mutual Insurance Company 186 Misc 2nd 287). Plaintiff’s papers initially submitted on its motion for summary judgment were devoid of any assignment. While the plaintiff attempted to correct such omission by annexing a copy of the assignment to its October 24, 2003 ” supplement to main motion”, such ” supplement ” has been ruled, above, by the court to be a nullity which will not be considered because, among other things, it was impermissibly served without leave of court. Plaintiff’s motion is further denied because it is defective for the reasons stated above, while the cross-motion by defendant is denied as premature, as follows:

The defendant’s opposition and cross-moving papers include, among other things, defendant’s discovery demands dated January 31, 2003; defendant’s motion to preclude submitted on September 3, 2003 and the stipulation by the parties, “so-ordered ” by the court on September 3, 2003, wherein upon defendant’s withdrawal of its motion to preclude, plaintiff agreed to be precluded from “offering evidence at time of trial ” unless it provided complete verified responses to defendant’s discovery demands within 60 days of the date of the stipulation.”

With respect to the stipulation signed by the parties and “so-ordered” by the court, conditionally precluding the plaintiff in this action, as this Court has recently stated, “[I]t 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 for certain limited circumstances not even alleged to be present *** Nishman v. DeMarco, 76 AD2d 360 (2nd Dept. 1980); Siltan v. City of New York, 300 AD2d 298 [2nd Dept. 2002]; In re Evelyn P., 135 AD2d 716 [2nd Dept. [*4]1987].” (Hoss Medical Services, P.C. -v- GEICO, ___Misc 3d___, 2004 NY Slip Op. 24213 (N.Y. Civ Ct). Such a “so-ordered” stipulation will function as a conditional order of preclusion (Siltan -v- City of New York, supra) and, in the event of noncompliance with same, plaintiff may be subject to dismissal if preclusion will prevent plaintiff from making a prima facie case (Jenkinson -v- Naccarato, 286 AD 2nd 420 [ 2nd Dept. 2001]).

However, the plaintiff, by virtue of CPLR § 3214(b) and plaintiff’s notice of motion for summary judgment, served on July 8, 2003 and made returnable on October 27, 2003, has escaped, at least temporarily, the force of the September 3, 2003 conditional preclusion order, as CPLR § 3214 (b) provides that service of a notice of motion for summary judgment “stays disclosure until determination of the motion***.”

Accordingly, in view of the above statutory stay, the cross-motion by defendant for dismissal is denied without prejudice as follows: In view of the court’s now having determined plaintiff’s motion for summary judgment and denying same, the stay of disclosure, pursuant to CPLR § 3214(b), is now vacated and the terms of the ” so-ordered” stipulation are now revived; the only modification being that plaintiff’s time to serve complete verified responses to defendant’s discovery demands is extended to 60 days from service upon plaintiff of a copy of this order with notice of entry. In the event of noncompliance by plaintiff, defendant is given leave to renew its cross-motion for dismissal.

_________________________

DATE: June 30, 2004 BERNICE D. SIEGAL

J.C.C.

Civil Court of the City of New York, Queens County

119001/02

Baker, Barshy & Neuwirth, LLP By: David M. Barshay Esq., Attorneys for plaintiff,1393 Veterans Memorial highway, Ste 21N New York,11788, (631) 979-2906; Short & Billy P.C., By: Ellen Burach-Zion Attorneys for defendant, 217 Broadway Ste 300 New York, N.Y., 10007.

Timothy J. Dufficy, J.

Plaintiff East Way Chiropractic P.C. brought this action against Allstate Insurance Company to recover four separate no-fault payments under a uniform contract of insurance. A non-jury trial was held before this court on May 25, 2004.

FINDINGS OF FACTS

Tammy Figueroa, testified she worked in the billing department for the plaintiff East Way Chiropractic for approximetly five years. She stated that she was responsible for entering data in a computer program for medical bills and was responsible for keeping patient files and billing files in the ordinary course of business.

Ms. Figueroa was familiar with the files of Johnny Concepcion, Charles Taylor, Connie Charles and Jose Martin. Before any assignments were accepted, the office practice was to verify the identity of the patient. Ms. Figureoa stated that no payments were made to the plaintiff East Way except for partial payments made on behalf of Connie Charles. The claim form, to wit “the NF3” and assignments were accepted into evidence except for Jose Martin’s assignment which could not be located.

ISSUES

After plaintiff established a prima facia case, the issue of a timely denial was raised by the plaintiff. The only proof submitted by the defendant was the “NF10” denials which were timely on their face. Defendant’s witness Hector Herrera testified that he was a claim adjuster for defendant Allstate Insurance Company for the past three years and was familiar with the Taylor, Martin and Charles no-fault files. Mr. Herrera received training as to the procedure used by Allstate when a claim is denied. Mr. Herrera testified that the information is entered into the network or main frame computer with a claim number and the injured party’s name. Mr. Herrera stated he was assigned to the instant claims a few days before trial. He testified through the in house training he learned how data is entered into the computer. Denial forms are mailed from a central office in Texas. Mr. Herrera testified through his training, he learned that the forms are mailed out the same day they are entered into the computer or at latest the next day, unless it was a Friday or a holiday weekend. On cross examination, Mr. Herrera admitted that he testified at a prior proceeding that he thought the mailing were done by a third party. However, Mr. Herrera was later permitted to correct his testimony at that proceeding. The court finds that Mr. Herrera [*2]lacks personal knowledge of the of the mailing procedure used in the Texas facility and in fact never visited or worked in the Texas office. No other evidence of a timely mailing was offered by defendant.

As pointed out by the plaintiff in their trial memorandum of law, the law is well settled in that for an insurer’s denial of claim form to be deemed timely pursuant to 11 NYCRR 65.15(g) (3) and Insurance Law§5106(a), the insurer must not only prove that it generated the denial document within thirty (30) days of receipt of the applicants claim, but that it also mailed the denial to the applicant within the same time period. See, Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 A.D.2d 374 (2nd Dept. 2001); A. B. Medical Services, PLC v. GEICO Ins., 2 Misc. 3rd 26 (APP. Term 2nd and 11th J.D. Dist. 2003). The court holds that personal knowledge of the actual mailing or at least personal knowledge of the actual procedure is required. See, S& M Supply Inc. V. GEICO Ins., 2003 N. Y. Slip Op. 51192 (U) (App. Term. 2nd and 11th J.D. Dist. 2003). In the case at bar, the witness did not have personal knowledge of the Texas mailing procedure and in fact never visited or worked at the Texas office. Therefore, the defendant failed to establish that the denials were timely mailed to the applicant within thirty (30) days.

Accordingly, judgment is awarded to the plaintiff for the amount sought in the complaint for services provided to Johnny Concepcion ($122.14), Charles Taylor ($1615.58), Jose Martin ($1916.46). As for the claim for services provided to Connie Charles partial judgment in the amount of $470.96. The plaintiff is directed to submit a judgment to the court together with statutory interest and attorney fees.

Dated: June 23, 2004 _________________________

TIMOTHY J. DUFFICY, J.C.C.

[*1]

Civil Court of the City of New York, Queens County, June 17, 2004

APPEARANCES OF COUNSEL

Teresa Spina, Woodbury, for defendant. Baker & Barshay, LLP, Hauppauge, for plaintiffs.

{**4 Misc 3d at 521} OPINION OF THE COURT

Edgar G. Walker and Bernice D. Siegal, JJ.{**4 Misc 3d at 522}

The above-captioned actions (still in the discovery stage), commenced to recover first-party no-fault benefits, have been consolidated, sua sponte, for the sole purpose of deciding the motions brought by defendant to dismiss plaintiffs’ complaints pursuant to CPLR 3126. Although it is not unusual to consolidate matters presenting the same issues before one judge, it is perhaps unorthodox for two judges in Civil Court to join in an opinion deciding motions submitted to them individually for decision. In the interest of judicial economy and as all these motions present one manifest legal conundrum within the identical procedural posture, as will become clear, we join in granting defendant’s motion and, accordingly, dismiss plaintiffs’ complaints.

The actions were commenced by service of summons and complaint. Along with its answer, defendant served various discovery demands upon plaintiffs including a notice to take a deposition upon oral examination. Each such demand was noticed for a specific date, whereupon the plaintiffs did not appear. Upon plaintiffs’ default, defendant made its initial motion to dismiss for failure to appear at said depositions. Each motion was resolved by a stipulation, drafted and executed by respective counsel, wherein the plaintiffs agreed to produce, for examination before trial (EBT), on or before a date certain, an individual with personal knowledge to establish its prima facie case and, if “medical necessity” was the basis of defendant’s denial, an individual having “personal knowledge of the treatment allegedly rendered.” The parties further agreed that “[i]n the event that plaintiff fails to appear for said examination or fails to produce someone with personal knowledge as to the medical necessity of the services allegedly provided (if so required) plaintiff will be precluded from offering evidence at trial” (emphasis added).

