Supreme Court, Nassau County

3442/02

TO: Stillman & Stillman

By: Christopher McCollum, Esq.

Attorney for Plaintiffs

2622 East Tremont Avenue

Bronx, NY 10461

Julie A. Linwood, Esq.

McDonnell & Adels, P.C.

Attorneys for Defendants

401 Franklin Avenue

Garden City, NY 11530Howard Stern, Esq.

Werner, Zaroff, Stern, Ashkenazcz, LLP

Attorney for counterclaim

360 Merrick Road, 2nd Floor

Lynbrook, NY 11563

Daniel Palmieri, J.

The motion by plaintiffs for partial summary judgment pursuant to CPLR 3212 as to the 5th and 24th causes of action in the complaint (Hernandez and Leyva) is granted. Entry of judgment shall await resolution of all claims and counterclaims asserted by the parties hereto.

The motion by plaintiffs on the counterclaim (improperly denominated as a cross motion) for partial summary judgment pursuant to CPLR 3212 dismissing defendant’s counterclaim to the extent interposed against plaintiffs 5th and 24th causes of action in the complaint is denied.

The cross motion by defendant Geico for an order pursuant to CPLR 3126 striking plaintiffs’ pleadings, or in the alternative for partial summary judgment pursuant to CPLR 3212 summarily dismissing those portions of the complaint that request interest, is denied, without prejudice to requesting a negative inference charge from the trial court with regard to documents demanded but stated no longer to be in possession of the plaintiffs, and without prejudice to the service of a further demand consistent with this decision and order.

The background of this action is set forth in this Court’s prior order dated October 10, [*2]2006. In short, the principal of plaintiff Carnegie Hill Orthopedic Services, P.C. (“Carnegie”) and the owner of Devonshire Surgical Facility (“Devonshire”) is Dr. Allen Chamberlin, a physician whose license to practice medicine was revoked based on evidence of the performance of unnecessary procedures and filing reports with false diagnoses. See Matter of Chamberlin v New York State Bd. For Professional Med. Conduct, 34 AD3d 1097 (3rd Dept. 2006). Geico alleges that Dr. Chamberlin carried out an extensive and pervasive practice of fraud which included fabricating injuries, falsifying medical records to justify surgery billed for but not performed, and performance of procedures/surgeries which risked harm to patients. Nevertheless, the plaintiffs contend that pursuant to applicable Department of Insurance regulations they were entitled to be paid or to have their claims denied within the 30 days after proof of their claims were suppled to the defendant, and because neither occurred they are now entitled to be paid, with interest and attorneys’ fees.

Plaintiffs now move for partial summary judgment on two of their fifty-three claims for unpaid No-Fault first-party insurance benefits.

Summary judgment is the procedural equivalent of a trial. S.J. Capelin Assoc. Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 (1974). The function of the court in deciding a motion for summary judgment is to determine if triable issues of face exist. Matter of Suffolk Cty Dept of Social Services v James M., 83 NY2d 178, 182 (1994). The proponent must make a prima facie showing of entitlement to judgment as a matter of law. Guiffrida v Citibank Corp., 100 NY2d 72, 82 (2003); Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so. Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In an action for no-fault payments the plaintiff makes a prima facie showing of entitlement to judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of the No-Fault benefits was overdue. Insurance Law 5106(a); Westchester Medical Center v AIG, Inc., 36 AD3d 900 (2nd Dept. 2007). On this motion plaintiffs argue that they have presented a prima facie case for payment of no-fault benefits for services rendered to John Hernandez in 2000 in the amount of $15,802 and services rendered to Helio Leyva in 1998 in the amount of $15,801. They have submitted the requisite billing forms, certified mail receipts, signed return receipt cards, and an affidavit from Martha Chamberlin stating that she personally mailed the claims. There is no dispute that Geico failed to pay or deny the claims within 30 days. On this record the Court finds that plaintiffs have presented a prima facie case.

In opposition Geico relies upon its affirmative defenses, including lack of proximate cause, and its counterclaim of fraud, which this Court permitted Geico to assert by way of its order of October 10, 2006.

Specifically with regard to the claims at issue here, Geico submits a properly affirmed report of Dr. Craig Levitz who reviewed the records of the No-Fault plaintiffs in this case and opines, in pertinent part, as follows: [*3]

… Dr. Chamberlin persistently billed for procedures that he clearly did not perform, billed for non-reimbursable procedures, made up lavish and fraudulent explanations of these procedures in records and reports, performed surgery that was not indicated and maintained inadequate records. In addition it is my opinion that the nature of this fraud was so pervasive that it would be impossible for the Geico Insurance Company to detect the fraud within 30 days.

A review of 23 cases demonstrates a disturbing pattern. In every case Dr. Chamberlin operated within a week of the patients initial visit and in some cases, the same day on patients whose main physical exam complaint is pain. He failed to document any clinical indications of a more significant problem prior to surgery and each of these patients has a relatively normal MRI. In every case he finds the same exact pathology that requires the same exact treatment… He then billed Geico for procedures that were not indicated, to correct pathology that was not present, and delivered fraudulent explanations of these procedures.

….

In review of the specific claims against [sic] patient Hernandez…It is my opinion that in patient Hernandez there was nothing wrong with this knee, there is no evidence Dr. Chamberlin did anything nor discussed any of this with his patient. If he did surgery it was not indicated…

…

In examining the case of patient Leyva the same pattern of fraud that was documented by the office of professional conduct is seen as well. He once again begins with a normal patient with no documented finding, proceeds directly to surgery, performs his standard 5 procedures that he does on every patient and then is once again not satisfied with collecting payment for unindicated surgeries for pathology without documentation, but then fraudulently bills for these services… in patient Levya there was nothing wrong with his knee, there is no evidence Dr. Chamberlin did anything nor discussed any of this with his patient. If he did surgery it was not indicated.

Geico argues that the surgeries performed on John Hernandez and Helio Levya were not injuries sustained in or causally related to the accident, and therefore plaintiffs’ claims fall outside the scope of coverage of the underlying policies.

Pursuant to Insurance Law 5106(a), no-fault benefits are overdue if not paid by the insurer within 30 days after submission of proof of loss. See also, 11 NYCRR 65-3.8, formerly 11 NYCRR 65.15(g)(3). The insurer is precluded from asserting any defenses to payment when it fails to deny the claim within the required 30-day period. Presbyterian Hosp. in the City of New York v Maryland Casualty Co., 90 NY2d 274, 278 (1997). A narrow exception to this preclusion rule is recognized for situations where the insurer raises a defense of lack of coverage. Central General Hosp. v Chubb Group of Ins. Cos., 90 NY2d [*4]195, 198 (1997). The issue presented by this case is whether Geico’s defense and counterclaim of fraud is precluded by the 30-day rule, or whether the defense and counterclaim fall within the narrow exception for lack of coverage.

The defense of fraud based upon “staged accidents” or intentional collisions are considered defenses premised on lack of coverage, and have been found not subject to the rigorous 30-day rule because there was, in fact, no “accident.” See, Matter of Allstate Ins. Co v Massre, 14 AD3d 610 (2nd Dept. 2005); State Farm Mutual Automobile Ins. Co. v Laguerre, 305 AD2d 490 (2nd Dept. 2003); Metro Medical Diagnostics, P.C. v Eagle Ins. Co., 293 AD2d 751 (2nd Dept. 2002); see also, VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co., 16 Misc 3d 126(A)(App Term, 2nd & 11th Jud Dists 2007) and Vista Surgical Supplies Inc v State Farm Ins. Co., 14 Misc 3d 135(A)(App Term, 2nd & 11th Jud Dists 2007).

However, cases of fraud based upon fraudulent billing or excessive treatment are considered claims of “provider fraud” and can be precluded by the 30-day rule. Careplus Medical Supply Inc v State-Wide Ins. Co., 11 Misc 3d 29 (App Term, 2nd & 11th Jud Dists 2005); MGM Psychiatry Care PC v Utica Mutual Ins. Co., 12 Misc 3d 137(A) (App Term, 2nd & 11th Jud Dists 2006).

The key distinction is that in the first circumstance the insurance carrier demonstrated that an issue existed as to whether there was any coverage at all, whereas in the second the courts were presented with an exclusion under the policy, which does not mean that there was no contractual obligation in the first instance. In the latter, the 30-day rule still applies. Fair Price Supply Corp. v Travelers Indemnity Co., 9 Misc 3d 76 (App Term, 2nd Dept. 2005), affd 42 AD3d 277 (2nd Dept. 2007), lv granted 2007 Slip Op 78445 (2d Dept. Sept. 19, 2007)

In Fair Price the insurer was billed for various medical supplies, but the insured denied ever receiving any medical supplies as a result of injuries he sustained in the accident.

Nevertheless, the Appellate Term stated that one of the tradeoffs of No-Fault reform is that an insurer’s ability to resist “ill-founded, illegitimate and fraudulent claims” submitted by providers of medical services or medical equipment is limited to the “strict short-leashed contestable period,” of 30 days. See Presbyterian Hosp in City of New York at 285. It noted that the insurer is not without remedy; it could pay the claim and then bring an action to recover the benefits paid under a theory of fraud or unjust enrichment. 9 Misc 3d at 79-80. The Appellate Term directed payment of the subject no-fault claim.

