[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn, for respondent.

{**15 Misc 3d at 111} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied without prejudice to renewal upon completion of discovery, and defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant’s demand for written interrogatories and, within 30 days after service of such responses, to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant served opposing papers and subsequently moved to dismiss the complaint based on plaintiff’s failure to respond to discovery demands or, in the alternative, for an order compelling plaintiff to comply with its discovery demands. The court granted plaintiff’s motion and denied defendant’s motion. The instant appeal by defendant ensued. [*2]

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of ‘basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed is a nonwaivable defense (see First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; see also Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d Dept 2006]). Defendant’s opposition papers suffice to raise issues as to who really operated and controlled plaintiff (see Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d Dept 2006]). Since{**15 Misc 3d at 112} the opposition papers set forth that facts essential to justify opposition may exist but cannot be stated (see CPLR 3212 [f]), plaintiff’s motion for summary judgment should have been denied without prejudice to renewal upon the completion of discovery.

With respect to defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery, plaintiff failed to oppose said motion. Accordingly, defendant’s motion should have been granted to the extent of compelling plaintiff to serve responses to defendant’s demand for written interrogatories and to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

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

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment predicated on the lack of coverage, i.e., that the assignor’s injuries, if any, did not arise from the underlying traffic incident, and, if they did, the incident was staged to defraud defendant. After the court (Norman Janowitz, J.) denied defendant’s motion, plaintiff then moved for summary judgment, which defendant opposed essentially on the same proof of fraud submitted in support of its own motion. The court (Erica L. Prager, J.) declined to review defendant’s proof of fraud on the ground that the prior determination, that the proof did not support defendant’s motion, was the law of the case. The court granted plaintiff’s motion and this appeal ensued.

Contrary to the determination of the court below, the prior order which denied defendant’s motion for summary judgment did not bar reconsideration of defendant’s proof of fraud in opposition to plaintiff’s motion, since the quantum of proof needed to obtain summary judgment is higher than that necessary to establish a triable issue of material fact in opposition to such a motion (e.g. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Stone v Goodson, 8 NY2d 8, 12 [1960]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]). [*2]

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit of defendant’s special investigator and the attached exhibits failed to substantiate the investigator’s conclusory allegations of the insured’s participation in a “ring” that stages traffic incidents to defraud insurers (see Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [2005], supra). In addition, the discrepancies in the testimony{**15 Misc 3d at 99} given by two passengers during their examinations under oath were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]).

We note that the insured had no obligation to appear for an examination under oath because “at the applicable time, the insurance regulations contained no authorization for examinations under oath” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1 [App Term, 2d & 11th Jud Dists 2004]). In such circumstances, the mere failure to appear for such an examination does not support an inference of “the fact or founded belief” that the underlying incident was staged to defraud.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, March 16, 2007

APPEARANCES OF COUNSEL

Friedman, Harfenist, Langer & Kraut, Lake Success (Neil Torczyner of counsel), for appellant.

{**16 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action as premature due to outstanding requests for verification. The court granted defendant’s cross motion and this appeal by plaintiff ensued.

After receiving the claim, defendant issued a letter to the prescribing physician requesting verification of the medical necessity of the MRI performed at plaintiff’s facility and detailing the information sought. On the same day, defendant advised plaintiff by letter that the claim’s determination would be delayed pending receipt of medical necessity verification from the prescribing physician. The initial verification request remained unsatisfied after 30 days, whereupon defendant followed up its request to the prescribing physician and sent plaintiff a copy of the request and a second letter, nearly identical to the first, to the effect that a decision on [*2]the claim was being delayed pending medical necessity verification. Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. Contrary to plaintiff’s contention, the record establishes that the letters sent by defendant sufficed to toll the statutory claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.2 [c]; 65-3.5 [a], [c]; 65-3.6 [b]).

The insurance regulations require that there be “good reasons” to demand verification (11 NYCRR 65-3.2 [c]), that the demand be directed “as expeditiously as possible” (id.) to the “parties required to complete them” (11 NYCRR 65-3.5 [a]), and that the insurer is entitled to receive the verification “directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]). We do not construe the reference to “parties” to be limited to an applicant for no-fault benefits. By its terms, 11 NYCRR 65-3.6 (b) requires the insurer to inform the “applicant” of the nature of previously requested and unproduced verification, the identity of “the party from whom it was requested,” and that the request is renewed. The provisions clearly contemplate that an applicant may not be the only appropriate “party” from whom, for example, medical necessity verification may most readily be obtained (e.g. a medical{**16 Misc 3d at 44} equipment provider who fills a prescription or, as here, an MRI facility acting upon an outside physician’s referral). Where verification is sought from a party other than the applicant, the applicant is entitled to be timely informed of the nature of the verification sought and from whom it is requested when, after an initial verification request remains unsatisfied, a follow-up request is necessary (see 11 NYCRR 65-3.6 [b]). As the claims of providers, such as MRI facilities, are subject to the medical necessity defense (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2d Dept 2007]) notwithstanding that they may neither be responsible for the medical necessity determination nor, in the case of a nonphysician provider, competent to make such a determination, permitting verification requests of nonapplicants upon proper notification to the applicants furthers the regulatory objective that verification proceed “as expeditiously as possible” and assists applicants to determine the propriety of verification demands, to monitor the insurer’s exercise of the verification procedures and to facilitate the timely production of the verification. Accordingly, because defendant established that the instant verification requests remain unsatisfied, the action is premature and was properly dismissed (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, June 4, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

{**16 Misc 3d at 21} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, inter alia, on the ground that defendant’s NF-10 denial of claim form, which alleged the lack of medical necessity, failed to assert sufficient facts and a medical rationale based thereon to set forth, with the requisite specificity, a proper ground for the denial. The court denied the motion, finding the denial form’s reference to a negative peer review report sufficient to apprise plaintiff of the basis of its determination that the medical services provided were medically unnecessary. Plaintiff appeals, and we affirm (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2d Dept 2007]). To the extent that A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) and related cases are to the contrary, they should no longer be followed (see 11 NYCRR 65-3.8 [b] [4]).

