District Court of Suffolk County, Third District

HUC 3646-05

Baker, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Attorneys for the Plaintiff

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road, Suite 220

Melville, New York 11747

Attorneys for the Defendant

C. Stephen Hackeling, J.

Plaintiff’s complaint dated May 27, 2005, seeks recovery on fifteen separate no-fault medical provider insurance claims, together with statutory interest and statutory N.Y.S. Insurance Law Article 51attorney’s fees. Each claim is identified via its own independent cause of action and designated as the odd number causes of action detailed in the complaint. Each of these fifteen causes of action represents an individual bill/claim for services.

Issue Presented

On the October 25, 2007 trial date herein, the parties’ attorneys settled the above causes of action for first party benefits by agreeing that the plaintiff would recover a determined percentage of the principle sued for, together with interest and costs. The parties seek judicial intervention solely on the issue of the proper method of calculating statutory attorney’s fees to be awarded to the plaintiff.

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Relying upon a NY State Insurance Department opinion the defendant argues that the Court should aggregate the plaintiff’s fifteen cause of action/claims, and award attorney’s fees in the amount of 20% of the aggregate amount of the bills encompassed in plaintiff’s complaint, with a maximum award of [*2]attorney’s fees capped at $850. The plaintiff argues that it is entitled to separate attorney’s fees for each bill submitted and overdue; in this case on each of the fifteen separate causes of action, which correspond to fifteen separate bills of a single provider for services rendered to a single assignor.

Legal Discussion

Regulation 11 NYCRR §65-4.6 (e) of the Insurance Law governs attorney’s fees in no-fault actions. It states that “….Subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee shall be limited as follows: twenty percent of the amount of first-party benefits, plus interest thereon, awarded by an arbitrator in Court, subject to a maximum fee of $850”. The statute “requires payment of counsel fees on a per claim basis“. LMK Psychological Servs., P.C. v. State Farm Mut. Auto Ins. Co., 2007 NY Slip Op. 10443. (NYAD 3d Dept. 1994). See also Smithtown General Hospital v. State Farm Mut. Auto Ins. Co., 207 AD2d 338 (NYAD 2d 1994), interpreted a predecessor statute (11 NYCRR 65.17 (b) (6), awarded attorney’s fees on a “per claim” basis and rectified its lower Court’s imposition of a $850 ceiling on attorney’s fees in the entire action. As noted by the Court in Valley Stream Medical & Rehab., P.C. v. Allstate Insurance Co., 15 Misc 3d 576 (Civ. Ct. Queens, 2007), “the per claim’ calculation of attorney’s fees laid out in Smithtown General Hospital decision are properly calculated for each separate claim form submitted to an insurer… has been accepted as the proper approach.

In Alpha Chiropractic, PC. v. State Farm Mut. Auto Ins. Co.,14 Misc 3d 673 ( NY City Civ. Ct., 2006), the Court awarded attorney’s fees to plaintiff “as to each proof of claim form submitted pertaining to the assignor, equal to twenty percent of the amount set forth in each claim…” and explained that each “proof of claim” form refers to “an NF-3 (or its functional equivalent), which while often enumerating a number of medical services provided over more than one date, (and) relates to a single bill”. See also, Spineamericare Medical, PC. v. Liberty Mutual Ins. Co., 2002 NY Slip Op. 50511U ( District, Nassau, 2002), which awarded plaintiff’s attorneys’ fees in the amount of twenty percent of the total of each of two claims, “…subject to a cap of $850, separately applicable to each claim.”