In affirming the Appellate Term, Presiding Justice Prudenti summarized the Appellate Division’s view as follows: “Contrary to the defendant’s [insurer’s] contention, the alleged fraud in this case, no matter how egregious, was not related to the existence of coverage in the first instance. The plaintiff’s alleged failure to furnish services or supplies has no bearing on whether coverage for such services or supplies existed in [plaintiff’s assignor’s] insurance policy. Thus, enforcing the preclusion rule in this case does not have the effect of creating coverage that did not otherwise exist.” Fair Price, supra , 42 AD3d at 284.

The undersigned is of course bound by the law as established by the Appellate [*5]Division, Second Department. The fact that here the alleged fraud has to do with medical services either not provided or provided without justification, and not with supplies, is a distinction without a difference. Indeed, as noted in the above-quoted section of her opinion, Justice Prudenti places services on the same footing as supplies. In short, so long as there is no question that insurance existed-the case here-a defense to such payment based upon an exclusion from coverage, no matter how strong that defense might be, does not free the insurer from the 30-day rule. As no issue of fact exists with regard to the defendant’s failure to meet this requirement, summary judgment must be granted on the two claims at issue. Indeed, cases involving claims of other recipients of treatment or services from Dr. Chamberlin and these same plaintiffs have been construed as cases of “provider fraud,” wherein the insured’s failure to comply with the 30-day rule precluded consideration of the alleged fraud. Devonshire Surgical Facility v Geico, 16 Misc 3d 130(A), (App Term, 1st Dept. 2007); Devonshire Surgical Facility v Geico, 14 Misc 3d 1208(A) (Civ Ct., NYCty, 2006).^[FN1]

It may be that the type of fraud allegedly committed here could not reasonably be detected by a simple question put to the assignor, as was the suggestion made by the Appellate Division in Fair Price, at 285: “We find it doubtful that an insurer… will often need to do more than… simply ask the insured whether he or she received the medical supplies in question.” Nevertheless, and as indicated above, the legal concept and factual scenario underlying the Appellate Division’s determination cannot be distinguished from the matter before this Court in a meaningful way.

The Court notes, but must reject, the defendant’s contention that because a counterclaim in fraud exists that might be of equal or greater value than what the plaintiff stands to recover on these claims, it should deny summary judgment. A denial on this ground is appropriate where the claims are so intertwined that they cannot be separately analyzed. However, here they can be, because the requirements of Department of Insurance regulations clearly have been viewed as an obligation separate and distinct from any other obligation that may be imposed on the parties by other law. Cf., Yoi-Lee Realty v 177th Street Realty Assocs., 208 AD2d 185 (1st Dept. 1995).

The foregoing, however, also means that the counterclaims asserted by the defendant to recover moneys already paid in connection with any of the allegedly fraudulent claims can be separately pursued. On this record, and especially in view of Dr. Levitz’s affirmation, defendant has raised a triable issue of fact as to fraud in connection with the claims presented. The theories of recovery based on these allegations sound in fraud and unjust [*6]enrichment, and are attacked by the plaintiffs are being without support under New York common law. However, the Appellate Term endorsed both such theories in Fair Price, and its determination was affirmed by the Appellate Division without any comment on this suggested remedy. For this reason summary judgment dismissing the counterclaims is denied.

The Court now turns to defendant’s motion to dismiss the complaint for failure to comply with the following five court orders: (1) order dated November 17, 2005, by Judge Brennan directing responses to questions; (2) a preliminary conference order dated February 9, 2006 by Judge Brennan; (3) this Court’s order dated October 10, 2006, directing plaintiffs to provide answers and supporting documentation to certain interrogatories; (4) this Court’s conference order dated November 2, 2006, incorporating its prior decision of October 10, 2006; and (5) this Court’s further conference order dated February 8, 2007 wherein this Court directed that the parties continue to comply with the order of October 10, 2006.

Striking a pleading in inappropriate absent a clear showing that the failure to comply with discovery demands is wilful, contumacious or in bad faith Conciatori v Port Authority of New York and New Jersey, __AD3d__, 846 NYS2d 659 (2nd Dept. 2007); Negro v St. Charles Hosp and Rehabilitation Center, 44 AD3d 727 (2nd Dept. 2007). Defendant has made no such showing.

The major point of dispute concerns production of fifty-two “special reports” of range of motion, neurological testing, and muscle power testing, all with alleged abnormal findings. These “special reports” were used to justify the surgery billed by the plaintiffs. Dr. Chamberlin testified that the medical files originally did contain such “special reports” and he does not know the present location of the reports (for example see Chamberlin transcript at pp. 152-158, 208-209, 233-234, 264-265, 290-292, 316-317, 332-333). Under these circumstances striking of plaintiffs’ pleading is not warranted, and further discovery orders would be unproductive. The missing evidence does not prevent defendants from proving their defenses and counterclaims based upon the remaining medical records and the testimony of their expert, but it appears that it may seek a negative inference charge at trial. Yechieli v Glissen Chemical Co., Inc., 40 AD3d 988 (2nd Dept. 2007); EW Howell Co., Inc. v SAF LaSala Corp., 36 AD3d 653 (2nd Dept. 2007); see Mylonas v Town of Brookhaven, 305 AD2d 561 (2nd Dept. 2003). That, however, is a matter to be placed before the trial court.

Defendant further complains that it served a Demand for Discovery and Inspection dated April 13, 2007, which requested the production of 20 items, and that plaintiffs have failed to provide the requested documentation. A review of the April 2007 demand reveals that it seeks, inter alia, documents related to Dr. Chamberlin’s taxes and his personal bankruptcy proceeding.

Tax returns and other financial information are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources. Benfeld v Fleming Properties, LLC, 44 AD3d 599 (2nd Dept. 2007); Chang v SDI International Inc., 15 AD3d 520 (2nd Dept. 2005); Latture v Smith, 304 AD2d 534 (2nd Dept. 2003). Defendant’s argument that it needs such documents to establish [*7]a motive for fraud by Dr. Chamberlin, namely that he need to recoup more than $6,000,000 he lost from 1985-1993 ( see Chamberlin v Commissioner of Internal Revenue, 14 Fed Appx. 69 (2d Cir. 2001) is untenable. This action concerns No-Fault claims, and the existence and discoverability of fraud in connection with those claims. The defrauding party’s need to defraud is immaterial, and requests directed to such motivational questions are thus outside the scope of permissible inquiry. Where, as here, discovery requests are numerous and some are improper, the Court need not prune the requests Chang v SDI International Inc. Consequently, defendant’s Demand for Discovery and Inspection dated April 13, 2007, cannot form the basis for relief based on either CPLR 3126 or CPLR 3212, and to the extent it has not been answered need not be. This ruling is without prejudice to service of any further proper demand within 20 days of the date of this order.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: January 29, 2008

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice

TO:Stillman & Stillman

By: Christopher McCollum, Esq.

Attorney for Plaintiffs

2622 East Tremont Avenue

Bronx, NY 10461

Julie A. Linwood, Esq.

McDonnell & Adels, P.C.

Attorneys for Defendants

401 Franklin Avenue

Garden City, NY 11530

Howard Stern, Esq.

Werner, Zaroff, Stern, Ashkenazcz, LLP

Attorney for counterclaim

360 Merrick Road, 2nd Floor

Lynbrook, NY 11563

Footnotes

Footnote 1: It should be noted that these cases do not collaterally estop defendant from litigating the instant action, as collateral estoppel does not apply to a prior determination involving solely a question of law. Sterling National Bank as Assignee of NorVergence, Inc. v Eastern Shipping Worldwide, Inc., 35 AD3d 222, 223 (1st Dept. 2006); Avon Development Enterprises Corp v Samnick, 286 AD2d 581 (1st Dept. 2001). Here that question of law is the application of the 30-day rule, or the exception thereto.

Supreme Court, Nassau County

013941/07

JOSEPH HENIG, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P. O. Box 1144

Bellmore, NY 11710

SHORT & BILLY, P.C.

Attorney for Defendant

217 Broadway, Suite 300

New York, NY 10007

James P. McCormack, J.

Motion pursuant to CPLR § 3212 by plaintiffs, Westchester Medical Center (hereinafter Westchester) , The New York Hospital Medical Center of Queens (hereinafter New York Hospital); Sound Shore Medical Center (hereinafter Sound Shore) et.al., for summary judgment.

The instant action involves three no-fault insurance claims against defendant American Transit Insurance Company (hereinafter American Transit), by Westchester, New York Hospital, and Sound Shore for services rendered to Daphne McPherson, Arnold Terlien, and Raymond Labrusciano, patients involved in three unrelated automobile accidents. The claims herein stem from hospital bills that were allegedly never paid by defendant insurer. Plaintiff filed the instant motion seeking summary judgment pursuant to Insurance Law Section 5106(a).