The stipulation was then “so ordered” by the judge sitting in Special Term. [*2]Defendant, by affirmation of the attorney with personal knowledge of the steps taken to ensure compliance, indicated telephonic and written communication to plaintiffs’ counsel concerning the depositions. Upon plaintiffs’ failure to appear on the outside dates, a record of default was taken and these motions ensued. To date no one has appeared for any of the depositions on behalf of plaintiffs herein.

The issue is not, as noted by plaintiffs’ attorney in his affirmation in opposition, “what penalty is appropriate for plaintiff[s’] non-compliance.” That question was answered by the parties {**4 Misc 3d at 523}themselves when they entered into the stipulations. 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. (Nishman v De Marco, 76 AD2d 360 [2d Dept 1980]; Siltan v City of New York, 300 AD2d 298 [2d Dept 2002]; Matter of Evelyn P., 135 AD2d 716 [2d Dept 1987].)

What is striking about plaintiffs’ papers is the utter lack of showing of any excuse or reason for their failure to appear or produce any witness for the agreed upon depositions, nor is there any commitment to do so if given still another opportunity. Even at this stage of the litigation, the court might have considered yet another conditional order, if plaintiffs had requested same and offered a sufficient excuse for their failure to comply with the prior order and provided reasonable assurances that they would comply in the future. (See e.g., Bohlman v Reichman, 97 AD2d 426 [2d Dept 1983].)

Rather, plaintiffs seek to be relieved of the consequences of an agreement, which, in hindsight they regret having made. It may well be that had plaintiffs not entered into the stipulations to resolve the prior motions, the court would not have ordered depositions or imposed the sanction specified in the stipulations for plaintiffs’ failure to comply. However, the 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. (Tinter v Tinter, 96 AD2d 556 [2d Dept 1983]; Siltan v City of New York, supra.) Plaintiffs, not having pursued their arguments that defendant was not entitled to an EBT in opposition to the initial motion, may not now raise those arguments to excuse their failure to comply with the stipulation.

The so-ordered stipulations functioned as conditional orders of preclusion, which became absolute upon the plaintiffs’ failure to comply. (Id.) If preclusion will prevent plaintiffs from making a prima facie case, the motion to dismiss should be granted. (Jenkinson v Naccarato, 286 AD2d 420 [2d Dept 2001].)

Plaintiffs argue that they can prove their prima facie case by calling an employee of the defendant to testify at trial. However, what is provided for in the stipulation is evidence preclusion, not merely witness preclusion. The plaintiffs are precluded from “offering evidence,” not merely calling a specified witness. Therefore, {**4 Misc 3d at 524}the plaintiffs will be unable to establish a prima facie case.

Defendant’s motions to dismiss are granted.

[*1]

Civil Court of the City of New York, Queens County, June 2, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck (Samuel S. Marcus of counsel), for plaintiffs. Freiberg & Peck, New York City (Meredith Gursky of counsel), for defendant.

{**4 Misc 3d at 444} OPINION OF THE COURT

Edgar G. Walker, J.

{**4 Misc 3d at 445}In this action to recover unpaid benefits claimed to be due for medical services allegedly rendered to its assignor, plaintiff^[FN*] has moved for summary judgment. In support of the motion plaintiff has annexed, inter alia, the claim form it submitted to the defendant which it claims was neither timely paid nor denied. Defendant, in opposition, claims, inter alia, the form is not the prescribed New York State form N-F 3. Rather, plaintiff has utilized the generic health insurance claim form, HCFA/CMS 1500.

The claim form is signed by the treating doctor, Myung Choi. However, Dr. Choi is not a plaintiff herein nor is he the applicant patient’s assignee. The claim was assigned to the plaintiff which submitted the claim form to the defendant. Where, as in this case, the treating provider is different than the billing provider, form N-F 3 (item 16) requires disclosure of the business relationship between the treating provider and the billing provider (employee, independent contractor, other). Form 1500 does not call for such information nor is the relationship disclosed anywhere on the form submitted by the plaintiff to the defendant.

A complete proof of claim is a prerequisite to entitlement to no-fault benefits. (St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2000]; Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569 [1989].) While a form other than the prescribed form may be used, it must contain “substantially the same information as the prescribed form.” (11 NYCRR 65.15 [d] [5].) The court must, therefore, determine whether, in the absence of the information called for in item 16 of form N-F 3, the form submitted by plaintiff is sufficient to establish its right to payment from the defendant.

Plaintiff submitted this claim as the assignee of the applicant for no-fault benefits, but no-[*2]fault benefits are not freely assignable to any person or entity without restriction. The Insurance Department regulations provide, in relevant part, for direct payment of benefits “directly to the applicant . . . or, upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1] [emphasis supplied]). Pursuant to this regulation, plaintiff would be entitled to payment from the defendant as assignee only if it was the provider of the services billed {**4 Misc 3d at 446}for. If the treating provider was an employee of the billing provider, the billing provider would be considered a provider of services, through its employee, and thereby entitled under the regulation to direct payment. If, however, the treating provider was an independent contractor, the billing provider would not be entitled to direct payment under the regulation since it did not provide services to the applicant patient.

The significance of the information required by item 16 of form N-F 3 is apparent. It relates directly to the right of the billing provider to receive direct payment from the insurer as the assignee of the applicant. At least where, as in this case, the billing provider is not the treating provider, the submission of form 1500 does not constitute a complete proof of claim.

Since plaintiff did not submit a proper proof of claim, it failed to establish a prima facie case of entitlement to payment of no-fault benefits. The motion must, therefore, be denied regardless of the sufficiency of the opposing papers. (Alvarez v Prospect Hosp., 68 NY2d 320 [1986].)

Footnotes

Footnote *: Although there are two named plaintiffs in the caption, the moving papers make no reference to Jamil M. Abraham M.D. P.C., doing business as Park Health Center. As used herein “plaintiff” refers solely to Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center.

[*1]

Civil Court of the City of New York, Queens County, April 12, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz P.C., White Plains (James G. Eberz of counsel), for defendant. Baker & Barshay, LLP, Hauppauge (Gil McLean of counsel), for plaintiff.

{**3 Misc 3d at 926} OPINION OF THE COURT

Charles J. Markey, J.

The principal issue in defendant Republic Western Insurance Company’s motion to reargue—incorrectly labeled a motion to renew—is the propriety of this court, in its prior decision of July 7, 2003 (reported electronically at 2003 NY Slip Op 51070[U] [2003]), in employing information made available on a state governmental Web site and examining and using admissions, statements made by both Republic and its sibling corporation, U-Haul, on their Internet Web sites. This motion to reargue appears to be the first in the nation to challenge a court’s use of the Internet to deflate the sails of a party’s arguments.

In the prior opinion, this court, addressing an issue of then first impression in this state, rejected a motion by Republic to dismiss for lack of subject matter jurisdiction, pursuant to New York Civil Court Act § 404, or to dismiss for forum non conveniens. The plaintiff health care provider, N.Y.C. Medical and Neurodiagnostic, P.C., is the assignee of no-fault first-party benefits. The vehicle that was involved in the accident causing injury was owned by U-Haul International, Inc., famous for its rental of vehicles, and was leased or rented from a U-Haul facility in the City of New York, and was insured by defendant Republic. The basis of Republic’s prior motion to dismiss was that its underwriting of all U-Haul vehicles was done in the State of Arizona, it is incorporated in the State of Arizona, and that the sole office out of which it conducts business in the State of New York is located in the Town of Purchase, in the County of Westchester.{**3 Misc 3d at 927} According to Republic’s logic and prior arguments, the facts that the U-Haul vehicle was rented in New York City, the U-Haul vehicle was insured by Republic, the accident occurred in New York City, the persons involved in the accident reside in New York City, and the health care provider from which the assignor sought treatment—under a state-[*2]controlled system of no-fault benefits—is located in Queens County, in New York City, are all entitled to no weight.

According to Republic, the only places where the plaintiff health care provider could litigate the issue of reimbursement against insurer Republic would be in either Westchester County or the State of Arizona. Since this court does not agree that the tail wags the dog, under the proverbial adage, it rejected totally Republic’s motion to dismiss. This court’s seminal decision on the issue on whether the Civil Court of the City of New York has jurisdiction will soon be argued before the Appellate Term, Second and Eleventh Judicial Districts (case No. 2003-1472).