This Court regards and agrees with the discussion of the Hon. Diane A. Lebedeff, in Valley Stream Medical & Rehab., PC. v. Allstate Insurance Co.(citation supra), which declines to adopt the reasoning of an Insurance Department opinion letter under its consideration and which aptly discusses the doctrine of stare decisis. By similar reasoning, this Court rejects any interpretation which relies on the Insurance Department opinion letter in question and which seeks to cap “no-fault” attorney fees at $850 per claim. Inasmuch as the causes of action contained in the instant complaint correspond to individual claims of the plaintiff herein, the plaintiff is entitled to attorney’s fees on a per claim basis on each odd numbered cause of action, at the rate of twenty percent of the amount settled to for each claim, with a maximum of $850 per claim.

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The plaintiff shall submit the stipulation of the parties (as to principle, interest and costs) along with a proposed judgment, which shall include attorneys fees calculated in amanor consistent with this [*3]decision.

Dated: January 10, 2008

____________________________

J.D.C.

Decision to be published_____yes_____no.

[*1]

District Court of Nassau County, Third District, September 18, 2007

APPEARANCES OF COUNSEL

Nicolini, Paradise, Ferretti & Sabella, Mineola (Andrew Cox of counsel), for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Michael C. Hayes of counsel), for plaintiff.

{**17 Misc 3d at 584} OPINION OF THE COURT

Howard S. Miller, J. [*2]

Defendant moves unopposed to reargue the court’s denial of a prior motion for severance of the two claims pending in this action. Those claims are brought by the same no-fault plaintiff assignee, arising out of services rendered to two unrelated assignors.

In the underlying motion, defendant cited Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp. (291 AD2d 536 [2d Dept 2002]) for the proposition that claims submitted by unrelated assignors ought to be severed. Mount Sinai, however, is distinguishable in that it also involved several unrelated assignees. That means that it is not subject to the general rule that a single plaintiff may join whatever claims he, she or it may have against an adverse party. (CPLR 601 [a].)

On motion for reargument, the defendant brings two additional cases to the court’s attention: Poole v Allstate Ins. Co. (20 AD3d 518 [2d Dept 2005]) and S.I.A. Med. Supply Inc. v GEICO Ins. Co. (8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists 2005]). Defendant argues that those two cases make it clear that the court has discretion to sever no-fault claims when they arise out of different accidents, and indeed must sever when the plaintiff joins claims from 47 different assignees (as in Poole), or from 11 different assignees (at least in the Second and Eleventh Judicial Districts, as in S.I.A. Med. Supply).

The court understood and understands that it has discretion to sever claims under CPLR 603 when a trial would be unwieldy or confusing to the trier of fact. If this case had involved 47 different assignors, or perhaps even 11, the court would have exercised its discretion to sever. This case, however, involves only two different assignors and two different accidents. Thus, there is little danger of an unwieldy trial or of confusion to the trier of fact.

In reaching its prior decision, the court relied on CPLR 601 (a). “CPLR 601 (a) embodies the modern principle of civil procedure that a party should have maximum freedom to assert multiple claims against the adverse party. The claims need not{**17 Misc 3d at 585} be factually related.”^[FN*] If defendant’s argument were to be accepted, to the effect that two unrelated no-fault claims may not be joined by the same plaintiff, the court would be rendering CPLR 601 (a) essentially meaningless.

The court believes that the State Legislature put CPLR 601 at the beginning of an article for a reason, namely, that it is the general rule, and CPLR 603 is the exception. It follows that the joinder of two claims must nearly always be upheld. It is not necessary for the court to decide now where the line is to be drawn between two claims and 47 claims. That will depend on the circumstances of each case.

Finally, defendant argues that the criteria for evaluating a plaintiff’s voluntary [*3]joinder under CPLR 601 (a) should be the same as the criteria for evaluating an involuntary consolidation of claims under CPLR 602. That argument is seriously flawed because of the “modern principle” cited in the commentaries to CPLR 601. The CPLR gives the plaintiff considerable latitude to join claims under circumstances where there might be insufficient grounds for involuntary consolidation of those claims.

Because the defendant has cited nothing leading the court to believe that it misapprehended the law, the motion to reargue is denied.

Footnotes

Footnote *: Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C601:1, at 298 (emphasis supplied).