Pesce, P.J., Golia and Rios, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, February 27, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Anthony J. Centone, P.C., White Plains, for respondent.

{**15 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). Defendant’s opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff [*2]was therefore entitled to summary judgment.

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston Patterson, J. (dissenting and voting to affirm the order in the following memorandum). I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a{**15 Misc 3d at 35} matter of law. In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer Charles DeMarco. Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed. Instead, the affidavit alleges that the “attached are my corporate business records for billing and are true copies of the no-fault claim.” In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50023[U] [App Term, 2d & 11th Jud Dists 2007]).

The fact that defendant raised no issue below or on appeal with respect to plaintiff’s prima facie showing is irrelevant. A movant’s failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

Pesce, P.J., and Belen, J., concur; Weston Patterson, J., dissents in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, February 6, 2007

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata, & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**15 Misc 3d at 14} OPINION OF THE COURT

Memorandum.

Order reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). Plaintiff opposed the motion, arguing, inter alia, that defendant failed to adequately prove mailing of the IME requests. Although the court below found that defendant offered sufficient proof of having mailed timely IME requests and follow-up requests, it denied defendant’s motion on the ground that there was an issue of fact as to the reason for plaintiff’s assignor’s nonappearances. This appeal by defendant ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 722 [2d Dept 2006]), the Appellate Division held that “[t]he appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy,” and that the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) requires the “eligible injured person . . . [to] submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Defendant contends that it was entitled to summary judgment dismissing the action [*2]because the affidavits which it submitted in support of its motion established that it sent a timely IME request and follow-up request to plaintiff’s assignor, and that plaintiff’s assignor failed to appear for the IMEs. Plaintiff argues that defendant was not entitled to summary judgment because, among other things, the affidavits submitted by defendant were insufficient to demonstrate timely mailing of said IME requests.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]). Since plaintiff raised no issue as to the sufficiency of defendant’s proof of plaintiff’s assignor’s{**15 Misc 3d at 15} nonappearance at the IMEs, we do not pass on the propriety of the motion court’s determination with respect thereto. To the extent that the court below concluded that there was a question of fact regarding the reason for plaintiff’s assignor’s nonappearance at the IMEs, we note that there is no support in the record for such finding. Accordingly, defendant was entitled to summary judgment dismissing the complaint.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, January 3, 2007

APPEARANCES OF COUNSEL

Saiber Schlesinger Satz & Goldstein, LLC, New York City (Agnes I. Rymer and David J. D’Aloia of counsel), and McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman P.C., Brooklyn, for respondent. Eliot Spitzer, Attorney General, New York City (Robert H. Easton and Benjamin N. Gutman of counsel), for Howard B. Mills III, amicus curiae. Michael A. Taromina, Paterson, New Jersey, for Acupuncture Society of New York, amicus curiae.

{**15 Misc 3d at 105} OPINION OF THE COURT

Memorandum.

Order reversed without costs and matter remanded to the court below for a new calculation of interest in accordance with the decision herein.

In this action to recover overdue assigned first-party no-fault benefits, the parties stipulated to settle the principal amount owed on all claims for which defendant’s denials were timely and for which defendant issued no denials, as well as the statutory interest and attorney’s fees due thereon. Unable to agree on the date interest accrued on the claims for which defendant issued untimely denials, the parties stipulated to submit the question to the court below. The plaintiff sought interest from 30 days after the claims’ submission, while defendant insisted that interest accrued only from the date plaintiff commenced the action. The court found for plaintiff and defendant appeals.

An insurer is obligated to “pay or deny” a claim within 30 calendar days of the receipt of [*2]proof of claim (11 NYCRR 65-3.8 [c]).^[FN*] Interest accrues when the payment of no-fault benefits is “overdue” (11 NYCRR 65-3.9 [a]), and benefits are overdue only if not “paid” within 30 calendar days of when the insurer receives a claim or verification (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]; e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see generally 70A NY Jur 2d, Insurance § 1801). The effect of a denial on interest is set forth in 11 NYCRR 65-3.9 (c) which{**15 Misc 3d at 106} states that an “applicant” must request arbitration or commence an action “within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations” and bars interest “until such action is taken.”

“[I]nterest . . . [is a] prescribed sanction[ ] only in late payment circumstances, not as to untimely denials of claims” (Presbyterian Hosp. in City of N.Y., 90 NY2d at 278; see Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339 [1994]). Where, as here, there is no payment and an untimely denial, interest accrues 30 days from the date the claim is submitted (11 NYCRR 65-3.8 [a] [1]; 65-3.9 [a]; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). Interest is thereafter stayed only where the claimant fails to submit the claim to arbitration or to commence an action within 30 days after receipt of the untimely denial of claim and resumes when either action is taken (11 NYCRR 65-3.9 [c]; Massapequa Gen. Hosp. v Travelers Ins. Co., 104 AD2d 638, 640 [1984]; State Farm Mut. Auto. Ins. Co. v Pfeiffer, 95 AD2d 806 [1983]).