As an initial matter, counsel for Republic moves to renew this court’s prior decision. The fact that James G. Eberz, Esq., a partner of the firm representing Republic, calls this motion one to renew is not dispositive (see, Alpert v Wolf, 194 Misc 2d 126, 133 [Civ Ct, NY County 2002]). A trial court has an obligation to appellate justices to correct any mislabeling of a motion, so as not to add to the burdens of the reviewing justices. Fundamental differences exist between a motion to reargue and one to renew. The motion to reargue simply states that the court overlooked or misapprehended the facts or the law. The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the court originally (see discussion in Alpert v Wolf, 194 Misc 2d at 133; D. Siegel, NY Prac § 254 [3d ed 1999]). Republic, however, fails to set forth any new facts and simply rehashes its old and rejected arguments. This court doubts that Mr. Eberz and his law firm are ignorant of the distinctions, since the denial of a motion to renew is appealable, whereas the denial of a motion to reargue is not appealable (see, Pizarro v Evergreen Estates Hous., 5 AD3d 143 [1st Dept 2004]; Ruddock v Boland Rentals, 5 AD3d 368 [2d Dept 2004]).^{[FN1]{**3 Misc 3d at 928}}

The present motion to reargue, as it ought to have been denominated, assails this court, for two reasons. First, Republic’s motion states that the court should not have looked for the information posted on the Web site of the Department of Insurance of the State of New York (, cited in the prior opinion, 2004 NY Slip Op 51070[U], *6), disclosing that it is authorized to engage in the business of insurance in the State of New York. Second, Republic’s counsel contends that this court erred in searching the Web sites of Republic and its sibling corporation, [*3]U-Haul.

Turning first to the contention that this court’s use of a state governmental Web site was improper, the examples of court decisions making similar citations are legion. In Efam Enters. v Travelers Indem. Co. of Am. (2002 WL 1148830, 2002 US Dist LEXIS 10046 [SD NY, May 29, 2002]), for example, the federal court referred to both the Web sites of the New York State and Connecticut Departments of Insurance to verify the defendant insurer’s identity and corporate status (accord, United States Postal Serv. v Flamingo Indus. [USA], Ltd., 540 US —, —, 124 S Ct 1321, 1329 [2004] [unanimous Supreme Court referred to revenue and business of the United States Postal Service, as detailed on its Web site]; Verizon Communications Inc. v Law Offices of Curtis V. Trinko, LLP, 540 US —, —, 124 S Ct 872, 877 [2004] [referring to consent decree on Web site of the Federal Communications Commission]; Doe v Merten, 219 FRD 387, 396 n 28 [ED Va 2004] [citing statistics on a Web site compiled by the Bureau of Citizenship and Immigration Services of the United States Department of Homeland Security]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 234 n 1, 238 n 7 [2001] [citing homicide statistics maintained by governmental agencies and explanation of tracing a gun’s ownership from the Web site of the Bureau of Alcohol, Tobacco and Firearms]).

Legislative bodies, courts, governmental agencies, and public entities have commendably made information available on {**3 Misc 3d at 929}Web sites that have dramatically facilitated the quick location of information. Just as computerized research of Westlaw and LEXIS have made resort to more time-consuming conventional research secondary, factual information and data that, in the past, would have taken days and hours to retrieve, are now available in a matter of seconds. Technological breakthroughs, including the immediate scanning of important documents and the tapping of a few strokes on a computer keyboard, speed fact-finding, ensure that documents will not be lost, misplaced, or stolen, and are highly reliable. For a researcher not to employ information placed on a governmental Web site, by a civil servant, for the benefit of the public would, indeed, be negligent and ridiculous. For a judge to ignore these new technological changes, made available by government and encouraged by court systems, would be to blind oneself.

Mr. Eberz, however, suggests that the references on the Web site posted by the Superintendent of Insurance of the State of New York may be incorrect in that Republic is not “licensed” to do business in the State of New York, but only “admitted” to do so. Mr. Eberz does not spell out the distinction or any pragmatic difference between the two terms.

First, Mr. Eberz’s attorney’s affirmation would be insufficient, as a matter of law, to spell out the difference between the two terms, assuming arguendo that there is one. At any rate, Republic is authorized, whether “admitted” or “licensed,” to do insurance business in New York (see, Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County, Nov. 19, 2003], and subsequent order, Index No. 50078/2003, Jan. 6, 2004). The records of the Superintendent of Insurance of the State of New York, posted on a governmental Web site and available to not only the undersigned, but also anyone else with access to the Internet, demonstrate that Republic is authorized to engage in the business of insurance in the State of New York.

The defendant’s argument regarding this court’s use of Republic’s Web site and that of U-Haul, its sibling company, fares no better. Republic’s argument is that this court, using the Web [*4]sites of U-Haul and Republic, found that U-Haul has numerous facilities in each of the five boroughs of the City of New York and that each of those U-Haul vehicles is insured by Republic.

The term “www” stands for the “world wide web” (see, Hill & Assoc. v Compuserve, Inc., 2003 WL 22327827, 2003 US Dist {**3 Misc 3d at 930}LEXIS 18187 [SD Ind, Sept. 26, 2003]). The statements placed on the Web sites of Republic and U-Haul were made, not by this court or some bystander, but by Republic and U-Haul and operate as admissions (see, Intel Corp. v Hamidi, 30 Cal 4th 1342, 1353, 71 P3d 296, 304 [2003] [statement posted on company’s Web site operated as an admission against it]). Second, by the very definition of “the world wide web,” the postings made by Republic and U-Haul were not simply targeted to a select few, to be privately guarded, but were electronically made available for everyone on the face of the earth with access to a computer to see.

Third, this court did not undertake its own personal investigation. Neither the undersigned nor any of its representatives or agents went to a U-Haul facility to take an application for a rental car or inquire about insurance for such a vehicle. This court, moreover, did not undertake its own poll or even send law clerks to the reading room of the main branch of the New York Public Library on Fifth Avenue to dig for statistics, articles, news accounts, or information written by a third party in a remote treatise. The facts secured by this court, furthermore, were not derived by framing term requests on any of the modern, popular search engines—such as Google, MSN Search, Yahoo Search, or Ask Jeeves—and, based on the information derived therefrom, used to fashion a factual argument to sandbag counsel.

Rather, the court, on its own initiative, explored the Web site of a party to this litigation and that of its sibling corporation. The statements made by Republic on its Internet site (www.repwest.com) were made by Republic itself, and, similarly, the statements made by U-Haul on its Web site (www.uhaul.com) were made by U-Haul itself. Republic’s counsel does not even challenge their accuracy. The research of and citation to a publicly posted Web site of a party to this litigation and that of its sibling corporation are proper. Moreover, those publicly available Web site statements merely reiterated what counsel for those two companies have already advised the Appellate Division in Matter of Wausau Ins. Co. v Ogochukwu (295 AD2d 280 [1st Dept 2002]) that Republic insures all U-Haul vehicles.

Republic’s reliance on the case of Central Hanover Bank & Trust Co. v Eisner (276 NY 121 [1937]) is misplaced. In that case, the lower court, disagreeing with the report of the special referee regarding the valuation of a parcel of property, made its own {**3 Misc 3d at 931}viewing of the real estate and noted facts that were not alluded to in the testimony and not directly having to do with the property in question. That type of personal investigation is a far cry from the facts of the instant case, where Republic and its sibling company, U-Haul, have made world wide declarations, on their Web sites, that Republic insures every vehicle rented and leased by U-Haul in the United States.

Fourth, this court’s research, framing a request of ” ‘world wide web’ or ‘www.!’ ” on Westlaw, as of April 12, 2004, resulted in 98 published judicial opinions in reported New York State cases (the NY-CS database) referring to a Web site, 38 such opinions by the Supreme Court of the United States (the SCT database), 1,314 officially reported opinions by all state courts (the allstates database) making such references, and a number of judicial opinions far too vast for Westlaw to retrieve in the databases of all federal courts (allfeds) and the New [*5]York Law Journal. Of the cases found by the framed search terms, this court has not reviewed each of them and, therefore, does not warrant that it involves a citation to an Internet Web site invoked by a court, on its own initiative. A perusal of some of the great number of cases, however, indicates that federal and state courts, throughout the country, readily and without apology, will refer to a Web site whenever necessary or helpful to make a point.