[*1]

District Court of Nassau County, Third District, May 22, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Alyson J. Birdie of counsel), for defendant. Israel, Israel & Purdy, LLP, Great Neck (Veronica Renta Irwin of counsel), for plaintiff.

OPINION OF THE COURT

Howard S. Miller, J.

By order to show cause dated December 15, 2006, defendant moves for an order “rectifying plaintiff’s proposed judgment.” That proposed judgment was filed pursuant to this court’s order of September 29, 2006. The order dealt ambiguously with the issue of attorneys’ fees under the no-fault regulations, which are ambiguous themselves, in a case where multiple claims are litigated in the same action. The parties have been unable to agree on the resolution of that ambiguity, and now ask the court to resolve it.

Plaintiff in this action is a provider of medical services, and it received assignments from Eddie Medina of several claims for different services provided to Mr. Medina on different dates, all arising out of one automobile accident. Defendant insurer provided no-fault coverage to Eddie Medina for that accident.

Plaintiff submitted separate claims for each service. This court has already ruled that defendant must pay those claims, and it appears that defendant has done so. The court went on to direct that attorneys’ fees were awarded in the amount of 20% of each claim and that “[a]ttorney’s fees are not to exceed $850.” Plaintiff maintains that the $850 limitation applies to each cause of action, and it seeks to enter judgment accordingly for an amount well in excess of $850. Defendant resists that entry of judgment on the grounds that the $850 limitation applies to the action as a whole, and thus plaintiff may not enter judgment because defendant has already made payment based on an award of attorneys’ fees limited to one award of $850.

The dispute revolves around the interpretation of 11 NYCRR 65-4.6 (e), which provides, in relevant part as follows: “(e) For all other disputes subject to arbitration, . . . the attorney’s fees shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.”

Plaintiff relies on a decision of the Appellate Division, Second Department,^[FN1] which interpreted a predecessor regulation, 11 NYCRR 65.17 (b) (6) (v),^[FN2] to hold that the $850 limitation applies per claim. Defendant relies on a more recent decision of the Civil [*2]Court, Richmond County,^[FN3] which distinguished Smithtown Gen. Hosp. on the grounds that it involved several different assignors, and that the Insurance Department has promulgated an opinion letter in which it opines that the $850 limitation applies per assignor. Because the instant dispute involves only one assignor, defendant argues that this court should give deference to the Insurance Department’s opinion letter and should follow Marigliano, not Smithtown Gen. Hosp.

While the court would agree that it ought to give some deference to the opinion of the Insurance Department in interpreting its own regulations, the court is not obliged to follow that opinion if there are good reasons not to do so. The court is obliged to follow the opinion of the governing Appellate Division until such time as it overrules its own precedent, particularly when there appears to be no good reason to overrule that precedent.

The court is concerned that the Insurance Department may have given inadequate consideration to the practical consequences on the court system if its opinion letter were to be followed by the courts. If attorney’s fees are limited to $850 per assignor in each action, then there is an incentive for medical suppliers holding multiple claims from the same assignor to file those claims as separate actions so that they can recover $850 in attorney’s fees in each action. Such a multiplicity of actions runs contrary to the principle of judicial economy, and would produce a lot of unnecessary paper and fees.

The insurance regulations provide for a limit of $850 per dispute. As far as this court is concerned, a “dispute” arises each time a claim is denied by an insurer. A medical provider ought not to be penalized for promoting judicial economy by consolidating a number of “disputes” (i.e., causes of action) into one civil action. If the Insurance Department really means for its regulations to be interpreted to apply per assignor or per action, it ought to say so clearly in the regulations after a proper rule-making process, not by opinion letter.