Noting that 11 NYCRR 65-3.9 (a) addresses both “applicant” and “assignee,” the court below construed the absence of a reference to an assignee in 11 NYCRR 65-3.9 (c) to manifest the intent of the Superintendent of Insurance to exclude assignees from the requirement that an “applicant” seek arbitration or commence an action within 30 days of the receipt of the denial of claim form or be barred from interest “until such action is taken.” However, in an amicus brief, the Superintendent states that in promulgating 11 NYCRR 65-3.9 (c), the Department of Insurance had no intent to distinguish eligible injured persons from their assignees when it provided that interest on denied claims is tolled until the “applicant” seeks arbitration or commences an action, notwithstanding what it characterizes as a “redundant” reference to assignees in 11 NYCRR 65-3.9 (a). “In matters of statutory and regulatory interpretation . . . legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]” (Matter of ATM One v Landaverde, 2 NY3d 472, 476-477 [2004] [internal quotation marks omitted]). As the Legislature granted the Superintendent “broad power to interpret, clarify, and implement the legislative policy” in the no-fault arena (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003] [internal quotation marks omitted]; see Insurance Law §§ 301, 5103 [d]; § 5106 [a]; § 5108 [b]),{**15 Misc 3d at 107} when the Superintendent “properly craft[s] a rule within the scope of his [or her] authority, that rule has the force of law and represents the policy choice of this State” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]). Further, an agency’s interpretation of a regulation it promulgated “is entitled to deference” (Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337, 342 [2004] [internal quotation marks omitted]). Accordingly, [*3]deference must be accorded the Superintendent’s expression of intent herein with respect to the no-fault regulations, in light of the Superintendent’s “special competence and expertise with respect to the insurance industry” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 864 [internal quotation marks omitted]) unless, according to the normative rules of construction, the purported intent is “unreasonable or irrational” (Matter of Rodriguez v Perales, 86 NY2d 361, 367 [1995]) or so “conflicts with the plain meaning of the promulgated language” that the courts are obligated to disregard it (Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005]).

To the extent that an issue of regulatory construction is presented, in the first instance we must consider the text’s “plain meaning” (Matter of Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d 588, 589 [2005]). Plaintiff and, in an amicus brief, the Board of Advisers of the Acupuncture Society of New York, contend that the purported significance of the use of the terms “applicant” and “assignee” in 11 NYCRR 65-3.9 (a) and the use of only the term “applicant” in 11 NYCRR 65-3.9 (c) was intentional, invoking the rule of construction that the “failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended” (McKinney’s Cons Laws of NY, Book 1, Statutes § 74). However, it is also well settled that “a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other” (Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 464 [2004] [internal quotation marks omitted]) and “are to be so interpreted as to give effect to every part thereof . . . and any construction which deprives any part of a statute of effect and meaning, when it is susceptible of another interpretation giving effect to every part, is avoided” (McKinney’s Cons Laws of NY, Book 1, Statutes § 231, Comment). The aforementioned rule applies equally to the construction of regulations.{**15 Misc 3d at 108}

A review of the use of “applicant,” “eligible injured person” and “assignee” in the no-fault regulations reveals that, while they are often employed interchangeably and occasionally redundantly, context invariably yields content. Many regulations refer to “applicant” generically, where eligible injured persons and their provider-assignees are clearly meant (e.g. 11 NYCRR 65-3.2 [b]; 65-3.3 [a]; 65-3.8 [b]; 65-4.2 [b] [1] [i]). Other regulations refer to “applicant” when only an eligible injured person can be meant (11 NYCRR 65-3.8 [g]), and still others address, variously, an “eligible injured person or such person’s attorney” (11 NYCRR 65-3.6 [a]) and an “applicant and such person’s attorney” (11 NYCRR 65-3.6 [b]) when provider-assignees are also contemplated. Still other regulations refer only to “applicant” when either an eligible injured person or both eligible injured persons and their assignees are meant, depending on the remedy provided therein (11 NYCRR 65-3.5 [e], [l]). These citations are merely illustrative of the categories discussed (e.g. 11 NYCRR 65-3.8 [b] [2] [“applicant” means the eligible injured person in one clause and both the eligible injured person and his or her assignee in another clause]).

Indeed, the Superintendent, whose interpretation of the Insurance Department’s regulations, as noted, is entitled to deference, acknowledges that the terms “applicant” and “assignee” are used elsewhere in the regulations where “applicant,” employed generically, and in lieu of “claimant” (Insurance Law § 5106 [a]), would have sufficed (e.g. 11 NYCRR 65-3.10 [a]; 11 NYCRR 65-4.8 [b]). The Superintendent urges that such is the case with 11 NYCRR 65-3.9 (a) (see McKinney’s Cons Laws of NY, Book 1, Statutes § 231, Comment [“It is recognized . . . that the drafters of statutes do not always use the most apt words to express their intent; . . . that words [*4]are frequently used in a statute which are not necessary, but are to some extent superfluous”]).