The United States Supreme Court, in Reno v American Civ. Liberties Union (521 US 844, 853 [1997]), discussing the importance of the Web, stated: “From the publisher’s point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers” (id. at 853, quoted by the Court of Appeals with approval in Firth v State of New York, 98 NY2d 365, 370 [2002]; see, e.g., Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 342 [1999] [Court of Appeals referred to a study published on a Web site when discussing the cash value of life insurance policies]).

The Supreme Court’s observation about the Internet’s power and scope is not lost on Republic and U-Haul, companies that smartly employ a Web site in order to drum up business. Corporations want their Web sites to be read, not ignored, and, indeed, are constantly devising ways for search engines to catapult their Web sites to the top of a search request. Republic and U-Haul posted the information on their Web sites, hoping to attract the attention of literally millions of persons spanning the {**3 Misc 3d at 932}globe “for an indefinite period of time” (Firth v State, 98 NY2d at 370). If U-Haul were, indeed, so private about the information contained on its Web site, it would not have emblazoned its Web address so prominently on each of its seemingly ubiquitous vehicles.

Fifth, this court notes that the research on the Web sites was done not on some private personal computer, but on Internet access provided by the Office of Court Administration to the undersigned and every other judge of this state, reflecting a policy that courts utilize emerging technology in dispensing justice.

Finally, the implication of Republic’s argument, that the court was acting as plaintiff’s advocate in constructing an argument, has no merit. In the prior opinion (2003 NY Slip Op 51070[U], *3), marking the seminal decision rejecting Republic’s contention that it did not transact business in the City of New York, this court expressed its dissatisfaction with the initial presentations of both parties to this litigation and directed further submissions. This court then discussed some of the supplemental information supplied by both counsel (at *3-4). This court’s references to the U-Haul and Republic Web sites were thus not the sole foundation for its decision and order.

Trying to minimize its nexus with U-Haul, Republic contends, in its motion to reargue, that there is really no connection, and the fact that there are two sibling companies under one umbrella, “mega corporation,” Amerco, should have no weight. The comparison by Republic’s counsel of the relation of U-Haul and Republic to the sibling companies of other “mega corporations” (citing Cendant and Altria) is unavailing, because the examples of other sibling companies cited in Republic’s papers truly are independent and do not depend on the other’s existence.

In the present case, in stark comparison, it is incontestable that U-Haul would not be able to operate business in the City of New York and the State of New York unless each of its [*6]vehicles had the minimum insurance required by law (Vehicle and Traffic Law § 370 [3]). Each of the U-Haul vehicles could not be rented, would remain idle in the many U-Haul rental facilities located in the City of New York, and would not be permitted to exit their gates onto the thoroughfares of this City, unless it was insured.

In ELRAC, Inc. v Ward (96 NY2d 58 [2001]), a unanimous Court of Appeals explained that, pursuant to Vehicle and Traffic Law {**3 Misc 3d at 933}§ 388, the owner of a motor vehicle may be held civilly liable for any damage caused by the permissive user of the vehicle (96 NY2d at 72-73). Turning to the issue before it in ELRAC, the Court of Appeals continued that Vehicle and Traffic Law § 370 barred a rental or leasing company from pursuing an action for indemnification from its renters for amounts up to the minimum liability requirements (id. at 73). Section 370 (3) requires rental agencies to obtain a minimum amount of insurance for its vehicles (Vehicle and Traffic Law § 370 [3]).

Chief Judge Kaye, speaking for the entire Court in ELRAC, stated:

“The language of section 370 is plain and precise. Common carriers, including rental car companies, are required to obtain insurance for their vehicles . . . Furthermore, the policy must ‘inure to the benefit‘ of any permissive user of the vehicle (Vehicle and Traffic Law § 370 [1] [b] [emphasis added]). A renter is, of course, a permissive user. Thus, section 370 clearly requires the rental company to provide the renter with this minimum level of coverage.” (96 NY2d at 73; accord, Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004], supra [Second Department affirmed determination that defendant vehicle rental company “as a ‘corporation engaged in the business of renting or leasing rental vehicles to be operated upon the public highways,’ ” quoting Vehicle and Traffic Law § 370 (3), must provide primary insurance to permissive users of its vehicles].)

The insurance demanded by Vehicle and Traffic Law § 370 (3) and § 388, in the present case, is supplied by Republic, U-Haul’s sibling company, thereby enabling U-Haul to collect substantial revenues from New York City customers and to maintain the many U-Haul rental facilities that operate in this City. Without the insurance furnished by Republic, its sibling company, U-Haul could take out all the Yellow Pages advertisements it likes, but it legally could not rent a single car in the State of New York. Republic’s counsel does not seem to challenge that fact. It is surreal for Republic to pretend that the World Wide Web does not exist, U-Haul can rent vehicles without insurance, and that the ties between Republic and U-Haul are nebulous.

Every single U-Haul vehicle rented by it in the United States is insured by Republic. Indeed, as stated above, in front of a panel of Justices of the Appellate Division, First Department,{**3 Misc 3d at 934} when there was confusion as to the insurer of the U-Haul vehicle, the attorneys for U-Haul and Republic advised the Court that all U-Haul vehicles are insured by defendant Republic (Matter of Wausau Ins. Co. v Ogochukwu, 295 AD2d 280 [2002], supra).

The entire policy behind the New York Legislature’s scheme for providing no-fault first-party benefits, the prompt payment or speedy disposition of such claims, would crumble if health [*7]care professionals were forced to run from all parts of this state to Westchester County or to travel to Arizona to litigate their right to reimbursement (see discussion of the hypothetical examples posited in the prior opinion, 2003 NY Slip Op 51070[U], *9; see generally, Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d Dept, Dec. 24, 2003] [“to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims”]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept, Dec. 24, 2003]; Zlatnick v Government Empls. Ins. Co., 2 Misc 3d 347 [Civ Ct, Queens County 2003] [regarding the general undermining of the policy of the no-fault laws]).

As stated at the outset of this opinion, the tail does not wag the dog, and this court also rejects the alternative argument of Republic’s counsel, on this motion to reargue, that a special exception should be carved for this self-styled “relatively small out of state carrier” (Eberz affirmation ¶ 9).

Republic’s motion to dismiss strikes at the heart of the Court of Appeals ELRAC decision (96 NY2d 58, 72-74 [2001], supra). Defendant Republic collects revenue by insuring the vehicles of its sibling corporation, U-Haul, in the City of New York, but, when an accident occurs, shirks its responsibilities under the no-fault scheme, and, indeed, frustrates and undermines the purpose of the no-fault laws, by trying to making it difficult for a health care provider to collect reimbursement for its services.

When Republic’s insurance makes it possible for U-Haul vehicles to be rented in all five boroughs of the City of New York and to circulate on the City’s highways and streets, and in its traffic, it does not matter whether the policy of insurance was written in Arizona, Alabama, or Alaska or whether Republic’s office in this state is located in Purchase, Plattsburgh, or Parkchester.

Republic has filed numerous similar motions to dismiss for lack of jurisdiction in the courts of inferior jurisdiction. As seen in {**3 Misc 3d at 935}some unreported opinions that preceded this court’s prior opinion, Republic’s arguments have convinced other courts to grant its motion to dismiss (see, e.g., PLP Acupuncture v Republic W. Ins. Co., Nassau Dist Ct, Feb. 25, 2003, Index No. 24863/2002 [no indication provided by plaintiff’s counsel what connection the case had to Nassau County]; Viva Massage Therapy v Republic W. Ins. Co., Civ Ct, Queens County, Feb. 25, 2003, Index No. 84410/2002 [motion to dismiss granted on default]; Ostia Med. v Republic W. Ins. Co., Civ Ct, Queens County, May 20, 2003, Index No. 66847/2002 [lamenting that plaintiff had not presented any evidence and had it done so “this Court may have rendered a different decision”]).

This court notes that, following the reporting of its prior opinion electronically in Westlaw and LEXIS and in print by the New York Law Journal, several courts, citing the decision, agreed with this court’s reasoning and began denying the same motion to dismiss by Republic (see, e.g., Heritage Med. Servs. v Republic W. Ins. Co., NYLJ, Mar. 9, 2004, at 19, col 1 [Civ Ct, Kings County]; Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U], supra; West Tremont Med. Diagnostics v Republic W. Ins. Co., Civ Ct, Bronx County, Aug. 29, 2003, Index No. 72381/2002).

In the opinion of the undersigned, adoption of Republic’s arguments would result in the dessication and evisceration of the no-fault scheme. Only the Appellate Term’s forthcoming [*8]review of the issue will permit a dispositive holding to avoid the inconsistent results now being reached.