In the meantime, the court follows the rule in Smithtown Gen. Hosp. (supra) and modifies its prior order to the extent of clarifying that the $850 limitation on attorney’s fees applies to each cause of action. Defendant’s motion to the contrary is denied. Insofar as that motion pertains to other issues, the court finds them to be de minimis. Plaintiff may enter judgment accordingly for any amounts that remain unpaid. All stays in the order to show cause are vacated.

Footnotes

Footnote 1: Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 (2d Dept 1994).

Footnote 2: The predecessor section did not differ in any material way from the current regulation. It provided, in pertinent part, as follows: “For all other disputes subject to AAA and IDA arbitrations, . . . the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850” (11 NYCRR 65.17 [b] [6] [v]).

Footnote 3: Marigliano v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 1079 (2006).

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District Court of Suffolk County, Third District, December 7, 2006

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Michelle R. Kolodny of counsel), for defendant. Edward Shapiro, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiff.

OPINION OF THE COURT

C. Stephen Hackeling, J.

It is ordered that this application by the defendant for summary judgment dismissing the plaintiff’s complaint is granted, and the plaintiff’s cross motion for summary judgment is denied as moot.

This is an action for first-party benefits (recovery of unpaid health services bill, statutory interest and statutory attorney’s fees) brought pursuant to the No-Fault Insurance Law by a health services provider who rendered medical services to a patient in exchange for the patient’s rights to collect no-fault benefits.

On a motion for summary judgment the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (Andre v Pomeroy, 35 NY2d 361 [1974]). It is incumbent on the proponent of the motion to set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Upon the proponent making out a prima facie case, the burden shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

Issue Presented

Does the production of an electronic signature assignment of benefits and NF-3 claim form in response to an insurer’s verification demand recommence the running of a tolled 30-day no-fault insurance claim denial period?

Cause of Action Tolled Pending Verification

Under New York’s No-Fault Insurance Law, an insurance carrier is required to either pay or deny a claim for benefits within 30 days from its receipt of the claim (see, 11 NYCRR 65-3.8 [c]). “Such benefits are overdue if not paid within 30 days after the claimant supplies proof of the fact and amount of the loss sustained” (Insurance Law § 5106 [a]). For the defendant to properly deny a claim, it must generate its denial and mail it to the plaintiff within 30 days. This period may be extended by, inter alia, a timely demand by the insurer for further verification of a claim (see, 11 NYCRR 65-3.5 [b]). Such demands must be made within 10 business days of the receipt of a completed application (see, 11 NYCRR 65-3.5 [a]). If the demanded verification is not received within 30 days, the insurance company must issue a follow-up request within 10 calendar days of the applicant’s failure to respond (see, 11 NYCRR 65-3.6 [b]). Further, an insurer must request any additional verification it will require within 15 days after receipt of one or more completed verification forms in order to further toll the 30-day payment or denial period (see, 11 NYCRR 65-3.5 [b]). The 30-day period in which the insurer has to either pay or to deny the claim does not begin to run until all demanded verification is provided (see, 11 NYCRR 65-3.8 [a] [1]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]). In fact, the insurer is precluded from issuing a denial while a verification request is outstanding (see, 11 NYCRR 65-3.8 [b] [3]).

The Undisputed Facts

In the case at bar, the plaintiff’s claim for medical services was received by the defendant insurer on August 11, 2005. The defendant made an initial verification request that was mailed on August 22, 2005. The additional verification requested the following information:

“Pursuant to regulation 68, 65-3.11 (B) a provider must submit either a properly executed prescribed assignment of benefits or authorization to pay in order to receive direct payment from the insurer. As you have not submitted a properly executed form, we are unable to consider reimbursement. Enclosed is a prescribed assignment of benefits form for you to complete in full, have signed by the patient, and return to the undersigned. Advise us immediately if you are unable to submit a properly executed assignment or authorization.

“1. The assignment submitted was not signed by the patient.

“2. The assignment submitted was not signed by the provider, electronic signatures are not acceptable.