Section 5106 (a) of the New York State Insurance Law provides that payment of a no-fault claim by an insurer is considered overdue if it is not paid or denied within 30 days after the claimant provides the insurer with proof of fact and amount of loss related to the claim. Interest is accrued at a rate of 2% for every month the claim remains unpaid (see Hempstead Gen. Hosp. v Ins. Co. of N. Am., 208 AD2d 501; see also Smithtown Gen. Hosp. v State Foram Mutual Auto Ins. Co., 207 AD2d 338.) In addition, the claimant is entitled to reasonable attorney’s fees “for services necessarily performed in connection with securing payment of an overdue claim” subject to certain limitations outlined in 11 NYCRR 65.17; NY Ins Law 5106 (a). Specifically, “once a court action has been commenced, 11 NYCRR 65.17(b)(6)(v) grants an attorney’s fee on no-fault insurance claims of 20% of the amount of first-party benefits awarded plus interest with a maximum payment of $850 per claim.” ( Hosp. for Joint Diseases v Nationwide Mutual Ins., 284 AD2d 374.)

In order to succeed on a motion for summary judgment, the plaintiff must demonstrate through competent evidence that there is no issue of material fact upon which reasonable people could disagree. (Baly v Chrysler Credit Corp., 94 AD2d 781.) Summary judgment is a drastic [*2]remedy and should only be granted where there are no triable issues of fact. (Andre v Pomeroy, 35 NY2d 361.) The goal of summary judgment is to issue find, rather than to issue determine. (Hantz v Fleischman, 155 AD2d 415.) If there is any reasonable question raised as to any alleged fact of a claim “based on personal knowledge and documentary evidence”, then a motion for summary judgment must fail and the case must proceed to trial in order to resolve the issue. (Baly, 94 AD2d 781, citing Behar v Ordover, 92 AD2d 557.)

McPherson Action

The plaintiff, Westchester is the assignee for health service rendered to Ms. McPherson between January 15, 2007 and January 22, 2007. That treatment was necessary after an automobile accident which occurred on January 14, 2007. According to the plaintiff, the defendant was billed on February 16, 2007 with a Hospital Facility Form (Form N-F 5) and UB-92, for payment of a hospital bill in the sum of $6,993.96. That bill, according to the plaintiff, was sent certified mail return receipt requested and was received by the defendant on February 20, 2007. Plaintiff allege the defendant failed to either pay the hospital bill or to issue a timely Denial of Claim Form within 30 days. Moreover, plaintiff Westchester claims that when they did finally get a Denial of Claim Form it was untimely, as it was dated April 5, 2007. In addition, the plaintiff claims the reason given on the Denial of Claim form “Claimant is eligible for workers’ comp…” is an invalid reason for denial.

In Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274, the Court of Appeals stated, “[A]n insurer may be precluded from interposing a statutory exclusion defense for failure to deny a claim within 30 days as required by Insurance Law section 5106(a) and 11 NYCRR 65.15 (g)(3).”The bill, although denied, was denied untimely and according to plaintiff remains unpaid as of today. Accordingly, the defendant did not deny the claim in a timely fashion as required under Insurance Law 5106(a), and as such, the court must grant summary judgment to the plaintiff and order defendant to pay the outstanding hospital bill in the amount of $6,993.96 with statutory interest and attorney’s fees. Counsel for plaintiff is directed to submit judgment on notice.

Terlien Action

On February 5, 2007, Arnold Terlien was in a auto accident for which he received treatment at The New York Hospital from February 5, 2007 to February 9, 2007. Terlien assigned his claim for no-fault medical benefits to the New York Hospital.

The New York Hospital subsequently billed defendant, American Transit on May 9, 2007 for the treatment in the sum of $4,670.17. Plaintiff billed with a Form N-F5 (Hospital Facility Form) and a UB-92 form by certified mail, return receipt requested. According to the plaintiff, the bills were received on May 10, 2007. Defendant does not deny receipt of this bill but rather claims the claim was immediately denied on May 11, 2007 on the grounds that proper notice of claim in writing was not received within 30 days of the date of the accident. Summary judgment must be denied where there are factual issues in dispute. If a genuine issue of fact exists, summary judgment must be denied (see Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395) Summary Judgment is a drastic remedy and should be denied if there is any significant doubt as to the existence of a triable issue or if there is even arguably such an issue. When a disputed question of fact arising out of a No-Fault denial arises, the court should deny summary [*3]judgment. (see Hospital for Joint Diseases v Nationwide Mutual Ins. Co., 284 AD2d 374).

Accordingly, the court finds there is a sufficient factual issue that prevents this court from granting summary judgment. Therefore, the Terlien matter will be placed on the court’s calendar for a conference on March 18, 2008.

Labrusciano Action

Plaintiff, Sound Shore, is the assignee for health services rendered to Raymond Labrusciano during the period from January 13, 2007 through January 19, 2007. The injuries were the result of an automobile accident on January 13, 2007.

According to the plaintiff, the defendant American Transit, was billed on February 5, 2007 with Hospital Facility Form (N-F 5) and a UB-92, for payment of a hospital bill in the sum of $17,967.83. The plaintiff states the bill was mailed certified mail, return receipt requested and was received by defendant on February 7, 2007. Defendant agrees that they received the bill on February 7, 2007 and states that the defendant requested verification including (1) complete medical records; (2) a signed assignment of benefit for and (3) a completed and signed N-F 5. Thereafter, when no response had been received regarding the Labrusciano claim, the defendant sent a second request for the same information on March 14, 2007. According to the defendant on June 4, 2007 plaintiff finally responded to the two prior letters and provided the verification that had been requested. Thereafter, on June 29, 2007, defendant made a timely denial of the plaintiff’s claim. This was clearly within 30 days of the receipt of the verification that had been repeatedly requested. Plaintiff failed to address any of these communications in their motion presently before the court, but rather moves this court to grant summary judgment due to an untimely denial. Accordingly, summary judgment is denied as to the Labrusciano claim as it appears the claim was denied in a timely fashion. This matter will also be placed on the court’s calendar for a conference on March 18, 2008.

This constitutes the decision and order of this court.

Dated: January 21, 2008

JOSEPH HENIG, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P. O. Box 1144

Bellmore, NY 11710

SHORT & BILLY, P.C.

Attorney for Defendant

217 Broadway, Suite 300

New York, NY 10007

Supreme Court, Nassau County

000930/07

Plaintiffs Attorney

Joseph Henig, PC

1598 Bellmore Ave.

Bellmore, NY 11710

Defendants Attorney

Martin Fallon & Mulle

115 Broadway

New York, NY 10006

Karen V. Murphy, J.

Plaintiffs move this Court for an order pursuant to CPLR § 3212, granting Summary Judgment in their favor. Defendant opposes the requested relief and asks the Court, pursuant to CPLR § 3212(b), to grant Summary Judgment in its favor or, in the alternative, grant a hearing to determine the amount to which they are entitled.

To establish a prima facie entitlement to summary judgment as a matter of law, the plaintiff hospital is required to submit evidentiary proof that the prescribed billing forms were mailed and received, and that payment of no fault benefits is overdue. Insurance Law § 5106(a); 11 N.Y.C.R.R. 65.15(g)(3); (Mount Sinai Hospital v. Joan Service Corp., [*2]

22 AD3d 649, 803 NYS2d 102 (2d Dept., 2005), citing Mary Immaculate Hosp.

v. Allstate Ins. Co., 5 AD3d 742, 743, 774 NYS2d 564 (2d Dept., 2004); St. Luke’s Roosevelt Hosp. v. American Transit Ins. Co., 1 AD3d 498, 767 NYS2d 252 (2d Dept., 2003); St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743, 757 NYS2d 457 (2d Dept., 2003); New York and Presbyterian Hospital v. Allstate Ins. Co., 295 AD2d 412, 743 NYS2d 733 (2d Dept., 2002). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the Defendant. (See Makaj v. Metropolitan Transportation Authority, 18 AD3d 625, 796 NYS2d 621 [2d Dept., 2005]).

With respect to Plaintiff St. Vincent’s Hospital of Richmond, a/a/o Ednita Lorenzo, it is undisputed that Ms. Lorenzo was admitted to the hospital on December 19, 2005 and discharged on December 30, 2005. Defendant has not challenged that the NYS Form NF-5 was mailed on October 27, 2006 and received by them on October 30, 2006. According to the August 9, 2007 affidavit of Susan Weinstein, a biller and account representative for Hospital Receivable Systems, Inc., a defective denial of claim form dated November 14, 2006 was issued, containing an incorrect amount of the bill and the amount in dispute. It is also undisputed that on November 27, 2006 Defendant paid the claim in the amount of $9,913.37. There is a dispute as to an unpaid balance of $13,349.21, plus statutory interest and attorney’s fees.It is Defendant’s position, supported by the Affidavit of Gina Pisano, Claim representative for Defendant, that they sent a proper partial denial of the claim, for bills in excess of $9,913.37, as the charges were in excess of the proper no fault fee schedule. There is no dispute that the partial denial was sent in a timely fashion.

Simultaneous with Defendant making payment in the amount of $9,913.37, a second check in the same amount was sent to Plaintiff and cashed. Defendant argues that this was a clerical error and seeks a judgment in its favor for this amount. In the alternative, Defendant seeks a hearing to determine the proper fee for the services rendered by it under the New York no fault fee schedule. Plaintiff does not address the alleged over payment in its opposition papers.