There is an additional reason why it is not reasonable to suppose the Insurance Department intended to omit reference to assignees in 11 NYCRR 65-3.9 (c). The interest provision, presently at 24% per annum, is punitive in nature (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]) and “designed to inflict an economic sanction or penalty on those insurers who do not comply” (Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]). As the No-Fault Law is in derogation of the common law and “must be strictly construed” (Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211{**15 Misc 3d at 109} [1994]), the regulations must be interpreted in a manner conducive to the legislative goal of deterring dilatory responses to claims (Brunner v Allstate Ins. Co., 79 AD2d 491, 494 [1981]). Indeed, if interest is a penalty provision and a key mechanism of the Legislature’s mandate “to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of . . . accidents” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]), the imposition of a disparate application of the penalty depending on whether the applicant is an eligible injured person or a provider/assignee would contravene that goal.

The construction adopted by the court below creates the anomalous result that, rather than acting promptly to resolve a dispute, assignees only may decline to act on a claim upon which a mandatory punitive interest penalty is imposed (St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), for as long as the statute of limitations for breach of contract has yet to run (CPLR 213 [2]), and receive interest at a rate more than twice what is provided for ordinary breach of contract actions (CPLR 5004). The regulations do not permit eligible injured persons to delay arbitration or suit for such a purpose (11 NYCRR 65-3.9 [c]) and there is no rationale discernable in purposes of the No-Fault Law to support such a result.

The regulations, read as a whole in accordance with the rules of construction, the deference to be accorded the Superintendent’s assertion of intent, and the undesirable consequences of exempting assignees from the limitation imposed by 11 NYCRR 65-3.9 (c), lead to the conclusion that the reference to “applicant” in 11 NYCRR 65-3.9 (c) includes an eligible injured person’s assignee. Accordingly, the matter is remanded to the court below for a calculation of the statutory interest due in accordance with the decision herein.

Pesce, P.J., Golia and Belen, JJ., concur.

Footnotes

Footnote *: Although the claims herein predate the amendments to the no-fault regulations effective April 5, 2002, as the regulations at issue were not modified to any material extent, they are cited as presently promulgated.

[*1]

Supreme Court, Appellate Term, Second Department, December 11, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Romagnolo & Cambio, LLP, Staten Island (Michael Gullo of counsel), for respondent.

{**14 Misc 3d at 95} OPINION OF THE COURT

Memorandum.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $357.94, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on plaintiff’s remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was 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]). Defendant’s failure to timely object to the completeness of the claim forms or seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 [*2]AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Defendant’s remaining contentions regarding plaintiff’s alleged failure to establish its prima facie entitlement to summary judgment similarly have no merit. The burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).{**14 Misc 3d at 96}

A review of the record indicates that defendant made verification requests of the assignor seeking chiropractic and orthopedic independent medical examinations (IMEs) by letters dated May 22 and 23, 2002, which was prior to its receipt of plaintiff’s $357.94 claim on May 30, 2002. Consequently, these were preclaim verification requests and the tolling provisions of the insurance regulations do not apply (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s July 11, 2002 denial of said claim was untimely (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). Defendant, however, timely denied, on the basis of the assignor’s failure to attend the preclaim IMEs, the $101.07 claim which it received on June 19, 2002 and denied on July 9, 2002, the $67.38 claim which it received on July 1, 2002 and denied on July 9, 2002, and the $67.38 claim which it received on August 5, 2002 and denied on August 30, 2002 (see e.g. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51316[U] [App Term, 2d & 11th Jud Dists 2005]), and established such failure in admissible form in opposition to plaintiff’s motion for summary judgment. Consequently, the presumption of medical necessity which otherwise attached to these claim forms was rebutted and defendant raised a triable issue of fact as to the medical necessity of the services rendered (see e.g. S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists 2004]).

We are aware that defendant’s agent sent a letter to plaintiff dated June 5, 2002 in which it stated that it had “received your [$357.94] bill . . . [and] [t]here will be a delay in our consideration of the bills . . . because . . . the claimant involved is currently scheduled for independent medical examinations.” The agent also sent letters to the assignor dated June 11 and 14, 2002 by which it, respectively, reminded the assignor of the chiropractic IME scheduled for June 18, 2002 and the orthopedic IME scheduled for June 24, 2002. The assignor was apparently unable to attend the orthopedic IME scheduled for June 24, 2002, and contacted defendant’s agent. By letter dated June 18, 2002, defendant’s agent acknowledged the assignor’s request to reschedule the orthopedic IME due to his work schedule, and rescheduled said IME to July 2, 2002. By another letter dated June 18, 2002, defendant’s agent acknowledged defendant’s{**14 Misc 3d at 97} request to reschedule the chiropractic IME and rescheduled said IME to July 1, 2002. It is uncontroverted that the assignor did not attend the rescheduled IMEs.

Even were we to deem the letter of June 5, 2002 to be a valid postclaim request for additional verification pursuant to 11 NYCRR 65-3.5 (b), said request would not have tolled the time which defendant had to pay or deny the claims since defendant did not make follow-up verification requests pursuant to 11 NYCRR 65-3.6 (b) after the assignor failed to attend the July [*3]IMEs. We note that although the assignor apparently contacted defendant’s agent on July 5, 2002 “to advise that he was unable to attend the [previously scheduled] appointment[s],” he was not allowed to reschedule them again. Defendant subsequently issued denials, dated July 9, 2002, based on the assignor’s failure to attend the July IMEs.

Furthermore, unlike our dissenting colleague, we do not view the mutually agreed upon rescheduling of the initial IMEs, from June 18, 2002 to July 1, 2002 and from June 24, 2002 to July 2, 2002, as the equivalent of a failure to supply “any requested verification[]” (see 11 NYCRR 65-3.6 [b]). We, therefore, do not deem the rescheduled July IMEs as follow-up requests.