“3. We are in receipt of your bill for services, however, we have not yet received the fully [*3]completed, prescribed verification of treatment by attending physician form (NF-3). Every box must be fully completed, blank boxes will not be accepted. The patient must elect either box 20 authorization to pay or 21 assignment of benefits, but not both. If the prescribed assignment of benefits or authorization to pay has previously been submitted, please indicate same in box 21. Be advised we require the physician’s original signature on said form. Signature stamps and/or electronic signatures will not be accepted. We require submission of said form, for each provider of service, before consideration of their claim for services. (Regulation 68, 65-3.5F).

“Consideration of your claim will remain delayed pending our receipt of said form and any other verification duly requested. (NF3 attached hereto).”

A follow-up verification request was sent by the defendant on September 22, 2005 as no verifications were supplied by the plaintiff within 30 calendar days of the original request (see, 11 NYCRR 65-3.6 [b]). It is unrefuted that the plaintiff has not responded to the defendant’s verification demands.

Electronic Signatures

The defendant contends, inter alia, that both the assignment of benefits (AOB) form and the NF-3 claim form contain electronic signatures of the assignor/patient Edison Alcantara. Further, the defendant states that both forms show the assignee/provider’s signature as “on file.” The defendant argues that it was entitled to verify the signatures of the assignor/patient and the assignee/provider of health care services. The plaintiff does not rebut the documentary and testimonial evidence demonstrating that the defendant timely requested verification of the signatures of the assignor and assignee on both forms.

The plaintiff argues in opposition that the New York State Electronic Signatures and Records Act (ESRA) and the federal Electronic Signatures in Global and National Commerce Act (E-Sign) require the defendant insurance company to accept the electronic signature of the assignor/patient Edison Alcantara as equivalent to an original signature. The plaintiff contends that the New York state and federal laws give electronic signatures the same validity and effect as handwritten ones. Further, the plaintiff claims that a signature indicated as being “on file” is sufficient, and is not the equivalent of being absent from the particular form.

The defendant submits the October 25, 2006 opinion of the General Counsel’s Office of the New York State Insurance Department regarding electronic record retention of no-fault insurance claim forms in support of its argument that an insurance company is “not obligated to accept an electronic signature.” (Ops Gen Counsel NY Ins Dept No. 06-10-05 [Oct. 2006].) The General Counsel’s opinion addresses two questions presented by a firm representing radiology facilities inquiring whether it may use electronic documents and electronic signatures in submitting no-fault insurance claims. The first question presented asks: “Do the New York State Electronic Signatures and Records Act (‘ESRA’) and the federal Electronic Signatures in Global and National Commerce Act (‘E-Sign’) obligate an insurer to accept electronic records and signatures with No-Fault insurance claim forms?” The General Counsel’s answer was no. The Counsel states that “Neither E-Sign nor ESRA obligates an insurer to accept electronic records or signatures.” The second question presented [*4]asks: “May a digitally reproduced NF-AOB serve as an original document for purposes of a verification request by an insurer under Section 65-3.11 (c) of NY Comp. Codes R. & Regs. tit.11, Part 65 (Regulation 68)?” The General Counsel’s answer was “[y]es, provided that it is accurate and accessible as required under Section 7001 (d) (1) of E-Sign, and the insurer consents to the use of an electronic record as an original document.”

The General Counsel’s office examined the New York State law (ESRA) and the federal law (E-Sign), and concluded that neither law “obligates any person, including an insurer, to accept the use of electronic records and signatures. Accordingly, an insurer is not required to accept electronic records and signatures and may require that such records and signatures are submitted in hard copy form.” Moreover, the regulatory interpretations of the New York State Insurance Department are entitled to a “great deference” (see, Bronx Med. Servs., PC v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022[U], *3 [App Term, 1st Dept 2003]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988]). Consequently, it is the opinion of this court that, as the defendant contends, with regard to a no-fault claim, an insurance company may choose to accept an electronic signature, but it is not obligated to do so. Hence, the defendant’s verification request was proper. As the plaintiff has not yet provided the demanded hard copy verification, the statutory period for the defendant to pay or to deny the plaintiff’s claim continues to be tolled (see, Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2d Dept 2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002]). As a consequence, the plaintiff’s claim herein is premature.