It is undisputed that the denial was sent in a timely fashion. This Court finds a question of fact exists with respect to whether or not the fees charged were in excess of the Workers’ Compensation fee schedule. (See A.B. Med. Servs., PLLC v. American Tr. Ins. Co., 15 Misc 3d 132(A), 839 NYS2d 431 (App. Term 2d & 11th Judicial Dists., 2007); see also Robert Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co. 13 Misc 3d 172, 822 NYS2d 378 (Civil Ct., City of NY, 2006) [The Workers’ Compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for No-Fault benefits.]) A hearing is necessary to determine how much should have been billed. While there was no opposition to Defendant’s cross motion with respect to the payment of $9,913.37, questions of fact exist with respect to the amount due, which will be resolved at the hearing. Summary judgment is therefore denied to both parties.

This matter is referred to the Calendar Control Part (CCP), for a hearing to be held on February 28, 2008 at 9:30 a.m.. The Plaintiff shall file and serve a Note of Issue, together with a [*3]copy of this Order, on all parties and shall serve copies of same, together with receipt of payment, upon the Calendar Clerk of this Court within twenty (20) days of the date of this Order. The directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer, or a Court Attorney/Referee, as he or she deems appropriate.

With respect to the cause of action on behalf of Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, Plaintiff alleges that these actions are joined as they are covered under a uniform policy of insurance and involve the interpretation of the same provisions of the Insurance Law. However, no policy was attached to the instant motion and there is nothing before this Court to show any connection between the Plaintiffs or their claims.

CPLR § 1002(a) provides for a permissive joinder of Plaintiffs where they “assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences . . . if any common question of law or fact would arise.” While it is true that the same sections of the Insurance Law are applicable in the instant action, Plaintiffs have failed to satisfy the first prong of CPLR § 1002(a).

The Court sua sponte severs the Second Cause of Action and grants leave to Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, to purchase an Index Number and proceed separately on the Cause of Action against State Farm Mutual Automobile Insurance Company. (Mount Sinai Hospital v. MVAIC, 291 AD2d 536, 738 NYS2d 247 [2d Dept., 2002]). Severance is a matter of judicial discretion based upon a weighing of all the circumstances in a particular case. The First and Second Causes of Action herein are completely unrelated in time, place, party and circumstance.

The foregoing constitutes the Order of this Court.

Dated: December 31, 2007

Mineola, NY

J. S. C.

[*1]

Supreme Court, Appellate Term, First Department, December 19, 2007

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Ioanna Olivia Zevgaras of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**18 Misc 3d at 228} OPINION OF THE COURT

Per Curiam.

Order, dated June 16, 2006, reversed, with $10 costs, defendant’s motion for summary judgment granted, and complaint dismissed. The clerk is directed to enter judgment accordingly.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer’s affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff’s claim for first party no-fault benefits lacked medical necessity. In opposition, plaintiff relied upon an attorney’s affirmation accompanied by a single, unsworn and undated doctor’s report, which was not properly before the court and should not have been considered (see Grasso v Angerami, 79 NY2d 813 [1991]; Black v Regalado, 36 AD3d 437 [2007]; Henkin v Fast Times Taxi, 307 AD2d 814 [2003]). While a physician’s affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]), an attorney’s affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence. In any event, even if considered, the unsworn report of plaintiff’s doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

McKeon, J.P., McCooe and Davis, JJ., concur.

Supreme Court, Queens County

29079/06

Jaime A. Rios, J.

The issue presented in this CPLR 7503 proceeding to stay arbitration is whether the owner of an uninsured motorcycle can recover underinsurance benefits pursuant to an automobile policy issued to a member of his family household, when that policy contains an exclusion for uninsured “motor vehicles” owned by the insured.

The facts which give rise to the controversy involve an accident which occurred on October 4, 2006. On that date, Respondent Francis Lang (Lang) while operating his uninsured motorcycle collided with a car driven by Ming Zheng (Zheng).The Zheng vehicle was insured through GEICO. Following the accident, Lang filed a claim for personal injuries against Zheng. The claim was settled by Zheng’s insurer by the tender of $25,000 representing the full limits of the Zheng policy with GEICO.

Following the settlement, Lang demanded arbitration of a claim for underinsurance benefits pursuant to an automobile policy issued to family members Thomas and Mary Lang (Thomas & Mary) with whom he resided. Thomas & Mary were coincidentally insured through GEICO, who promptly disclaimed coverage based upon an exclusion contained in the Supplementary Uninsured/ Underinsured Motorist (SUM) endorsement of its policy. By correspondence dated November 9, 2006, GEICO advised Lang that it was disclaiming coverage on the basis that Lang “was operating his own motorcycle which was not insured at the time of this loss”.

On November 14, 2006 Lang demanded arbitration of his SUM claim and the subject proceeding ensued. By order of this court (Rios, J.) dated June 4, 2007, the Lang arbitration was stayed pending a hearing on the validity of the GEICO disclaimer which was premised on the exclusion contained in the SUM endorsement. On the hearing date of October 18, 2007, the [*2]parties agreed to the introduction into evidence of a copy of the GEICO automobile policy and stipulated that the court’s adjudication rested upon an interpretation of the applicability of the SUM exclusion to Lang’s motorcycle.

The Exclusions sections of the SUM endorsement of the GEICO policy reads in part: “This SUM coverage does not apply…(2). to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage under the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of this policy.”

Lang argues that the term motor vehicle and motorcycle are defined separately in the “Other Definitions” section of the no-fault (PIP) endorsement of the policy and pursuant to that definition, a motor vehicle does not include a motorcycle.

While the term motor vehicle was not specifically defined in the SUM endorsement of the policy, unlike the language in the PIP endorsement, a motorcycle was not specifically excluded from its definition. Further, the term motor vehicle has been construed to include a motorcycle for purposes of uninsured motorist coverage (see Country-Wide Ins. Co. v Wagoner, 45 NY2d 581 [1978]; Nationwide v Riccadulli, 183 AD2d 111 [1992]). Specifically, the policy exclusion relied upon by GEICO has been held to be unambiguous as it applies to a motorcycle owned and occupied by the insured that is not insured for SUM coverage (see USAA Cas. Ins. Co. v Hughes, 2006 NY Slip Op 9259; Utica Mut. Ins. Co. v Reid, 22 AD3d 127 [2005]; Cohen v Chubb Indem. Ins. Co., 286 AD2d 264 [2001]; Liberty Ins. Co. v Panetta, 187 AD2d 719 [1992]).

It is well settled that the liability, no fault and uninsured motorist portions of a comprehensive automobile insurance policy are discrete and internally complete coverages and should be read that way (see Utica Mut. Ins. Co. v Reid, 22 AD3d 127, supra; Eveready Ins. Co. v Asante, 153 AD2d 890 [1989]). SUM coverage exists separate and apart from the policy to which it is annexed and thus can not be qualified by inapplicable provisions of the PIP portion of the policy (see Knickerbocker Ins. Co. v Faison, 22 NY2d 554 [1968]; Eveready Ins. Co. v Asante, 153 AD2d 890 [1989]; Cohen v Chubb Indem. Ins. Co., 286 AD2d 264 [2001]).

Here, as it is undisputed that Lang, an insured under the GEICO policy, was operating an uninsured motorcycle he owned at the time of the subject occurrence, he is precluded from recovering underinsurance benefits pursuant to the exclusion in GEICO’s SUM endorsement.

Accordingly, GEICO’s petition for a permanent stay of underinsurance arbitration demanded by Lang is granted.

Dated: December 3, 2007________________________

Index No.: 29079/06J.S.C.

Supreme Court, Nassau County

019900/06

F. Dana Winslow, J.

This motion by plaintiff Westchester Medical Center a/a/o Christopher Andrews and Michael Mascolo for an order pursuant to CPLR 3212 granting them summary judgment is granted as provided herein.

This cross-motion by defendants Encompass Insurance Company and Allstate Insurance Company for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is denied.

In this action pursuant to Insurance Law § 5106(a), the plaintiff Westchester Medical Center seeks payment of no-fault medical insurance benefits for services rendered to the individual plaintiffs, Christopher Andrews and Michael Mascolo. Westchester Medical Center has represented that its claim o/b/o plaintiff Michael Mascolo has been settled, however, that has not been established. Westchester Medical Center’s motion for summary judgment with respect to Michael Mascolo’s claim is denied without prejudice to renewal.

In its complaint, Westchester Medical Center alleges that it rendered medical services to Christopher Andrews for injuries related to a June 8, 2005 motor vehicle accident from June 26, 2006 through June 28, 2006; that it billed defendant Encompass Insurance Company for those service in the amount of $11,733.84 via an N-F5 and UB-92 on September 25, 2006, which notice was sent via certified mail, return receipt requested; that Encompass Insurance Company received that claim on September 27, 2006; and, that Encompass Insurance Company has failed to pay or deny that claim.

Westchester Medical Center presently seeks summary judgment pursuant to Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1), as well as attorneys fees pursuant to 11 NYCRR 65-4.6(e).

Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1) provide that first party benefits shall be paid as the loss is incurred and that such benefits are overdue if not paid within 30 days [*2]after proof of fact and the amount of the loss is submitted.

“The plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits [is] overdue.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005) citing Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(3); Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986); Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

In opposition, Encompass Insurance has submitted an affidavit by claims representative Diana Dwyer in which she attests that Westchester Medical Center’s claim for services rendered to Christopher Andrews was denied via a regulatory prescribed form on October 17, 2006 for not having been timely made. Stacey Melton, Senior Print Division Manager at the insurance company’s processing center, details how claims are processed and denied. She states that because the NF-10 and Explanation of Benefits are dated October 17, 2006, office procedure indicates that they were mailed that day, prior to the 30 days in which Encompass was required to act on Andrew’s claim.