Republic’s arguments about this court’s citations to Republic’s and U-Haul’s admissions made on the World Wide Web are vacuous. The story goes that Abraham Lincoln once asked a crowd how many legs a sheep would have if we called its tail a leg. When the crowd yelled back, “Five,” Lincoln shot back, answering his own question, “No, four, because calling a tail a leg doesn’t make it one.” Similarly, Republic’s repeated claims of lack of jurisdiction for its insurance of a U-Haul vehicle rented in New York City ought to fall on deaf ears.

Footnotes

Footnote *: Another possible reason why Republic sought renewal, instead of reargument, is that its counsel may have believed that a motion to reargue would be untimely, since the date of its motion to renew is August 28, 2003, well past 30 days following the date of service of the notice of entry on July 10, 2003 (see, CPLR 5513). Plaintiff’s counsel, however, in serving the notice of entry, failed to append a copy of the order bearing the clerk’s stamped date of entry of July 8, 2003, and, in the accompanying notice, incorrectly identified the date of entry as July 7 (which was only the date that the decision and order was signed). The notice of entry that was served upon Republic’s counsel thus was a nullity (see, Baranello v Westchester Sq. Med. Ctr., 282 AD2d 259 [1st Dept 2001]), and this motion to reargue is thus timely (see, CPLR 5513). Even if untimely, a court, under the provident exercise of its discretion, may entertain an untimely motion to reargue (see, e.g., Garcia v Jesuits of Fordham, 6 AD3d 163 [1st Dept 2004]).

Civil Court Of The City Of New York, Queens County

Index No. 81843/02

For Plaintiff: Alden Banniettis, Esq. 2972 Avenue X, Brooklyn, NY

11235

For Defendant: Jacobson & Schwartz, Esqs, 510 Merrick Rd., POB 46,

Rockville Centre, NY 11571

Denis J. Butler, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this motion for summary judgment:

Papers Numbered

Notice of Motion and Affidavits/Affirmations Annexed________1_________

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

In an action to recover No-Fault benefits, plaintiff moves for summary judgment against defendant. Plaintiff submitted two timely and proper NF-3 claim forms on April 19, 2002 which were received by the defendant on April 29, 2002 and May 6, 2002. The plaintiff also submitted timely claim forms on April 24, 2002 and June 5, 2002, which insurer received on May 2, 2002 and June 10, 2002, respectively. Defendant issued denials for each of the aforementioned claims on June 27, 2002 and has failed to make payments on any of the bills.

Plaintiff contends that all of defendant’s denials were untimely except for the denial for the bill received on June 10, 2002. Plaintiff further argues that the denials are insufficient to raise a triable issue of fact since they are improperly based upon what the defendant labels a “Low Impact Study.”

Defendant does not dispute the timeliness of the denials, but argues that the injuries did not arise from a covered accident. Defendant contends that the accident at issue was a “Low Impact” accident and could not have caused the injuries alleged by the assignor. Defendant relies upon a report prepared by a private consultant retained by defendant which concludes that the speed of the assignor’s vehicle was “not sufficient to cause persistent injury to volunteer test [*2]subjects.” Defendant concludes that since the injuries allegedly sustained by the assignor could not have been caused by this accident, plaintiff’s claim is fraudulent and therefore did not arise from a covered accident. Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195. (despite an untimely denial, an insurer is not barred from raising as a defense that the “services rendered to treat the injuries at issue did not arise from a covered accident.”)

It is the holding of this court that the plaintiff’s motion for summary judgment is granted. Defendant submitted inadmissible reports and improperly denied plaintiff’s bills based upon a “Low Impact Study.” The case law is clear that in order to deny a claim on the theory that a particular accident was not a covered event the insurer must show that the accident was a deliberate event or a part of an insurance fraud scheme. As the evidence submitted by the defendant fails to establish that the accident was a deliberate event or part of an insurance fraud scheme the defendant’s claim that the accident was not a covered event is without merit.

The defendant, in its affirmation in opposition, merely relies on an affidavit by its claims adjuster dated January 21, 2004, wherein such adjuster asserts that the claims were timely denied based upon the “Low Impact Study” conducted by FTI/SEA Consulting. The affidavit fails to state whether the adjuster had actual knowledge of the “Low Impact Study”, whether she is an accident reconstruction expert or how she came to the conclusion that the injuries could not be related to the motor vehicle accident at issue. A.B. Medical Services PLL v. Lumbermans Mutual Casualty, N.Y.L.J September 30, 2003. (insurer cannot negate the careful proscriptions for expert proof in Central General Hospital in favor of mere speculation and debate).

Further, it is well established “that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 NY2D 557. The defendant submitted an unsworn to Accident Analysis Report. An unsworn report on which the defendant relied is not in admissible form and as such is not sufficient to defeat a motion for summary judgment. Washington v. City of Yonkers, 293 A.D.2d 741. Therefore, the defendant has failed to submit sufficient proof which would allow this court to determine whether the accident caused the alleged injuries.

Moreover, the basis for each of the insurer’s denials were that the results from a “Low Impact Study” had shown that the injuries alleged in the claim forms were not related to the motor vehicle accident in question and were inconsistent with a collision of that nature. The insurer posits that an accident at this speed could not have caused the alleged injuries and that therefore the claim is fraudulent and not covered.

Defendant relies upon the theory that if a collision was a deliberate event caused in the furtherance of an insurance fraud scheme, it would not be a covered accident. Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 A.D.2d 751; see also Westchester Medical Center v. Travelers Property Cas. Ins. Co., 309 A.D.2d 927. However, the defendant has failed to come forth with evidence that the accident was a deliberate event or a part of an insurance fraud scheme. Rather the defendant erroneously relies upon an inadmissible report which states that the injuries were caused by an accident which was “not sufficient to cause persistent injury to volunteer test subjects.” The report, even if admissible, fails to establish that the accident was a [*3]deliberate event caused in the furtherance of an insurance fraud scheme.

The No-Fault Law requires the carrier to either pay or deny the claim for No-Fault benefits within thirty days from the date the applicant supplies proof of claim. (Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). The bills received prior to June 10, 2002 were denied after thirty days. Without a valid “coverage” defense the court grants the plaintiff summary judgment as to each of those bills . Only the bill received by the insurer on June 10, 2002 was timely denied. As to the bill which was timely denied, the defendant has failed to submit sufficient proof in admissible form which would allow this court to determine whether the accident in question could cause the alleged injuries. An affidavit by a claims adjuster regarding the validity of a “Low Impact Study” and an unsworn report are insufficient to oppose a motion for summary judgment.

Accordingly, plaintiff’s motion for summary judgment is granted. The plaintiff is given leave to enter judgment against the defendant in the sum of $7,562.00 plus statutory attorneys’ fees and interest.

Judge, Civil Court

Decision Date: April 02, 2004

[*1]

Civil Court of the City of New York, Queens County, January 16, 2004

APPEARANCES OF COUNSEL

Israel & Israel, Great Neck, for plaintiff. Teresa Spina, Woodbury, for defendant.

{**2 Misc 3d at 907} OPINION OF THE COURT

Augustus C. Agate, J.

Plaintiff All Health Medical Care, P.C. brought suit to recover compensation under the No-Fault Law for medical services it provided to its assignor Eliyahu Malaev, an insured of defendant Government Employees Insurance Company. A trial was held {**2 Misc 3d at 908}before the court on October 31, 2003 and December 16, 2003. Plaintiff argued that it presented a timely and proper notice of claim which defendant failed to pay or deny. Defendant argued that it had no duty to pay or deny plaintiff’s claim because plaintiff failed to comply with defendant’s verification requests. For the foregoing reasons, the court finds in favor of plaintiff.

The facts adduced at trial were largely undisputed. Plaintiff submitted evidence of a prima facie case through defendant’s insurance adjuster, who admitted receipt of plaintiff’s claim on May 23, 2001. Defendant then issued a verification request on May 30, 2001 asking for specific information regarding the services provided. When plaintiff failed to respond to its initial verification request, defendant submitted a follow-up request for verification on June 29, 2001. On July 30, 2001, defendant sent a letter to plaintiff “closing” the matter, stating plaintiff failed to respond to defendant’s verification requests. However, on September 29, 2001, defendant received a response from plaintiff, including plaintiff’s sign-in sheets and acupuncture points. Defendant’s insurance adjuster testified that she found this response to be insufficient, as it did not provide plaintiff’s office notes, doctor’s re-exam narrative or information regarding acupuncture needles. Therefore, she inserted plaintiff’s response in the relevant file and took no further action. Upon receiving no denial or payment from defendant, plaintiff commenced this action.