Further, although the plaintiff argues that there is no requirement that a no-fault AOB form contain a signature by the provider and that a signature indicated as being “on file” is sufficient, the form that the plaintiff elected to use clearly requires a “signature of provider.” The plain language of the no-fault insurance regulations requires that the provider submit a “properly executed assignment” on whatever form it chooses to submit. “It is well established that 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 [2d Dept 1994]). Consequently, it is the opinion of the court that the plaintiff’s “on file” signature is not sufficient for a properly executed AOB form. As the plaintiff has also failed to comply with the defendant’s request for additional verification, the court finds that the 30-day period within which the defendant had to either pay or to deny the claim for no-fault benefits did not begin to run.

Accordingly, the defendant’s motion to dismiss is granted, and the plaintiff’s cross motion is denied as moot.

District Court of Nassau County, Third District

3901/04

Bonnie P. Chaikin, J.

In this action for recovery of assigned first party no-fault benefits, plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment in its favor against the defendant. For the reasons set forth below, the motion is granted.

In this type of action, plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g][3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]; A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 781 NYS2d 818 [S Ct NY App Term 2004]).

In this case, it is undisputed that the bill for an MRI in the sum of $879.73 was received by the defendant on May 24, 2004, and that the denial was dated November 1, 2004. (See NF-10 annexed to the moving papers.) Thus, plaintiff has established its prima facie entitlement to summary judgement in its favor.

Once the movant demonstrates a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact that would require a plenary trial of

the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In opposition to this motion, defendant alleges that the claim was denied because it arose from a staged event. It supports this allegation with an attorney’s affirmation, an affidavit by Allstate special investigator Susan Denicola, as well as copies of the EUO transcripts of the assignor and her passenger in the vehicle at the time of the accident.

It is now well established that an untimely denial of claim will not preclude a lack of [*2]coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 659 NYS2d 246 [1997]). However, the insurer must do more than simply allege that it has a well founded belief. As the Court explained in Mount Sinai v Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 (2d Dept 1999), the burden is on the insurer “to come forward with proof in admissible form to establish the fact’ or the evidentiary found[ation for its] belief. Applying these principles to the case at bar, it is clear that the burden is on Allstate to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the instant claim arose from a staged incident rather than a covered accident. Based upon the documents submitted, defendant fails in this regard.

The sworn statement of special investigator Denicola alludes to “information … acquired

that indicates the possibility that the accident was intentionally caused to defraud insurance companies, in general, and Allstate, in particular”, but Investigator Denicola fails to reveals such information.She relies wholly upon the EUOs annexed to the opposition papers, pointing to their inconsistencies and alleged deficiencies.

The court has read both EUOs and is not persuaded that they support a finding that the accident at issue was a staged incident.

Accordingly, the court finds that defendant has failed to come forward with proof in admissible form to show either a staged event or raise a material issue of fact that would necessitate a denial of this motion. There being no triable issues of fact regarding the defendant’s failure to pay or properly deny plaintiff’s claim within thirty days of receipt of said claim, summary judgment is granted in favor of the plaintiff.

The plaintiff is awarded the sum of $879.73, together with interest at the statutory rate of 2% per month from June 24, 2004, plus attorneys fees equal to 20% thereof, not to exceed $850.00. [Insurance Law §5106(a); 11 NYCRR §65-3.9 (a) and ] and 11 NYCRR §65-4.6(e)].

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

____________________________

District Court Judge

Dated:October 13, 2006

cc:Israel, Israel & Purdy, LLP

Stern & Montana, LLP

District Court of Suffolk County, Third District

HUC 1104-05

Edward Shapiro, P.C.