The defendant Encompass Insurance has failed to submit a proper affidavit of service to establish that the denial of claim form was in fact mailed to plaintiff. Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 564-565, citing Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 (2nd Dept. 2001).

In any event, “even if the defendant timely issued the denial of claim form within 30 days of its receipt of the plaintiff’s [claim], [a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.’ ” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 (NY Sup. App. Term 2004); Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d 664 (2nd Dept. 2004). “A proper denial of claim must include the information called for in the prescribed denial of claim form.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 565, citing NYCRR 65-3.4(c)(11); Nyack Hosp. v State Farm Mut. Auto. Ins. Co., supra, at p. 664.

11 NYCRR 65-3.3(e) provides:

“”When an insurer denial a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.”

This “regulation ameliorates the impact of the severely shortened time periods in which a claimant must submit its notice of claim or proof of claim . . . and while the use of mandatory language, such as must,’ is not conclusive, it is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary intent.” Radiology Today v Citiwide Auto Leasing, Inc., 15 Misc 3d 92, 94 (NY Sup. App. Term 2007), citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 177; Matter of Janus Petroleum v New York State Tax Appeals Tribunal, 180 AD2d 53, 54 (3rd Dept. 1992), quoting People v Schonfeld, 74 NY2d 324, 328 (1989). A defense based on an untimely submission of claim is barred where, like here, there is a lack of proof of [*3]compliance with the notice requirement of 11 NYCRR 65-3.3(e). Radiology Today v Citiwide Auto Leasing, Inc., supra, at p. 94.

Plaintiff Westchester Medical Center is accordingly granted summary judgment in the amount of $11,733.84 as and for its claims asserted o/b/o Christopher Andrews, as well as attorney’s fees.

Submit judgment on notice.

Dated:ENTER:

_________________________________

J.S.C.

Supreme Court, Nassau County

001943/07

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

Daniel Palmieri, J.

The motion by the plaintiff Westchester Medical Center (“WMC”) pursuant to CPLR 3212 for summary judgment is denied. The cross motion by the defendant Allstate Insurance Company (“Allstate”) pursuant to CPLR 3212 for summary judgment is granted and the complaint is dismissed.

This is an action for payment of no-fault benefits by a provider of medical services, as assignee of the covered person’s claim therefor. It is undisputed that assignor Jose Correa was a patient at plaintiff’s facility from July 28 through August 31, 2006. By way of affidavit of an account representative for the plaintiff, Peter Kattis, and associated documentation, the plaintiff has demonstrated that a billing in the amount of $121,755.40 for this admission was mailed to the defendant on September 14, 2006 and received September 19, 2006. WMC also presents a partial denial of claim form dated October 23, 2006, which is claimed to be untimely and, in addition, defective in that it is incomplete and incorrectly states the amount in dispute. On December 15, 2006 the defendant made a payment of $37,560.01 to Taylor Care Center, leaving an unpaid balance of $84,195.39.

The foregoing constitutes proof sufficient to make out a prima facie showing that the plaintiff is entitled to judgment as a matter of law for the balance stated, with statutory interest and attorneys’ fees, as it establishes that the defendant failed either to pay the hospital bill or to issue a timely denial within 30 days of receipt of the claim. Insurance Law § 5106(a); 11 NYCRR 65-3.8(a)(1); see, Hempstead Gen. Hosp. v Insurance Co. of N.Am., 208 AD2d 501 (2d Dept. 1994). The burden thus shifts to Allstate to demonstrate that issues of fact exist with regard to plaintiff’s right to the relief sought in its complaint. See generally, Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In response, however, the defendant has presented evidence demonstrating that issues of fact exist precluding judgment in plaintiff’s favor. By way of affidavit of a no-fault claims representative [*2]employed by Allstate, Dietra Tripp, and associated documentation, the defendant has met its burden.

On September 29, 2006 a written statement was sent to Taylor Care Center requesting its records regarding Correa’s admission. Tripp states that upon receipt of the records, and within 30 days thereafter, a statement indicating approval of a partial payment and denial of the balance was issued on October 23, 2006. An NF-10 form bearing this date and containing this information is annexed to her affidavit. Although WMC’s presents proof in reply that it voluntarily mailed complete medical records to Allstate, which were received on September 30, 2006 (i.e., the verification request of September 29 was unnecessary and crossed in the mail), this does not mean that the verification request itself was improperly issued, as at the time Allstate did not yet have the records it needed to evaluate the claim. The request for verification therefore tolled the 30-day period to pay or deny the claim until the records were received. 11 NYCRR 65-3.5(a),(b); 65-3.8; see, New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 (2d Dept. 2004). Accordingly, an issue of fact exists as to the timeliness of the denial.

As noted above, WMC’s attorney also claims that the denial itself is defective in that Taylor Care Center is named as the provider, and that the stated amount billed and amount in dispute varies from the plaintiff’s billing claim.

However, in a footnote found in Allstate’s opposing papers the discrepancy is explained as reflecting the initial hospital charges before an apparent audit by the plaintiff itself, which then sought the lower amount stated in its complaint. Further, the difference in facility name has been adequately addressed by Allstate’s proof that WMC and the Taylor Care Center are effectively one and the same for present purposes. Specifically, Tripp states in reply, and presents documentary proof, that the $37,560.01 check was accepted and deposited into the account of Westchester County Health Care Corporation, the same account where WMC’s checks are deposited. In addition, the Court notes that in stating the amount still due, WMC’s affiant acknowledges in his own moving affidavit that this payment reduced the total billed to the amount owed, making no distinction between the two entities.

Accordingly, the motion is denied.

The cross motion is granted. Allstate has presented prima facie proof that its coverage limits have been exhausted. This is supported by the statement of its claims representative, who states that the coverage available under its policy was $150,000, and that the balance sought in this action exceeds those limits. Allstate also presents a payment log document entitled Medical Bill-Loss History, introduced as a business record by Tripp, which indicates that Allstate paid a total $149,909.60 to various providers who cared for Correa, including plaintiff. Given the de minimus difference between the payments indicated in the Medical Bill-Loss history and the undisputed coverage limits, the foregoing constitutes sufficient proof that the defendant is not liable for the charges sought in this action, as they exceed Allstate’s maximum exposure under the policy. New York and Presby. Hosp. v Allstate Ins. Co., 28 AD3d 528 (2d Dept. 2006); see also, Mount Sinai Hosp. v Zurich Am. Ins. Co., 15 AD3d 550 (2d Dept. 2005); Hosp. for Joint Diseases v State Farm Mut. Auto. [*3]Ins. Co., 8 AD3d 533 (2d Dept. 2004); New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra. Indeed, it should be noted that an insurer’s defense that policy limits have been reached by payments to eligible providers cannot be waived by a issuing a denial, or making a part payment, beyond the periods established by the Insurance Law and its allied regulations. New York and Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 (2d Dept. 2004).

In response, the plaintiff has presented no evidence that would place in issue the foregoing proof of exhaustion of benefits as a complete defense to its claim. Its only argument of substance is that payment to other providers was made by Allstate after it received plaintiff’s bill on September 19, 2006, but Allstate was entitled to do so while withholding payment to the plaintiff in view of its timely issued request for verification. See, Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 (2d Dept. 2005). Accordingly, summary judgment is granted to the defendant on its cross motion.

This shall constitute the Decision and Order of this Court

E N T E R

Dated: October 22, 2007

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice

To:

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

[*1]

Supreme Court, Appellate Term, First Department, October 17, 2007

APPEARANCES OF COUNSEL

Votto, Cassata & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

{**17 Misc 3d at 98} OPINION OF THE COURT

Per Curiam.

Order, dated February 6, 2006, affirmed, with $10 costs.

In this action to recover first-party no-fault benefits, plaintiff medical provider was awarded summary judgment on its claims for payment for three MRIs performed on its assignor, following an automobile accident on November 27, 2003. The MRIs revealed injuries to the assignor’s neck, lower back and knee. It is uncontroverted that plaintiff’s claims were timely submitted. Nor is it disputed that defendant insurer issued NF-10 forms within 30 days, contending, as the sole reason for its denials, that the assignor’s injuries did not arise out of the subject automobile accident, a conclusion based exclusively on a written accident reconstruction report (referred to by defendant as a low-impact study). The study’s conclusion that the subject accident posed “no risk of injury” to some unknown “volunteer test subjects” was reached without any consideration of the assignor’s claimed injuries. The motion court granted summary judgment to plaintiff, holding that the low-impact study and the affidavit of the engineer who drafted the report, while admissible, did not suffice to raise triable issues of fact as to whether the assignor’s claimed injuries arose out of the accident.