In the court below, plaintiff’s opposition to defendant’s cross motion to compel depositions was only on procedural grounds. Therefore, plaintiff’s contention that defendant’s cross motion should be denied on the merits because it was not entitled thereto was improperly raised for the first time on appeal, and will not be considered by this court (see e.g. First Nationwide Bank v Goodman, 272 AD2d 433 [2000]). Plaintiff’s remaining contentions have no merit.

Accordingly, plaintiff is awarded partial summary judgment in the principal sum of $357.94, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on plaintiff’s remaining claims.

Golia, J. (concurring in part and dissenting in part): I concur with the findings of my colleagues to the extent that they find defendant timely denied plaintiff’s $67.38, $101.07 and $67.38 claims. I also agree that defendant’s proof as to mailing of the various notices was sufficient. However, I disagree with and dissent from their finding that defendant’s denial of the $357.94 claim, which it received on May 30, 2002 and denied on July 11, 2002, was untimely.{**14 Misc 3d at 98}

An examination of the record in this case will reveal that this defendant did everything conceivable to meet and exceed the requirements and the spirit of the no-fault regulations.

Defendant, in accordance with the regulations, sent a notice for an independent medical examination (IME) to the eligible injured person on May 22, 2002 directing that he appear for IMEs on June 18, 2002 and June 24, 2002. This notice was sent prior to plaintiff’s filing this claim, which is permissible pursuant to the regulations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]).

It is necessary to briefly examine the importance which the majority places on the fact that the initial notice for an IME was sent prior to the claim being filed. The majority in Fogel created, what I consider, a “forced” and unnecessarily complex interpretation of a very simple regulation. 11 NYCRR 65-1.1 states: “The eligible injured person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (emphasis added).

Nevertheless, Fogel created a bright-line distinction between an IME request that was sent before a claim was filed (preclaim) and one that was requested after the claim was filed (postclaim). Having invented this dichotomy, the Fogel majority held that if the assignor failed to appear at a preclaim IME, then such failure established, in itself, an issue of fact as to medical necessity. It further held that if the assignor failed to appear at a postclaim IME and the defendant had followed the protocols set forth in the regulations, then summary judgment would be granted to the defendant.

In the Fogel case, I dissented and found that the regulations do not establish such a distinction. In fact it is interesting to note that the Appellate Term of the First Department in Inwood Hill Med., P.C. v General Assur. Co. (10 Misc 3d 18, 20 [2005]) acknowledged and cited the Fogel decision but found that “we decline to follow the majority’s holding and find more persuasive the conclusion reached by . . . [the] dissent.”

Notwithstanding my belief that there should not be any distinction between preclaim and postclaim requests for an IME, I nevertheless find here that defendant has properly and timely met the requirements of the regulations, even as defined by the majority in Fogel. As is tacitly addressed in the majority’s decision, defendant’s “delay letter” of June 5, 2002 should serve as{**14 Misc 3d at 99} a postclaim verification request inasmuch as it contains all the elements required.

Plaintiff’s assignor did not appear for those “first” scheduled dates. Defendant, at assignor’s request, rescheduled the IMEs for July 1 and July 2, 2002 and then sent letters reminding the assignor of the mutually agreeable dates of the second appointments for IMEs. [*4]The assignor, nevertheless, failed to appear on either July 1st or July 2nd and defendant thereupon sent a timely denial (NF-10). I note that the assignor contacted defendant immediately prior to the first scheduled IME and requested rescheduling. There was no such request for a rescheduling of the July appearances; the assignor simply failed to appear. It was only after the assignor failed to appear on July 1st and then failed to appear on July 2nd that he contacted the defendant on July 5th to discuss rescheduling.

Consequently, even if one were to discount the June 18th and June 24th IME appointments, it would be absurd to require defendant to serve a second set of notices for IMEs when the original dates were previously rescheduled at the assignor’s request and upon which he intentionally failed to appear and failed to notify the defendant that he would be unable to appear.

If one were to follow the reasoning of the majority, then defendant would have been well served to ignore the assignor’s request for rescheduling of the June dates. Thereafter, upon the assignor’s failure to appear, the defendant would then send a “follow-up” request setting a date of defendant’s choosing and thereby inconvenience the assignor, and upon the assignor’s failure to appear, defendant could then “legitimately” issue an NF-10 denial of claim.

In the matter before us, defendant sent its request for an IME on May 22, 2002. Plaintiff, on May 28, 2002, filed this disputed claim for $357.94. On June 11, 2002 and on June 14, 2002, both dates well within the 30-day claim period, defendant sent “reminder” letters to the eligible injured person (assignor) which noticed him for examinations on June 18, 2002 and June 24, 2002. On June 17, 2002 defendant received requests to adjourn both June IMEs and rescheduled them to the mutually agreed upon dates of July 1 and 2, 2002. (See affidavit of Jeffrey Mehl, Executive Director HVMC, exhibit H, ¶ 5 of defendant’s cross motion.)

In addition, on June 5, 2002, defendant sent a “delay letter” to plaintiff (assignor) which stated specifically that the{**14 Misc 3d at 100} claim was being delayed due to a pending demand for an IME of plaintiff’s assignor. Certainly this postclaim “delay letter” must serve as a functional equivalent of an additional verification request pursuant to the regulations inasmuch as it specifically informed the plaintiff of what was required in order to complete the claim filed. In fact, the majority of the court then sitting in Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]) held that a verification request will not serve to toll the 30-day period if it merely informs that the claim is delayed but fails to specify the particular information sought. Since this notice informs the plaintiff, with specificity, of the information sought, it is a functional equivalent and therefore qualifies as an additional verification request which in turn tolls the 30-day period. To me, that is substance over form.