Attorney for Plaintiff

3351 Park Avenue

Wantagh, NY 11793

Robert P. Tusa, Esq.

Attorney for Defendant

898 Veterans Memorial Highway

Suite 320

Hauppauge, NY 11788

C. Stephen Hackeling, J.

After submission of stipulated facts by the parties , Dependable Ambulette, Inc., (hereafter “Dependable”) seeks to recover the sums of $2,015, $1,755, $975, $1,040, for transportation services rendered after April 5, 2002, upon automobile insurance policies issued prior thereto which contained assignability clauses. Dependable, the assignee herein, argues that the NYS Insurance Commissioner’s April 5, 2002 amendment to Art. 68, did not terminate existing policy endorsements but simply required all future insurance policies issued or renewed after April 5, 2002 to contain new endorsements prohibiting assignment of claims. In support of this decision, the plaintiff advances the unreported decision of Dependable Ambulette, Inc. V. Allstate Insurance Co., June 2, 2004, No. 0032/04 (Nassau Co. Dist. Ct. 2004) which holds that revised Insurance Department Regulation 68 can not be retroactively applied to claims made upon policies existing pre April 5, 2002.

This Court is sympathetic to Judge Janowitz’s legal reasoning in creating an “existing policy” exception to the Regulation 68 amendment which barred assignability of ambulance transportation services. However, the Appellate Courts appear to have subsequently clearly settled this controversy. The Second Department, citing to the Court of Appeals,

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unequivocally upheld the dismissal of a post April 5, 2002 transportation no-fault insurance claim. See A B Medical Services PLLC, v. Motor Vehicle Acc. Indemnificatin Corp., 10 Misc 3d 145A (App. Term, 2nd Dept. 206) citing to Medical Society of State of New York v. Serio, 100 NY2d 854 (NY 2003). Though the Second Department and the underlying Appellate Term decision do not address the issue of an pre-existing April 5, 2005 policy endorsement; they expressly hold that the claims were properly dismissed as ” the plaintiffs therein… submitted its transportation copies subsequent to April 5, 2002 regulation… which no longer permit the assignment”. This holding does not appear to grant this Court license to find an exception to the established rule.

The Court notes that the “no-fault”automobile insurance system (NY Ins. Laws Art. 51) is a statutory creature which the legislature has given the Insurance Commissioner broad discretion to regulate. The rights running to the benefit of claimants are principally established via statute and regulation and only secondarily by endorsements made by the insurance carriers. The rights of the insurance carriers and their policy holders do not exist independently of the “no-fault” insurance system and can not be considered in any manner which is inconsistent to the regulations’ intent and purpose. The April 5, 2002 amendment properly voided any existing policy assignment language as “contrary to public policy”. See Medical Society of State of New York v. Serio, 100 NY2d 854 (2003)

Accordingly, the Court dismisses the plaintiff’s complaint.

_____________________________

J.D.C.

Dated: October 3, 2006

Huntington Sta., NY

Decision to be published ____yes___no.

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District Court of Nassau County, Third District

5010/03

Sondra K. Pardes, J.

Chief Judge Kaye recently noted that the Legislature enacted the Comprehensive “Automobile Insurance Act”… – commonly known as the No-Fault Insurance Law-with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts.” (see, Pommells v Perez, NYLJ 4/29/2005, at 18, cols 1-6, at 19 cols 1-3). The instant case, is but one of a myriad of cases that demonstrate the lengths to which parties are willing to go to defeat the objectives of this legislation.

PROCEDURAL HISTORY

This is an action for recovery of No-Fault Insurance benefits for medical treatment provided on September 11, 2002, in the amount of $543.04. The plaintiff commenced this action by service of the summons and complaint on June 19, 2003. Issue was joined on July 18, 2003. The plaintiff served discovery demands dated July 25, 2003 and the defendant responded to those demands on February 26, 2004.