As a general rule, expert opinion evidence based upon accident reconstruction studies is admissible in common-law negligence actions on issues related to causation. For example, in Valentine v Grossman (283 AD2d 571 [2001]), a negligence action, the testimony of a biomechanical engineer was found probative on the issue of whether an automobile accident was severe enough to have caused the injuries sustained by the plaintiff. The engineer’s opinion therein identified a specific injury, i.e., a herniated disc, and a correlation between the injury and the biomechanics of the accident. Here, by contrast, defendant’s low-impact study was conducted without a medical file review or an independent assessment of the assignor’s claimed injuries, if [*2]indeed they were known when the report was prepared. The only aspect of the report remotely bearing on any causation issue was the conclusory statement that the accident{**17 Misc 3d at 99} “posed virtually no risk of injury to voluntary test subjects.” The issue, therefore, is whether such a study is sufficient to deny summary judgment in a first-party no-fault action where plaintiff has made out a prima facie showing of entitlement to judgment.

In the typical negligence action, plaintiff’s burden of establishing causation is met by a showing that the accident was a proximate cause of the claimed injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). However, in an action to recover first-party no-fault benefits, a plaintiff bears no such burden and establishes his or her prima facie case by proof that the claim form was mailed and received, and that the insurer failed to pay within the 30-day statutory period (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In essence, causation is presumed since “it would not be reasonable to insist that a [medical provider] must prove as a threshold matter that its patient’s condition was ’caused’ by the automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 20 [1999]). Thus, the burden is on the defendant insurer to come forward with proof establishing by “fact or founded belief” its defense that the claimed injuries have no nexus to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While generally speaking, accident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries. This is certainly true in the first-party no-fault scenario, where an insurer disclaiming coverage has the burden of establishing that “the medical condition for which the assignor was treated was not related to the accident at all” (Mount Sinai v Triboro Coach, 263 AD2d at 18-19 [internal quotation marks omitted]). Whether a causative nexus exists between an accident and injury “cannot be resolved without recourse to the medical facts” (id. at 19).

Here, defendant offered no medical evidence whatsoever to demonstrate a lack of causation. It failed to perform a medical examination of plaintiff’s assignor or conduct a peer review of his medical treatment in the aftermath of the accident. Absent from defendant’s denial forms was any allegation that the MRIs were not medically necessary or that plaintiff’s assignor was not injured as described in the MRI reports. Nor did defendant rely on any evidence of an event or ongoing chronic condition in the{**17 Misc 3d at 100} assignor’s past medical history to explain his injuries. Significantly, the low-impact study specifically contains a disclaimer that the engineering consulting firm which produced the report “did not perform a medical file review or an assessment of injuries alleged by [the assignor].”

Defendant’s low-impact study contains a “one size fits all,” generalized “medical” component, which does not explain how the assignor’s injuries are causally incompatible with the subject accident. As the concurring opinion correctly points out, the author of the low-impact study, in the absence of a medical review of plaintiff’s injuries, had no way of knowing whether “the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion” (concurring op at 174).

It bears mention that the low-impact study here under review appears to have been ordered five days before the defendant insurer acknowledged having received the claims for the MRIs. Why an insurer would incur the expense of an accident reconstruction to eliminate an [*3]accident as a cause of injuries before receiving a diagnosis is yet to be explained by defendant. We acknowledge that the no-fault statute, together with the rules and regulations promulgated thereunder, do not distinguish between diagnostic testing and treatment with respect to the denial grounds available to an insurer. However, the purpose of the statutory scheme, to streamline the processing of claims for basic economic loss arising from automobile accidents, necessarily would be frustrated if an insurer could deny reimbursement to a medical provider who performs appropriate diagnostic tests in response to a patient’s complaints, based solely upon a generic brand of accident reconstruction which gives no consideration to the patient’s diagnosis or injuries.

We do not say that there can never be a situation where a low-impact study, standing alone, would suffice to create an issue of fact on causation in a first-party no-fault benefit case. Such a situation might be presented, for example, where an assignor has sustained an identifiable injury, the cause of which is so clearly unrelated to the biomechanics of the accident as to require no corroborative medical proof or where the assignor has not sustained any injury. Such is not the case here.

Finally, the concurring opinion raises an issue neither briefed by the parties nor central to the proper resolution of this case, in taking exception with our (and the motion court’s) description of the defense sought to be raised by the low-impact study{**17 Misc 3d at 101} as a lack of coverage defense, reserving that description for injuries which “predated the accident” (concurring op at 105). Instead, the concurrence would characterize the defense advanced by the insurer, i.e., that the subject injuries were unrelated to the accident, as “a disclaimer based on the breach of a policy condition.” We disagree.

Citing as a source for guidance its previous holdings in Albert J. Schiff Assoc. v Flack (51 NY2d 692 [1980]) and Zappone v Home Ins. Co. (55 NY2d 131 [1982]), the Court of Appeals in Chubb (90 NY2d at 201), characterized as a “coverage matter” medical services rendered to treat injuries that did not arise from a covered accident, reasoning that there was no “insurance in effect” to cover such treatment. This is so whether the uncovered injuries occurred before or after the subject accident, because, simply put, the incident which caused the injuries did not fall within the four corners of the policy. Thus, unlike our concurring colleague, we find no basis to limit the applicability of a lack of coverage defense solely to cases involving “a previous injury or condition” (concurring op at 107).

McCooe, J. (concurring). The majority opinion raises two issues common to numerous first-party no-fault benefit actions, the admissibility of a “low-impact study” and the scope of a Chubb no coverage defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Since there may be a disagreement with this court and the Appellate Term, Second and Eleventh Judicial Districts, on the first issue and there is a disagreement with both on the second issue, I am writing separately to state my opinion.

First, since the low-impact study is being rejected as a defense in this summary judgment [*4]motion as a matter of law, I will accept as true the statement of facts relied upon by defendant’s expert, Alfred Cipriani, employed by SEA and the procedures adopted in his project summary which reads in pertinent part:

“I. PROJECT SUMMARY

“PROJECT ASSIGNMENT

“On January 21, 2004, SEA, Ltd. (SEA) was asked to review file material related to a two-vehicle accident that occurred on November 27, 2003, in Bronx, New York. At approximately 6:50 a.m., Mr. Mahamdou Hydara, driving a 1999 Ford Explorer (Ford) owned by Mr. Sulayman Kamara, was traveling southbound on Throgs Neck Expressway, approaching{**17 Misc 3d at 102} the Throgs Neck Bridge toll plaza. A 1991 Volkswagen Jetta (Volkswagen), driven by Ms. Theresa Marone, changed lanes and struck the driver’s side of Mr. Hydara’s Ford. As a result of the impact to his vehicle, Mr. Hydara was allegedly injured. This investigation was assigned to the direction of SEA Technical Consultant/Accident Reconstructionist Alfred L. Cipriani, ACTAR, as SEA Project No. 603622.

“SCOPE OF PROJECT

“Specifically, SEA was asked to consult with respect to this accident, to determine the Ford’s average accelerations, and to compare those results with published crash test studies.

“CONCLUSIONS

“º The average rearward acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 milliseconds (msec) during the collision of November 27, 2003.

“º The average left-to-right acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 msec during the collision of November 27, 2003.

“º The cited scientific research shows that the average accelerations of Mr. Hydara’s Ford posed virtually no risk of injury to volunteer test subjects.

“II. PROCEDURES

“1. SEA reviewed file material related to this accident including:

Ҽ Police Accident Report (NYC) # 3641

Ҽ Report of Motor Vehicle Accident completed by Mr. Hydara

“º Insured’s Supplementary Accident Report completed by Mr. Hydara

Ҽ A repair estimate for the Ford

Ҽ A prior damage estimate for the Ford

Ҽ A description of the accident

Ҽ Four color photocopied photographs of the Ford

Ҽ A copy of the written statement of Mr. Hydara

Ҽ A copy of the written statement of Mr. Kamara

“2. SEA researched specifications and crash test data for the vehicles involved in this accident.

“3. SEA calculated crush stiffness coefficients for{**17 Misc 3d at 103} the vehicles involved in this accident.

“4. SEA performed a low speed impact analysis^[FN1]

“5. SEA reviewed published volunteer test studies involving low speed impacts.”

Cipriani also relied upon Hydara’s statement of facts regarding the accident. The police report indicates that the “cost of repairs to any one vehicle will be more than $1000.00.”

The “Methods of Analysis” is an “engineering analysis of low-speed impacts, depending on the nature of the impact.” There are four types of impacts referred to: bumper to bumper, override and underride, lateral impacts, and sideswipes. While it states that “SEA engineers chose an engineering analysis method most appropriate for the type of impact being studied,” after carefully reviewing the facts, it is not stated which type they are relying on, but I assume it is “lateral impacts” where “it is important to determine the side stiffness for the appropriate vehicle” and “average lateral acceleration must also be reduced by an amount equivalent to the sideways sliding resistence of the vehicle tires.”

Finally the “Signatures” page states that: “SEA did not perform a medical file review or an assessment of injuries alleged by Mr. Hydara. SEA hereby certifies the expressed opinions and conclusions have been formulated within a reasonable degree of professional certainty.”