The sole issue at trial was whether defendant had any duty to act after receiving plaintiff’s response to defendant’s verification requests. Defendant contends that it did not have to pay or deny plaintiff’s claim because plaintiff failed to comply with its timely verification requests. Defendant [*2]argues that it requested specific information regarding the acupuncture services plaintiff performed and that plaintiff’s response was late and insufficient. As plaintiff did not sufficiently comply with defendant’s verification request, defendant’s time to pay or deny plaintiff’s claim is not overdue and plaintiff is not entitled to compensation.

Plaintiff contends that defendant must pay its claim due to defendant’s failure to act after receiving plaintiff’s response. Plaintiff argues that it did provide a sufficient response to defendant’s verification request, and that it has no time frame under the no-fault regulations upon which to submit its response. Plaintiff further argues that while defendant did not have to issue a denial while the verification request was pending,{**2 Misc 3d at 909} once plaintiff submitted a response, defendant had a duty to either pay, deny or request further verification. Since defendant failed to act, it is precluded from presenting any defenses to plaintiff’s claim.

The court holds that defendant was derelict in failing to act upon receipt of plaintiff’s response to defendant’s verification request, and therefore plaintiff is entitled to payment. As long as plaintiff’s documentation is arguably responsive to defendant’s verification request, defendant must act within 30 days of receipt of plaintiff’s response, or will be precluded from presenting any noncoverage affirmative defenses. While the law is clear that defendant’s time to pay or deny is tolled pending receipt of some form of verification, once it has received verification, its time is no longer tolled and it has a duty to act. There is nothing in the no-fault regulations or case law that allows defendant to remain silent in the face of plaintiff’s response to its verification request. Defendant’s position defies the spirit and purpose of the No-Fault Law in promoting prompt resolution of matters. It is also inconsistent with the purpose behind verification requests in allowing defendant to investigate a claim and plaintiff the opportunity to fix any inadequacies in its claim. Further, since the no-fault regulations state that defendant should not issue a denial while a verification request is pending, defendant’s silence served to unfairly prejudice plaintiff by allowing the matter to remain in limbo because defendant found plaintiff’s good faith response insufficient. Defendant had numerous choices it could have made after receiving plaintiff’s response that would have preserved its right to challenge plaintiff’s claim. However, as defendant did nothing, its inaction constitutes a waiver of its defenses.

Under the no-fault regulations, an insurance company has 30 days from the date of receipt to either pay or deny a claim. (11 NYCRR 65.15 [g].) This time may be extended if the insurance company sends a verification request to the claimant within 10 days from the date of receipt of the claim. (11 NYCRR 65.15 [d] [1].) If the claimant does not respond to the insurance company’s request, the insurance company must send a follow-up request for verification to the claimant within 10 days of the claimant’s failure to respond. (11 NYCRR 65.15 [e] [2].) During this period, the insurance company’s time to pay or deny is tolled pending receipt of the requested information. Further, the insurance company shall not issue a denial until all requested verification is received. (11 NYCRR 65.15 [g] [1] [I].) Once the verification is {**2 Misc 3d at 910}received, then the insurance company has 30 days to pay or deny the claim. Failure to pay or deny a claim will result in preclusion of defendant’s affirmative defenses at trial. (See Presbyterian Hosp. v Maryland, 90 NY2d 274 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999].)

However, the regulations are silent as to what, if anything, the insurance company must do if it receives insufficient verification. The case law is also devoid of any obligation the insurance company has upon receipt of information it deems insufficient. Based upon the purpose of the No-[*3]Fault Law and controlling case law, though, it seems clear that the insurance company must affirmatively act once it receives a response to its verification requests.

The purpose of the no-fault statute is to ensure prompt payment of claims by accident victims. (Presbyterian v Maryland, 90 NY2d at 284; Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v New York City Tr. Auth., 151 AD2d 745 [2d Dept 1989].) In ensuring that legitimate accident victims receive swift compensation, the regulations are strictly construed and insurance companies have strict guidelines upon which they can act. (See Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 431 [2d Dept 1996], lv denied 90 NY2d 802 [1997].) An important aspect of that is allowing insurance companies to conduct investigations in order to determine the veracity and propriety of submitted claims. This can be furthered by requests for verification, which provide insurance companies with the opportunity to investigate and pay legitimate claims expeditiously. However, so as not to undermine the goals of prompt payment, insurance companies must issue these verification requests in accordance with the strict time requirements of the no-fault regulations. Further, to allow claimants the opportunity to rectify any deficiencies in their claims, insurance companies shall not issue denials while verification requests are pending. (See Boro Med. & Psych Treatment Servs., P.C. v Country Wide Ins. Co., 2002 NY Slip Op 50538[U] [App Term, 2d & 11th Jud Dists 2002].) This rule prevents prejudice to claimants, who otherwise might have legitimate claims denied for minor defects, and ensures insurance companies receive all relevant information necessary to pay or deny a claim.

As it is incumbent upon plaintiff to comply with all proper verification requests made by defendant in order to receive payment, it is equally incumbent upon defendant to expedite the processing of the claim. There is no provision of the no-fault regulations {**2 Misc 3d at 911}or case law that allows an insurance company to remain silent in the face of a legitimate, albeit insufficient, verification response. It is inconsistent with the goals of the No-Fault Law in encouraging swift payment of claims to allow an insurance company to ignore a response to its verification request merely because it believes the response to be inadequate. In Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553 [2d Dept 1999]), the Appellate Division, Second Department, admonished a plaintiff who failed to respond to a defendant’s verification request because it deemed the request to be “unintelligible.” The Court found that whether or not the request was confusing, it was clearly a verification request that plaintiff could not ignore without placing itself in peril. (See id. at 555.)

The present scenario is analogous to the facts of Westchester County Med., in that defendant did nothing because it believed plaintiff’s response to be incomplete. Based upon the Court’s decision, neither party may ignore communications from the other without risking its chance to prevail in the matter. (See id.) In this case, regardless of whether plaintiff fully responded to defendant’s claim, it was clear that the information plaintiff provided was in response to defendant’s request, and therefore defendant could not sit idly by and ignore it. By doing so, defendant placed itself in jeopardy by waiving its defenses to plaintiff’s claim. (See Presbyterian v Maryland, 90 NY2d at 280; Dermatossian, 67 NY2d at 225.)

Allowing defendant to do nothing in the face of a response to its verification request is overly prejudicial to plaintiff. If defendant cannot issue a denial because its verification request is outstanding, and defendant does not have to act upon receiving information from plaintiff, then defendant could allow a claim to be delayed indefinitely, while plaintiff believes it properly [*4]responded to defendant’s request. (See Atlantis Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40043[U] [Nassau Dist Ct 2002].) By allowing defendant to do nothing, the court would be assisting defendant in thwarting the very purpose of the No-Fault Law in ensuring swift resolution of claims. That purpose is clearly undermined by defendant’s failure to act on an otherwise legitimate claim. (See Metro Med. Diagnostics v Lumbermens Ins. Co., 189 Misc 2d 597, 598 [App Term 2001].) Further, it is overly prejudicial to claimants, who can only bring actions against insurance companies once there has been a determination that the claim is overdue. (See Westchester Med. Ctr. {**2 Misc 3d at 912}v Travelers Prop. & Cas. Ins. Co., 2001 NY Slip Op 50082[U] [Sup Ct, Nassau County 2001].) By allowing defendant to remain silent and not inform plaintiff of its reasons for failing to pay or deny a claim, the claim would be delayed indefinitely and no determination could ever be made if the claim was overdue. This might prevent plaintiff from commencing an action against defendant as premature, leaving the matter in limbo without any resolution. (See id.)