I note that plaintiff’s attorney’s affirmation states at page 5 that “there are no notices . . . calling for any verification or cooperation whatsoever.” He claims that the assignor has no obligation to open any mail from an unknown source and since the notice did not come from the insurance company, it has no significance. How counsel can speak for the assignor who is not his client and without an affidavit in support of his assertions is beyond me. Clearly it has no significance and should be discounted.

Despite defendant’s well demonstrated willingness to accommodate the assignor, that individual willfully failed to appear either on July 1 or July 2, 2002. Nor did he request an [*5]adjournment prior to July 1, 2002. The fact that he requested yet another opportunity to appear for these IMEs was clearly a red herring used to give the assignor additional time to build up his no-fault claim and cost the defendant additional funds for “no-show” medical appointments.

There must be an end. The assignor’s failure to appear at either of the two appointments that he scheduled certainly constitutes a reasonable end.

Here, defendant used every reasonable means to assure compliance with the regulations and to give proper notice to plaintiff and its assignor. Indeed, it was only after the assignor failed to appear on the adjourned dates, the second of which was requested by the assignor himself, that the defendant sent an NF-10 denial of claim.

Clearly, in light of those delay letters and reminder notes sent by the defendant, the NF-10 denial of claim form sent on July{**14 Misc 3d at 101} 11, 2002 was timely and I would affirm the order of the court below.

Pesce, P.J., and Rios, J., concur; Golia, J., concurs in part and dissents in part in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, December 8, 2006

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**14 Misc 3d at 75} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, affirmed without costs.

In an action to recover first-party no-fault benefits for health care services provided to an assignor, a plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and amount of the loss sustained and that payment of no-fault benefits is overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). While in its motion papers, plaintiff proved that it prepared a claim setting forth the fact and amount of the loss, plaintiff’s proof that it submitted the claim to defendant was inadequate. We have held that a no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer’s denial of claim form wherein the insurer acknowledges the claim’s receipt (e.g. Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists 2006]). Where, as here, plaintiff failed to annex the defendant’s denial of claim form to its motion papers, and the defendant annexes the denial of claim form to its opposing papers, the deficiency is similarly cured.

We are aware of the well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of [*2]law requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, it has been said that where a movant fails to demonstrate its entitlement to judgment as a matter of law, it is unnecessary for the court to even consider{**14 Misc 3d at 76} the sufficiency of the opposition papers (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). While opposition papers should not be reviewed for the sufficiency of the opposition, i.e., in order to determine whether a triable issue of fact has been raised, since in such cases the burden of proof will not have shifted to the party opposing the motion (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers. Where the missing elements of a movant’s prima facie showing of entitlement to judgment as a matter of law (such as here, plaintiff’s submission of the claim forms) are supplied in the opposition papers, it is our opinion that the court may, in its discretion and pursuant to its power to search the record (CPLR 3212 [b]), find that a prima facie case exists, thereby shifting the burden of proof, notwithstanding the evidentiary deficiencies in the moving papers. Indeed, CPLR 3212 (b) authorizes the court to grant a motion for summary judgment, if upon “all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (emphasis added). The discretion of the court to review the opposition papers may be viewed as akin to the court’s discretionary power to grant reverse summary judgment in an appropriate case. This discretion exists both in the motion court and, in the first instance, in an intermediate appellate court (see e.g. Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112 [1984]). Thus, the opposition papers may, in the court’s discretion, be perused to determine whether the record as a whole establishes the movant’s prima facie entitlement to judgment. Were we to interpret the law otherwise, a court could not, for example, grant summary judgment to a plaintiff whose moving papers are insufficient, even where there has been a concession of liability in defendant’s opposition papers.

Accordingly, where a movant has not made out a prima facie entitlement to summary judgment, while a motion court need not consider the opposition papers, it is not necessarily an improvident exercise of discretion for it to do so in order to determine whether the record as a whole will establish a party’s prima facie case. In the instant case, we exercise our discretion to search the record, as we have done in prior cases (see e.g. Dilon Med. Supply Corp. v State Farm Mut. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51344[U] [App Term, 2d & 11th Jud{**14 Misc 3d at 77} Dists 2006]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51189[U] [App Term, 2d & 11th Jud Dists 2006]; Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists 2006]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]; PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists 2006]), and find that plaintiff’s prima facie entitlement to summary judgment was established, thereby shifting the burden to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., [*3]68 NY2d 320, 324 [1986]).