The Appellate Term, Second and Eleventh Judicial Districts, has held that a low-impact study may constitute a proper basis for denial of a summary judgment motion provided it is in admissible form^[FN2] (see AB Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists 2006]). It relied on Appellate Division analysis in determining that an accident analysis report is relevant to the issue of causation (see Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists 2005], [*5]citing Valentine v Grossman, 283 AD2d 571 [2d Dept 2001]). Furthermore, referring to the coverage defense, a low-impact study has been found to be “sufficient to demonstrate{**17 Misc 3d at 104} that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident’ ” (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525[U],*2 [2005],^[FN3] quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

The first issue here is whether Cipriani’s affidavit, together with the low-impact study report, were sufficient to raise an issue of fact to defeat plaintiff’s motion for summary judgment. After analyzing the police report, repair estimates, written statements made by the drivers, and photographs of the Ford, Cipriani opined that the “average acceleration of [assignor’s] Ford posed virtually no risk of injury to volunteer test subjects.” There is no indication that he factored in the Ford striking the toll booth barrier as affecting the “average acceleration.” He did not (1) calculate the forces generated by the accident, (2) correlate the forces to the injuries allegedly sustained by the plaintiff nor (3) conclude that there was not enough force generated in the collision to cause said injuries (cf. Valentine v Grossman, 283 AD2d at 572 [biomechanical experts correlated the forces generated by the collision to the injuries allegedly sustained by the injured plaintiff and opined that there was not enough force generated to cause said injuries]).

The low-impact study report states that neither a medical file review nor an assessment of the injuries alleged by the plaintiff was performed and did not indicate whether the plaintiff was wearing a seat belt. Therefore he did not know if the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion. This distinguishes Valentine v Grossman (283 AD2d 571 [2001]), where the expert rendered an opinion as to whether there was sufficient force to cause a herniated disc.

Cipriani’s study is general and not specific to the plaintiff but to “volunteer test subjects” whose age and state of health is not indicated so as to form a proper basis for comparison. The report does not and could not explain how the low-impact test results demonstrated that the unknown plaintiff’s injuries were unrelated to the subject accident. While Cipriani opined that the acceleration of the plaintiff’s vehicle “posed virtually no risk of injury,” he did not give an opinion as to whether this particular accident caused the injuries allegedly sustained by the plaintiff.{**17 Misc 3d at 105} Therefore the study was too vague and conclusory to raise a triable issue of fact or to support the defendant’s conclusion that the accident was not severe enough to have caused the injuries allegedly sustained (see Bender v Gross, 33 AD3d 417 [1st Dept 2006]; Maggiotta v Walsh, 306 AD2d 447 [2d Dept 2003] [vague and conclusory expert affidavit submitted in opposition to summary judgment motion failed to raise a triable issue of fact regarding causation]).

The second issue is whether the defense raised is properly a lack of coverage defense as discussed in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) or a disclaimer based on the breach of a policy condition. I disagree with the majority and the Appellate Term, Second and Eleventh Judicial Districts, that it is a lack of coverage defense. Furthermore it should not be an issue here since neither the Civil Court nor the parties contend that it is. This should explain why the “description of the defense . . . as a lack of coverage defense” (majority op at100-101) first raised by the majority was not briefed. The defendant timely filed three denial of claim forms within the [*6]30-day rules and regulation period which read in part: “the results of a low-impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of 11/27/2003 and are inconsistent with a collision of this nature . . . .”

Nevertheless, since the majority agrees with the Appellate Term, Second and Eleventh Judicial Districts, on this issue, I will explain the reasons for my disagreement. The principal reason is that the “exceptional exemption” granted in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) when the insurer fails to timely disclaim should be limited to factual situations where the defense is that the injuries predated the accident in order to find that they were “causally unrelated to the accident.”

The relevant portion of the decision in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (7 Misc 3d 129[A], 2005 NY Slip Op 50525[U],*1-2 [2005]) reads:

“Inasmuch as defendant failed to pay or deny the claim within the 30-day [prescribed] period [11 NYCRR 65-3.8(c), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b])], it [was] precluded from raising most defenses{**17 Misc 3d at 106} (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant [was] not precluded from asserting the defense that the alleged injuries were . . . causally [un]related to the accident [despite the untimely denial of the claim] (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The ‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’ [accompanied by an affidavit] of the Technical Consultant/Accident Reconstructionist who prepared the report . . . was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident‘ (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199 . . . ). [Accordingly], since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment [should not have been granted and the matter is remanded for further proceedings].” (Emphasis added.)

The Ocean case clearly expresses the legal issues under discussion. The two cases relied upon in Ocean are Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

I agree that the Ocean case cites the applicable law but I disagree with the interpretation and that they are factually similar to Ocean or this case. They are both factually dissimilar because both defendants in the cited cases claimed that there was no coverage because the claimed injury predated the accident. The defendant in Chubb successfully claimed that the “injuries were sustained in a separate work-related accident about a year prior to the automobile accident” and the Court found that the untimely disclaimer was an “exceptional exemption” that did not prevent the defendant from raising the lack of coverage defense because the injury was unrelated to the accident (Chubb, 90 NY2d at 198). [*7]

The defendant in Mount Sinai unsuccessfully claimed that the plaintiff’s condition was entirely unrelated to the accident because she “had previously suffered from an unspecified ‘brain disorder . . . manifested by seizures and hospitalizations’ ” and her condition was not incurred in the accident (Mount Sinai,{**17 Misc 3d at 107} 263 AD2d at 14). The Court held that the “exceptional exemption” from preclusion for failure to timely disclaim “applies only where the medical condition for which the patient was treated was not ‘related to the accident at all’ ” (Mount Sinai, 263 AD2d at 18-19). The Court goes on to state that the issue cannot be resolved without resort to the medical facts and that the “defendant has the burden to come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its belief]’ that the patient’s treatment was unrelated to his or her automobile accident” (Mount Sinai, 263 AD2d at 19-20). Speaking as to the need for medical proof, the Court goes on to state, “Indeed, this case is a vivid illustration of why an expert’s affidavit will usually be necessary to effectively establish the basis of an insurer’s founded belief” (Mount Sinai, 263 AD2d at 20).

Based upon the foregoing, I disagree that a “low-impact study” can be the basis for a “founded belief” that the alleged injuries are “not related to the accident at all” and form the basis for a lack of coverage defense. This “exceptional exemption” first spelled out in Chubb and later in Mount Sinai only applies where the defendant comes forward with medical proof for its founded belief that the medical treatment was not related to the accident at all “but to a previous injury or condition.”

The overly broad characterization of a breach of policy condition or policy exclusion as a coverage defense nullifies the 30-day disclaimer rule.

McKeon, P.J., and Schoenfeld, J., concur; McCooe, J., concurs in a separate opinion.

Footnotes

Footnote 1: A. Toor et al., Practical Analysis Technique for Quantifying Sideswipe Collisions, SAE Paper 1999-01-0094, 1999.

Footnote 2: The Civil Court determined that Mr. Cipriani’s affidavit, which referenced and attached the low-impact study report, was in admissible form and plaintiff does not challenge this finding or the admissibility of the report.

Footnote 3: The Ocean case will be discussed in greater detail on the coverage issue.

[*1]

Supreme Court, Kings County, September 24, 2007

APPEARANCES OF COUNSEL

Mitchell N. Kaye P.C. (Craig DeMeo of counsel), for Wilda Norgaisse and others, defendants. Picciano & Scahill, P.C. (Mary Ann Candelario-Jones of counsel), for Marie Mirville, defendant. McDonnel & Adels, P.C. (Robert J. Schwerdt of counsel), for plaintiff.

{**17 Misc 3d at 601} OPINION OF THE COURT

Francois A. Rivera, J.

By order to show cause dated May 11, 2007, defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure (hereinafter defendant movants)^[FN*] jointly move this court pursuant to CPLR 5003-a for an order directing that plaintiff State Farm Mutual Automobile Insurance Company pay defendant, Wilda Norgaisse, the amount of $25,000 plus interest from September 29, 2005 in accordance with their stipulation of settlement. Plaintiff opposes the order to show cause.

On June 29, 2006, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office (KCC). The complaint consists of 68 allegations of fact in support of four causes of action for declaratory judgment. Plaintiff alleges the defendants attempted to defraud plaintiff by staging an accident. As a result of the fraud, plaintiff alleges it is entitled to a declaration that its policy with defendant Marie Mirville is null and void and that it has no duty to provide coverage under the policy for any claims for personal injury, no-fault benefits, or uninsured motorist benefits made by or in behalf of any person or entity.

Defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure joined issue by their verified answer, filed on May 11, 2007 with the KCC. The answer contained four affirmative defenses and no counterclaims.

Undisputed Facts

The following facts are undisputed. On or about September 26, 2004, State Farm issued a policy, No. 109 96060-c26-32, for a 1996 Hyundai Sonata to Marie Mirville, 28 Dewitt Place, [*2]No. 1, New Rochelle, New York, 10801; said policy affording minimum liability limits of $25,000/$50,000.

Said policy was purchased by State Farm’s insured, Marie Mirville, from a broker named John W. Goon, 4512 Church Avenue, Brooklyn, New York, 11203. On November 9, 2004, approximately six weeks after the issuance of said policy, State Farm’s insured, Marie Mirville, while operating the insured{**17 Misc 3d at 602} Hyundai, was involved in an automobile collision at Rogers Avenue and Linden Boulevard within the confines of the 67th Precinct in Kings County.

In relation to this collision, a claim was made against the aforesaid policy by Marie Mirville. Said claim lists injuries to the driver of the adverse vehicle, Barry Mamadou, and the claimants, Wilda Norgaisse, and Alonzo Colbert.