It is also unreasonable that defendant be rewarded for remaining silent and not having to act upon the receipt of information that plaintiff submitted in good faith in response to defendant’s request. It is important to note that in the cases where the courts have found the defendant’s time to pay or deny was tolled, it was because the plaintiff failed to respond in any manner to the defendant’s verification requests. (See New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]; Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].) In that circumstance, a plaintiff remaining silent and failing to act in the face of a proper verification request would be aware of the reason its claim had not been paid and a defendant would not need to take any further action. In the present matter, however, plaintiff attempted in good faith to respond to defendant’s verification request. While plaintiff’s response may have been months after receipt of the verification request, that delay only prejudiced plaintiff, who prolonged its time to be compensated for its claim. Defendant was not prejudiced by plaintiff’s failure to submit prompt verification responses, since defendant’s time was tolled during the period its request remained outstanding. (See id.) Therefore, it is unreasonable to allow defendant to ignore information plaintiff submitted in good faith without informing plaintiff of its deficiencies and allowing plaintiff an opportunity to submit the proper information. Defendant had a number of options that it could have pursued once it received plaintiff’s response rather than remaining silent. While an insurance company may not issue a denial of claim while its verification request remains outstanding, once it receives information from a claimant in response to its request, the ball is now in the insurance company’s court to act on the response. That action could be to pay the claim, deny the claim, or request further verification if it finds the provided response insufficient. The verification, however, does not remain outstanding simply because defendant only received some of the material {**2 Misc 3d at 913}it requested. Rather, an insufficient response requires action by the insurance company to either deny the claim for failure to provide all the requested information or, more appropriately in light of the goals of the No-Fault Law, to send a follow-up verification request, acknowledging the material received and further requesting the omitted material. (See Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].)

Defendant claimed that the information provided by plaintiff was incomplete and was insufficient to comply with defendant’s request. Rather than remaining silent, defendant could have requested further verification, submitted the information supplied for a peer review, or issued a [*5]denial based upon plaintiff’s failure to comply with verification requests.

Defendant could have issued a further request for verification, based upon the insufficiency of plaintiff’s response. It could have informed plaintiff that it still had not provided certain medical records defendant requested. It also could have asked for further clarification of the information plaintiff submitted which defendant’s insurance adjuster found incomplete. By submitting the additional verification request, defendant would have preserved its defenses and tolled its time to pay or deny plaintiff’s claim while the request remained outstanding. (See New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]; Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].)

Defendant could have presented plaintiff’s claim, including the response to its verification request, for a peer review. Since defendant’s insurance adjuster did not believe that the acupuncture report submitted by plaintiff was sufficient to comply with its request, defendant could have submitted the materials to a medical expert for review. That expert, with presumably more experience in the field of acupuncture than the insurance adjuster, could have informed defendant whether the information provided was responsive to defendant’s request, and made a determination whether the claim should be paid, denied, or if further verification was necessary.

Defendant also could have issued a denial, based upon plaintiff’s failure to comply with defendant’s verification requests. While the regulations prevent defendant from issuing a denial while a verification request remains outstanding, its request was no longer outstanding once it received plaintiff’s response.{**2 Misc 3d at 914} Since it is defendant’s position that plaintiff had numerous opportunities to comply with defendant’s verification request and failed to do so, defendant could have issued a timely denial for plaintiff’s failure to comply with verification requests without violating the no-fault regulations. Insurance companies often issue denials for other types of failure to comply with verification requests, such as when plaintiff assignors fail to appear at independent medical examinations or examinations under oath. (See Urban Med. Diagnostics, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40655[U] [App Term 2001]; Millennium Med. Diagnostics, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term 2001].)

As defendant took no steps to preserve its defenses to plaintiff’s claim, this court finds that defendant failed to comply with the No-Fault Law by failing to either pay or deny the claim within 30 days from the date of receipt of plaintiff’s response. Accordingly, judgment is awarded to plaintiff in the amount set forth in the complaint with statutory interest and fees.

[*1]

Civil Court of the City of New York, Queens County, December 23, 2003

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Marina O’Leary of counsel), for defendant. Glinkenhouse, Floumanhaft & Queen, Cedarhurst (Philip S. Floumanhaft of counsel), for plaintiff.

{**3 Misc 3d at 181} OPINION OF THE COURT

Charles J. Markey, J.

The legal issue of first impression raised by this case is whether a plaintiff-assignee medical equipment supplier can recover no-fault first-party benefits where the prescription for such supplies was written by a chiropractor, and not a physician.{**3 Misc 3d at 182}

On May 16, 1999, Velez was injured in an automobile accident.^[FN1] The next day, Velez consulted with Kenneth Pieratti, Doctor of Chiropractic, of Monument Chiropractic, P.C. Dr. Pieratti prescribed a thermophore (heat treatment to alleviate pain and spasms), a lumbar support (to alleviate pain and prevent compression on nerve roots), a cervical pillow (for proper positioning), a massager (for mechanical massage), a transcutaneous electro-nerve stimulator (TENS) unit (to prevent the transmission of pain nerve impulses), ordered with four leads for larger area stimulation, conductive garment (needed for TENS delivery for larger area stimulation), solid seat insert (for better positioning of the lumbar area), and an ice cap or collar (to alleviate swelling). The chiropractor completed a[*2]“Physician Statement of Medical Necessity” and signed a separate “Letter of Medical Necessity.”

Defendant GEICO General Insurance Company moves for summary judgment to dismiss the complaint, arguing that plaintiff-assignee ABC Medical Management, Inc. cannot maintain this action to recover no-fault first-party benefits for various items of equipment it furnished to its assignor Narmy Velez, since the prescription for such supplies was written by a chiropractor, and not a physician.

First, as an initial matter, although defense counsel states that she has attached copies of the pleadings, a review of the pertinent exhibit shows that only the answer is attached. CPLR 3212 (b) states that a copy of the pleadings must be attached as a prerequisite to a proper summary judgment motion. The cases in each department of the Appellate Division state that the failure to attach all the pleadings is sufficient grounds for denying the summary judgment motion, permitting leave to renew it (see, Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; Gallagher v TDS Telecom, 280 AD2d 991 [4th Dept 2001]; A & L Scientific Corp. v Latmore, 265 AD2d 355 [2d Dept 1999]; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]; accord Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 [1st Dept 2000]).

Although the foregoing authorities would be sufficient to deny GEICO’s motion, this court would be obliged to grant leave to renew {**3 Misc 3d at 183}which would only further congest the huge daily Special Term calendars, clogged by motions involving no-fault first-party benefits (see discussion in Zlatnick v GEICO, 2 Misc 3d 347 [Civ Ct, Queens County 2003]; Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352 [Civ Ct, Queens County 2003]). Rather than burden a colleague judge, for the sake of judicial economy, the court will address the heart of the defendant’s motion.

The substance of GEICO’s summary judgment motion is the defense contention that Education Law § 6551 prohibits a chiropractor from prescribing the aforementioned medical supplies and equipment. Education Law § 6551 (3), in pertinent part, states: “A license to practice chiropractic shall not permit the holder thereof . . . to prescribe, administer, dispense or use in his practice drugs or medicines . . . or to utilize electrical devices except those devices approved by the board as being appropriate to the practice of chiropractic.”

First, for purposes of this motion, the court will assume arguendo that section 6551 can be used by insurers to defeat recovery in a no-fault case—although the legal issue is not entirely free of doubt, has not been raised by counsel, and is not decided herein (see, State Farm Mut. Auto. Ins. Co. v Mallela, 2002 WL 31946762, *4, 2002 US Dist LEXIS 25187, *16-18 [ED NY 2002, Sifton, J.] [rejecting insurer’s view that a provision of New York’s Business Corporation Law intended to create a right to deny payment of no-fault benefit fees]; Matter of Pugliese v Hamburg, 223 AD2d 383 [1st Dept 1996]).

In King’s Med. Supply v Travelers Prop. Cas. Corp. (194 Misc 2d 667 [Civ Ct, Kings County 2003]), a thoughtful and seminal opinion discussing the prima facie burden of a medical supplier seeking to recover no-fault first-party benefits, the equipment at [*3]issue was virtually identical to that litigated herein. In King’s Med., the insurer simply contested the cost of a cervical pillow, lumbosacral support, thermophore, lumbar cushion, a 4-lead TENS, a cold pack, whirlpool, TENS unit, and a TENS belt (id. at 667-670). The court there observed: “[T]here is nothing unique about this equipment” (id. at 672).

This court’s independent legal research discloses that GEICO’s argument has been advanced by insurers and rejected, in principal part, by courts of other jurisdictions. In Haezebrouck v State Farm Mut. Auto. Ins. Co. (216 Ga App 809, 455 SE2d 842 [1995]), the appellate court reversed, in part, the lower court and held that a chiropractor could properly prescribe a TENS unit, {**3 Misc 3d at 184}a Lossing back and neck traction unit, a cervical collar, a cervical pillow, and knee support (216 Ga App at 810, 455 SE2d at 844). The court there noted that a statutory change permitted chiropractors to utilize hot and cold packs (id.; see also, SAIF Corp. v Ross, 191 Or App 212, 216, 82 P3d 1035, 1036 [2003] [approving chiropractor’s use of modalities of ice and warm compress]).