Defendant’s denial was untimely (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), and defendant failed to establish a tolling of the statutory 30-day claim determination period (New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]) by proof that it issued a proper and timely verification request (11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5 [a]). Defendant alleged that it requested that assignor submit to an examination under oath (EUO) in December 2001. However, “the insurance regulations in effect prior to April 5, 2002 did not provide for EUOs as a form of verification” (A.M. Med. Servs., P.C. v Nationwide Mut. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51425[U] [App Term, 2d & 11th Jud Dists 2006]; see also King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists 2004]), and the absence of an EUO provision in the former verification scheme “may [not] be remedied by reference to policy provisions requiring that an insured cooperate with the insurer’s investigation of a claim, even if a clause therein explicitly provides for cooperation in that form” (Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

While the untimely denial did not preclude defendant from interposing the defense that the assignor’s injuries did not arise from a covered incident, i.e., an incident alleged to have been staged to defraud defendant (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]; see also State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]), it{**14 Misc 3d at 78} remained defendant’s burden to demonstrate “a founded belief” that the injuries did not result from an insured event (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and we agree with the court below that defendant failed to establish a triable issue of material fact as to fraud. The facts set forth in the affirmation of defendant’s counsel were without probative value as she had no personal knowledge of those facts (e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [2004], supra), and none of the attached documents are sworn or supported by an affidavit by someone alleging personal knowledge of their preparation (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]; see Rue v Stokes, 191 AD2d 245, 246 [1993]). In his affidavit, defendant’s claims representative likewise asserted no personal knowledge of defendant’s investigation into the incident and even if this case presented the “certain circumstances” meriting consideration of proof that would be inadmissible at trial (Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]), the facts established little more than “unsubstantiated hypotheses and suppositions” (Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]), a “legally insufficient [basis] to support [a] defendant’s fraud allegation” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1-2 [App Term, 2d & 11th Jud Dists 2004]).

Golia, J. (dissenting and voting to reverse the order, insofar as appealed from, and denying plaintiff’s motion for summary judgment). Initially, I note with dismay the finding of the motion court. That determination is patently incorrect. The determination, which granted plaintiff summary judgment, stated that “plaintiff proved that it submitted a timely and proper notice of claim pursuant to the No-Fault [*4]statute.” With regard to that fact, the Appellate Term unanimously disagrees and finds that plaintiff failed to prove that it submitted the claim at all.

I further note, although not addressed by the majority, that the notice of claim which plaintiff provided was not a “proper notice of claim pursuant to the No-Fault statute.” The majority responds that due only to defendant’s failure to request a timely verification or raise a defense as to the propriety of the claim form, the defendant was precluded from raising those issues. I submit that a defendant’s failure to contest improper forms is not the same as a finding that the forms were proper.

My dissent, however, is predicated primarily upon the inappropriate expansion of the majority’s willingness to assist the plaintiff to establish its prima facie case in this no-fault matter.{**14 Misc 3d at 79}

The plaintiff here did not even meet the relaxed standard of making out a prima facie case that was first enunciated by the Appellate Term in a previous no-fault proceeding (see 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]) and its progeny. That case held that a health care provider need only prove that it submitted a properly completed claim form to establish its prima facie entitlement to summary judgment. It need not establish any medical necessity for providing the medical supplies or services performed. Indeed, in the event the defendant is precluded from raising a defense as to the propriety of the claim form in whole or in part, the plaintiff is then not even required to affirmatively establish that the claim form was “properly completed.”

In supporting its claim that the Appellate Term has the authority to search the record in order to find missing elements to establish a prima facie case in plaintiff’s motion, the majority cites to CPLR 3212 (b); specifically, that the motion can be granted upon “all the papers and proof submitted” (emphasis added). They did not include the first two sentences of that section which read:

“A motion for summary judgment shall be supported by affidavit[s], by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts . . . and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.”

When read together, one should conclude that this section imposes upon the movant a minimum requirement in order to establish a prima facie case. I emphasize that a motion for summary judgment must be supported within the four corners of the motion itself. To lessen this burden, as the majority now does in this no-fault proceeding, I submit, is unsupported in the law.

There is an Appellate Division, First Department case, Bowery Sav. Bank v 130 E. 72nd St. Realty Corp. (173 AD2d 364 [1991]), which “appears” to support the majority’s contention that a court may grant summary judgment upon information in the record that was not provided by the moving party. However, a careful reading of that case and the record on appeal reveals that this issue was never briefed. More importantly, it was not{**14 Misc 3d at 80} even considered by the trial court. [*5]In fact the unpublished decision from the Supreme Court cites to Alvarez v Prospect Hosp. (68 NY2d 320 [1986]) for the proposition that the initial burden lies upon the movant. That court then goes on to indicate that the defendant does not dispute certain issues but fails to raise sufficient allegations to raise a triable issue of fact.

At no point does the Supreme Court or the Appellate Division assert that it has the right to search the record in order to bolster the movant’s applications. There is clearly a distinction between discounting a technical failure that is not at issue and, on the other hand, combing through the record in order to search for missing elements of plaintiff’s prima facie case.

Until now, a plaintiff did, at least, have the initial burden to prove that the claim form was actually sent to the defendant. The Appellate Term has long held that such proof could be established by annexing the defendant’s denial form thereby proving that the claim was received. My colleagues now no longer require that plaintiff establish a prima facie case within the four corners of its motion as long as the majority can find the proof upon a complete search of the record.

Although the majority acknowledges the “well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985])” (at 75), it nevertheless decided to search this record here and find that a prima facie case exists.

The majority then cites to the Court of Appeals case of Alvarez v Prospect Hosp. (68 NY2d 320 [1986]) which cites Winegrad, and which substantially stands for the same proposition. Nevertheless, the majority asserts that “this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers” (at 76). What they fail to explain is how they reached that conclusion given the following language in Alvarez: “As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law . . . Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez, 68 NY2d at 324 [emphasis added]).{**14 Misc 3d at 81}

For the majority now to say that Alvarez does not preclude them here from reviewing the opposition papers and finding a prima facie case for the movant upon the entire record is, in my opinion, misrepresenting the clear language enunciated by the Court of Appeals. That Court unequivocally stated that such failure mandates a denial of the motion despite the sufficiency of the opposing papers, a ruling which this court is duty bound to follow.