On or about September 29, 2005, a release was executed by the claimant Wilda Norgaisse and forwarded to State Farm the following day. Predicated upon this release and prior to the commencement of any action, State Farm issued a check, dated October 18, 2005, in the name of their insured, Marie Mirville, in connection with the underlying loss of November 9, 2004, payable to Wilda Norgaisse, in the amount of $25,000.

On or about October 20, 2005, State Farm stopped payment on the aforesaid check. State Farm alleges that after conducting an investigation, it believes the underlying accident was staged and that it is therefore entitled to disclaim coverage.

Defendants bring this order to show cause requesting that the court order State Farm to honor its settlement agreement and pay Wilda Norgaisse $25,000 plus interest retroactive to September 29, 2005, the date she executed the release.

Motion Papers

Defendant movants’ order to show cause consists of an affirmation of their counsel, Patrick J. McGrath, and seven annexed exhibits. Exhibit A is a New York City Police Department accident report (MV-104AN) of the November 9, 2004 collision. Exhibit B is a release signed by defendant Wilda Norgaisse, releasing and discharging codefendant Marie Mirville from all actions for personal injury related to the November 9, 2004 collision. Exhibit C is a check dated October 18, 2005 from State Farm to Wilda Norgaisse in the amount of $25,000. Exhibits D and E are the summons and complaint and verified answer in an earlier action brought by the movants against Marie Mirville in Kings County Supreme Court under index number 34455/05. Exhibits F and G are the summons, complaint and verified answer of the instant underlying action.

Plaintiff’s affirmation in opposition consists of an affirmation of its counsel, Robert Schwerdt, and 13 annexed exhibits. Exhibit A is Marie Mirville’s policy declarations. Exhibit B is the same MV-104AN annexed in the movants’ paper as exhibit A. Exhibit C is State Farm’s auto claim service record of the{**17 Misc 3d at 603} November 9, 2004 collision. Exhibit D is a copy of the same check annexed in the movants’ papers as exhibit C. Exhibits E and F are affidavits signed on March 24, 2006 from State Farm investigators Grace Peters and Maria Castaneda. Exhibit G is a letter, dated February 14, 2006, from Thomas Mansfield, an investigator for New York Automobile Insurance Plan (NYAIP) to Robert Murray, a coordinator for NYAIP. Exhibit H is an Internet search result using the name Marie Mirville. Exhibit I is an Internet search result using the name Wilda Norgaisse. Exhibits J and K are MV-104ANs of automobile collisions that occurred on August 31, and October 16, 2004. Exhibit L is a letter, dated November 1, 2005, from Peter Crescenti, president of International Claims Service and Investigations, Inc. to Grace [*3]Peters, a State Farm investigator followed by a copy of the MV-104AN of the November 9, 2004 collision. Exhibit M is an MV-104AN of an automobile collision that occurred on December 14, 2004.

Defendant movants submitted an affirmation of their counsel in reply to plaintiff’s opposition papers.

Law and Application

There are two specific statutes dealing with enforcement of agreements that should be analyzed in connection with the instant motion, namely, CPLR 2104 and 5003-a. In simple terms, defendant movants seek specific performance of a settlement agreement via the procedural vehicle of an order to show cause and the substantive law of CPLR 5003-a. Defendant movants’ counsel concedes the inapplicability of CPLR 2104 to their motion but argues that CPLR 5003-a does apply and may be extended to authorize the relief they seek.

CPLR 2104 provides as follows:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.”

The Court of Appeals has made a strong statement that the formalities of CPLR 2104 must be met as a prerequisite to{**17 Misc 3d at 604} judicial enforcement of out-of-court stipulations of settlement (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281 [2004]; see generally, Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2104:2, at 761-764). Unless a stipulation of settlement complies with CPLR 2104, it is not enforceable as a stipulation. As both plaintiff and defendant movants have stated in their affidavits, there was no pending action at the time of the agreement to settle.

“CPLR 2104 refers to ‘parties’ and ‘matter[s] in an action’ . . . Before the actual service of a summons there is no action, and the disputants have not yet become parties to one. The CPLR itself is intended to ‘govern the procedure in civil judicial proceedings’ . . . Neither the CPLR in general nor section 2104 in particular have application to the conduct of prospective litigants before a proceeding commences” (Cohen v Coleman, 110 Misc 2d 419, 422 [Sup Ct, Queens County 1981]).

As previously mentioned, when State Farm issued a check to Wilda Norgaisse, they were not parties to any action. Defendant movants argue that notwithstanding the strict statutory language which limits applicability of CPLR 5003-a to actions already commenced, the force and intent of the statute is to promote prompt payment of settlement agreements. They contend that this impetus should be sufficient to authorize judicial enforcement of agreements made prior to commencement of an action.

CPLR 5003-a (a) states in relevant part:

“When an action to recover damages has been settled, any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.”

Before 1992, the law imposed no general time limit within which the sum agreed to in the settlement of an action had to be paid. Effective June 30 of 1992, CPLR 5003-a enacted a time limit (L 1992, ch 269). The consequence of not paying the stated amount of the settlement on time is that costs and disbursements will now be added to it, along with interest. If the settlement is substantial, the interest can quickly become so, too. Furthermore, the judgment may be entered with no further notice to the defendant. The purpose of CPLR 5003-a is to encourage{**17 Misc 3d at 605} prompt payment of settlements by having defendants face not only the prospect of additional costs by their tardiness but also the entry of judgment against them without an opportunity to be heard (see generally David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5003-a, at 121-123).

The court, however, may not stray from the unequivocal statutory constraints expressed in CPLR 5003-a. The CPLR itself, and CPLR 5003-a in particular, applies to actions. It may not be invoked to seek judicial enforcement of an agreement made before an action commences. Therefore CPLR 5003-a and 2104 are inapposite to the instant motion for the exact same reason.

It is noted that the defendant movants did not plead a counterclaim alleging breach of the agreement or demanding specific performance of the agreement. In the absence of a cause of action for breach of contract seeking specific performance, defendant movants may lose the opportunity to ever obtain the remedy they seek. The court does not and will not deem the instant order to show cause to be a summary judgment motion pursuant to CPLR 3212. Defendant movants are not precluded from seeking leave of the court to amend their answer to include such a claim and then moving for summary judgment thereafter. However, judicial enforcement of the stipulation by the instant order to show cause is denied.

Footnotes

Footnote *: Defendant movants’ counsel in the first paragraph of his affirmation states that he is the attorney for Wilda Norgaisse, Alonzo Colbert, and Alex Cheure. However, in the second paragraph he advises that these three defendants as well as Marie Mirville affirm through counsel their support of the motion. The court deems the inference that Marie Mirville is one of the movants to be an error and will disregard it pursuant to CPLR 2001.

[*1]

Supreme Court, Appellate Term, Second Department, September 14, 2007

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for appellant. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**17 Misc 3d at 41} OPINION OF THE COURT

Memorandum.

{**17 Misc 3d at 42}Order affirmed without costs and, upon searching the record, summary judgment granted to defendant dismissing plaintiff’s cause of action with respect to those portions of plaintiff’s claims seeking reimbursement of the unpaid balance of 23 acupuncture sessions conducted between February 9 and April 4, 2004.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). While defendant asserted that plaintiff did not prove a prima facie case because plaintiff, a provider of acupuncture services performed by a licensed acupuncturist, did not demonstrate that the fees it charged were within the prevailing fees for acupuncture services performed by a licensed acupuncturist in plaintiff’s geographic location (see 11 NYCRR 68.5 [b]), such contention lacks merit since plaintiff’s prima facie case does not require such a showing. Accordingly, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to plaintiff’s motion for summary judgment, which sought to recover on four claims submitted to defendant with respect to 30 sessions of acupuncture performed from February 9 through May 12, 2004, defendant sufficiently demonstrated that it timely mailed the [*2]denial of claim forms at issue based upon its standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff was not entitled to summary judgment on the claims pertaining to the seven sessions of acupuncture conducted from April 7 through May 12, 2004, which were denied based upon the results of an independent medical examination, since defendant’s papers were sufficient to demonstrate the existence of an issue of fact with respect to defendant’s defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

Defendant’s opposing papers also demonstrated that defendant denied reimbursement for the unpaid balance of the remaining 23 acupuncture sessions conducted between February 9 and April 4, 2004 on the ground that the fees charged by{**17 Misc 3d at 43} plaintiff exceeded the “maximum allowance under the applicable fee schedule[s].” We agree that it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount to which plaintiff was entitled upon the subject 23 sessions (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, there is no merit to plaintiff’s assertion that because the fees charged were reasonable and were within the range of prevailing fees for licensed acupuncturists in the geographic area in which plaintiff operated, defendant should have paid the entire amount for these 23 sessions (id.; see also Ops Gen Counsel NY Ins Dept, No. 04-10-03 [Oct. 2004]).

Further, since it is undisputed that defendant has fully paid plaintiff $673.90 for the 23 acupuncture sessions, the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing plaintiff’s cause of action to the extent that it seeks additional reimbursement for the 23 acupuncture sessions (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Rios, J. (concurring in the result in the following memorandum). I am constrained to concur based upon the majority holding in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., and Belen, J., concur; Rios, J., concurs in a separate memorandum.