In Hofmann v Auto Club Ins. Assn. (211 Mich App 55, 535 NW2d 529 [1995], lv denied 452 Mich 870, 552 NW2d 170 [1996], reconsideration denied 452 Mich 870, 554 NW2d 313 [1996]), the court held that chiropractors were authorized to utilize cervical collars (to support and immobilize the spine), cervical pillows (to rehabilitate ligaments and musculature of the cervical spine), lumbar belts (to relieve the strain on the lumbar muscles and spine), and lumbar supports (to restore the normal curvature of the lumbar spine) (211 Mich App at 76-79, 535 NW2d at 541-542). The court in Hofmann, however, held that heat and cold were not included within the scope of chiropractic practice.

Cases in New York suggest that chiropractors may utilize thermophore and heat or cold therapy (see, Introna v Allstate Ins. Co., 850 F Supp 161, 165 [ED NY 1993] [“application of hot/cold packs . . . are neither ‘unusual’ nor ‘unique’ chiropractic services”]; see, e.g., Jimenez v Supermarket Serv. Corp., 2002 WL 662135, 2002 US Dist LEXIS 7029 [SD NY 2002]; Stanton v Hexam Gardens Constr. Co., 144 AD2d 132, 133 [3d Dept 1988]; see also, Everett v State Farm Indem. Co., 358 NJ Super 400, 402, 818 A2d 372, 373 [2002] [per curiam] [chiropractor may properly prescribe and recover “for a thermophore electric pad, commonly referred to as a heating pad, to relieve” strains and sprains], affd substantially on op below 175 NJ 567, 818 A2d 319 [2003] [per curiam] [5-2 decision]; see generally, King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d at 668, 672 [although not stating who prescribed the thermophore and other supplies, such equipment was not unique]).

This court holds that a chiropractor may prescribe TENS units, thermophore devices, cervical collars, cervical pillows, lumbar supports, massagers, ice packs, and similar supplies and equipment and that they do not constitute “drugs or medicines” within the meaning of the Education Law.

Further buttressing this court’s conclusion, although not cited by the parties, is the language of 11 NYCRR part 68, Appendix 17-C, part E (b) (1), stating: “For medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician{**3 Misc 3d at 185} or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.”

First, the above section provides essentially a fee schedule for equipment given by a physician or a medical equipment supplier. The plaintiff here, ABC, is a medical equipment supplier, and it provided the supplies to its assignor Velez. Dr. Pieratti, the chiropractor, did not furnish the supplies, and it is not the chiropractor who is seeking recovery for the supplies. Nothing in the foregoing regulation prohibits a chiropractor from prescribing the aforementioned supplies, to be dispensed by either a physician or a medical equipment supplier.

More important, the above-quoted provision of part E specifically lists “TENS units [and] soft cervical collars” as typical examples, denoted by the “e.g.” reference, of medical equipment and supplies.

This court has examined the cases cited by GEICO, and other cases, prohibiting chiropractors from performing electrotherapy (e.g., State v Wilson, 11 Wash App 916, 917, 528 P2d 279, 280 [1974], review denied 84 Wash 2d 1015, 528 P2d 279 [1974]; State v Boston, 226 Iowa 429, 278 NW 291 [1938]). These cases on electrotherapy are inapposite to the prescription of the unremarkable medical equipment prescribed herein. This court, at any rate, also notes that, under the terms of Education Law § 6551 (3), quoted above, New York permits chiropractors to utilize certain electrical devices that may be approved by the State Board for Chiropractors, and the 4-lead TENS unit at issue here is permissible.

The Insurance Law regulations specifically incorporate the fee schedules of the Workers’ Compensation Law (11 NYCRR 65.15 [o] [1]). The court has also reviewed, although not cited by either party, the Official New York Workers’ Compensation Chiropractic Fee Schedule (fee schedule), effective April 1, 2000 (see, 12 NYCRR 348.2 [a] [that provision of the Labor Law regulations specifically incorporates by reference the fee schedule]; 12 NYCRR 348.1, 348.2). The fee schedule specifically permits New York chiropractors to bill for electromyographic recordings, needle electromyography (EMG) tests, nerve conduction, and a host of other services.^[FN2]

Pertaining to medical equipment and supplies, the fee schedule, in its “General Ground Rules,” states:{**3 Misc 3d at 186}

“3. materials supplied by a chiropractor

“Supplies and materials provided by the chiropractor over and above those usually included with the office visit or other services rendered may be charged for separately. List drugs, trays, supplies [*4]and materials provided. Payment shall not exceed the invoice cost of the item(s), applicable taxes and any shipping and handling costs associated with delivery from the supplier of the item to the chiropractor’s office. There should be no additional ‘handling’ costs added to the total cost of the item. Bill using procedure code 99070.”

Since the fee schedule does not permit chiropractors to bill for a medical supply beyond the invoice cost, chiropractors apparently have little motivation to provide directly to the patient the needed equipment. Instead, the simple act of writing a prescription for the device by the chiropractor is more time-efficient for the chiropractor and more profitable for a medical supplier, under the aforementioned Insurance Law regulations that permit a charge of “150 percent of the documented cost of the equipment to the provider” (11 NYCRR part 68, Appendix 17-C, part E [b] [1]).

In moving for summary judgment, GEICO counsel used the following caption, which appeared in boldface type and underlined in its motion papers: “plaintiff has failed to prove medical need.” Despite the caption, suggesting that a discussion of its medical necessity defense would follow, GEICO did not develop the defense of medical necessity, did not include the peer review report cited in its answer, and restricted its argument to Dr. Pieratti’s alleged violation of Education Law § 6551 (3).

The cases are clear that in moving for summary judgment on the grounds of medical necessity, the burden is on the insurer to make a prima facie case by including the peer review report. Failure {**3 Misc 3d at 187}to include it warrants denial of the summary judgment motion (see, S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d Dept 2003] [peer review report would have been proper vehicle to assert and maintain defense of lack of medical necessity]; L.I. First Aid Med. Supply v Progressive Cas. Ins. Co., 196 Misc 2d 258 [Civ Ct, Queens County 2003]; S & M Supply v New York Cent. Mut. Fire Ins. Co., 193 Misc 2d 282, 284 [Civ Ct, Kings County 2002]). In the present case, it was plaintiff’s counsel, in opposition to the motion, who produced the peer review report. This court, accordingly, will discuss the alleged defense.

Louis Filardi, also a doctor of chiropractic and author of the peer review report, challenges Dr. Pieratti for prescribing all of the aforementioned medical equipment and supplies only one day after the accident. Citing Clinical Practice Guidelines No.14, published by the United States Department of Health and Human Services, Dr. Filardi states that 80%-90% of all individuals who complain of soft tissue injury have a resolution of their complaints in one month of the accident. He, therefore, expresses his astonishment for the necessity of prescribing “all of these durable medical goods” within 24 hours after the accident.

In the present case, the prescription, regardless of when it was written, may have been justified in light of the patient’s overall condition, not clearly disclosed on this record. The trier of fact ought to determine these contested issues. Accordingly, the defendant’s motion for summary judgment is, in all respects, denied.

Footnotes

Footnote 1: The peer review report submitted by GEICO maintains that the accident occurred on May 16, 1999. However, twice in Dr. Pieratti’s “Letter of Medical Necessity” the date of the accident is said to be April 16, 1999. Upon request by this court for confirmation, plaintiff’s counsel sent a fax disclosing that the accident was, indeed, on May 16, 1999.

Footnote 2: Under New York law, chiropractors may recover no-fault first-party benefits for conducting EMGs (see, Introna v Allstate Ins. Co., 890 F Supp 161, 165 [ED NY 1995]; Stephens v Allstate Ins. Co., 185 AD2d 338 [2d Dept 1992]; Studin v Allstate Ins. Co., 152 Misc 2d 221, 223-224 [Dist Ct, Suffolk County 1991] [chiropractors can recover for performing EMGs, citing Education Law § 6551 (3) and 8 NYCRR 73.3]; 12 Couch on Insurance 3d § 171:68 [1998] [chiropractor entitled to compensation for conducting surface EMGs]; see also, Posillico v Freeman, NYLJ, June 18, 1996, at 33, col 6 [Yonkers City Ct, Westchester County] [insurer did not contest chiropractor’s claim for electrical stimulation]; but cf. Downey v Barnhart, 294 F Supp 2d 495, 498, n 3 [SD NY 2003] [chiropractor was not an acceptable source for providing a medical interpretation of the EMG]; Machac v Anderson, 261 AD2d 811, 813 [3d Dept 1999] [chiropractor not licensed to interpret X rays]).