Finally, I submit, the majority engages in an argument of pure sophistry. It asserts that the Appellate Term has the authority to search the record and grant reverse summary judgment even in the absence of a cross motion or an appeal seeking such relief. I agree. It goes on to conclude that the Appellate Term must therefore have the authority to search this record in order to grant summary judgment even in the absence of the movant making out its prima facie case. I [*6]do not agree.

There is no question that this court has the authority to search the record and grant reverse summary judgment (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). That does not mean, however, that the Appellate Term can use that authority to correct this no-fault movant’s failure to establish its prima facie entitlement to judgment. In my view, the majority’s decision would permit a trial court to exercise its discretion in an open and relaxed manner and would, consequently, result in varied and conflicting decisions based upon the same or similar facts. The result can only lead to confusion and increased appellate litigation. Clearly, in no-fault matters, where the Appellate Term has provided the plaintiff with the simplest of requirements to establish a prima facie case as a matter of law, it now holds that even less is required.

Pesce, P.J., and Rios, J., concur; Golia, J., dissents in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2006

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata & Gullo, LLP, Staten Island (Michael Gullo, Junmin Zou and Michelle Titone of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**14 Misc 3d at 45} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for a determination de novo of defendant’s cross motion.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a “corporate officer” of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s “corporate officer” stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant opposed plaintiff’s motion and cross-moved to compel depositions of plaintiff, plaintiff’s assignor, and the assignor’s treating physicians. In opposition to plaintiff’s motion, defendant argued that the affidavit by plaintiff’s “corporate officer” was insufficient to establish personal knowledge of the facts set forth therein because the “corporate officer” did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). Among other [*2]things, defendant submitted an affidavit executed by one of its special investigators, and a report prepared by said investigator, which set forth why the special investigator believed that the injuries allegedly sustained by plaintiff’s assignor were not causally related to a covered accident. The court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Upon this appeal, defendant argues, inter alia, that plaintiff did not demonstrate a prima facie case because it failed to lay a proper foundation for the admission of its documents and that plaintiff’s motion should be denied because there was an issue of fact as to whether the alleged injuries were the product of a staged accident. Defendant further asserts that its cross motion should have{**14 Misc 3d at 46} been granted because there is an issue of fact concerning the causation of the alleged injuries.

It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant’s opposing papers contained a timely objection asserting that plaintiff’s motion papers did not make a prima facie showing in admissible form due to plaintiff’s failure to demonstrate that the “corporate officer” possessed personal knowledge concerning plaintiff’s office practices with regard to the subject claim forms, this issue was not waived (cf. Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393 [2005]; Teig v First Unum Ins. Co., 282 AD2d 669 [2001]; Sam v Town of Rotterdam, 248 AD2d 850 [1998]).

The affidavit submitted by plaintiff’s “corporate officer” failed to demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte v Bellin, 137 AD2d 406, 408 [1988] [“In order to lay the foundation for the doctor’s business record, (the party seeking admission of the record) was required to call a witness with personal knowledge of the doctor’s business practices and procedures”]; Dayanim v Unis, 171 AD2d 579 [1991]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006] [affirmation by an attorney who lacked personal knowledge was insufficient to lay a foundation for a determination that his clients’ documents were admissible as business records]).

A review of the record in Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (12 Misc 3d 147[A], 2006 NY Slip Op 51557[U] [App Term, 9th & 10th Jud Dists 2006]) reveals that the affidavit which plaintiff submitted in said case was similar to the affidavit in the instant case, in that both affidavits were executed by unspecified “corporate officers.” The Appellate Term for the Ninth and Tenth Judicial Districts stated, “the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms, mailing receipts, denials (indicating that defendant received the claims) and other documents to{**14 Misc 3d at 47} be considered by the court.” (Id. at *1.) However, the argument raised by the defendant in the court below in said case was that plaintiff failed to make a prima facie showing because plaintiff’s affiant did not demonstrate that he possessed personal knowledge of the facts set forth in such records. The Appellate Term for the Ninth and Tenth Judicial Districts rejected this argument. An affiant need only demonstrate that he or she possesses personal knowledge of the office practices such that the affiant can lay a sufficient foundation to establish that such documents are business records (see CPLR 4518; see generally William Conover, Inc. v Waldorf, 251 AD2d 727 [1998]; Matter of [*3]Brooke Louise H., 158 AD2d 425 [1990]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). Given the limited argument raised by defendant in said case, the Appellate Term for the Ninth and Tenth Judicial Districts was not called upon to rule upon the issue presented in this case, to wit, whether the affidavit by the “corporate officer” sufficiently set forth a foundation for the admissibility of the purported business records annexed to said affidavit. We hold that the instant affidavit is insufficient to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte, 137 AD2d at 408).

In light of the foregoing, plaintiff failed to tender sufficient proof in evidentiary form to establish its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [2006], supra; 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]). To the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do (see Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [2006], supra). As a result, plaintiff’s motion for summary judgment should have been denied.

We note that, even if plaintiff had established a prima facie case, in the instant matter, plaintiff’s motion for summary judgment should, in any event, have been denied because defendant’s{**14 Misc 3d at 48} opposition to plaintiff’s motion for summary judgment demonstrated the existence of a triable issue of fact as to whether “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Inasmuch as defendant’s cross motion to compel depositions was, in effect, denied as academic in light of the Civil Court’s conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the Civil Court for a determination de novo of defendant’s cross motion.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.