The defendant filed a Notice of Trial and Certificate of Readiness for Trial on [*2]June 4, 2004. The plaintiff filed a motion to strike the defendant’s Notice of Trial on

INDEX NO. 5010/03

June 18, 2004, on the grounds that the Notice of Trial was premature and improper in that in that the defendant failed to adequately and completely respond to the plaintiff’s discovery demands.

The defendant failed to respond to the plaintiff’s motion to strike the Notice of Trial. The motion was submitted without opposition on July 12, 2004. On July 16, 2004 this court, (Marber, J.), directed the parties to appear for a discovery conference on September 30, 2004.

On September 30, 2004 plaintiff’s motion to strike the Notice of Trial, the motion was submitted without opposition once again. On October 27, 2004, this court, (Anzalone, J.), issued an Order directing the parties to appear for a discovery conference to be held on December 9, 2004 to address the issues raised in the plaintiff’s motion. On November 23, 2004 the plaintiff moved for summary judgment. The conference scheduled for December 9, 2004 was adjourned to January 3, 2005, at the request of the plaintiff.

The defendant’s affirmation in opposition to the plaintiff’s summary judgment motion did not address the substantive issues raised in plaintiff’s motion papers. Counsel only asserts that the Notice of Trial was served June 2, 2004 and had not been vacated and therefore, pursuant to CPLR 3212, the plaintiff’s motion for summary judgment should be denied as untimely.

This court directed counsel for both parties to appear for a conference on March 7, 2005. On that date the parties agreed to resubmit the plaintiff’s motion to Strike the Notice of Trial and the plaintiff’s motion for summary judgment to be decided together. The motions are decided as follows.

MOTION TO STRIKE THE NOTICE OF TRIAL

The Plaintiff’s motion to strike the defendant’s Notice of Trial was repeatedly submitted without opposition from the defendant. Accordingly the motion is granted.

MOTION FOR SUMMARY JUDGMENT

In order to make a prima facie showing of entitlement to summary judgment in a No-Fault Insurance action, a medical provider must submit evidentiary proof that it submitted the appropriate claim forms and that the forms were received by the insurer. (see, Damadian MRI in Elmhurst v Liberty Mutual, 3 Misc 3d 128 [A], [App Term 9th and 10th Jud Dist, 2003]). Once a prima facie showing has been made, the burden shifts to [*3]the opposing party to produce evidentiary proof to establish the existence of material issues of fact. (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]).

INDEX NO. 5010/03

In the instant case it is uncontroverted that the plaintiff submitted claims for medical treatment to the defendant and the claims were received in November of 2002. Partial payment was made and the balance denied on each claim within the time prescribed by statute. (see, 11 NYCRR 65-3.5[a]). In each case the defendant indicated on the Denial of Claim form, “code changed to reflect level -of service” and paid a lower fee associated with the new code. The plaintiff asserts that the denials were issued “without a sufficiently detailed factual basis and medical rationale” for the claims’ rejection, i.e. without any explanation for the determination to change the CPT codes. The plaintiff argues that these denials are ineffectual under the rationale articulated in Amaze Medical Supply Inc. v Eagle Insurance Co., 3 Misc 3d 128 [A]; (App Term, 2nd and 11th Jud Dist, 2003).

In opposition to the motion for summary judgment counsel for the defendant states that this motion should be denied because it was submitted more than 120 days after the service of the Notice of Trial and “the Notice of Trial has not been vacated”. The defendant did not respond to the substance of the plaintiff’s motion for summary judgment. The defendant’s affirmation in opposition was dated December 8, 2004. On that date the defendant was clearly aware that a motion to strike the Notice of Trial had been submitted on June 18, 2004, 16 days after the Notice of Trial was served. The defendant was also aware that motion had been adjourned repeatedly, apparently with consent of both counsel, and no decision had yet been rendered when the motion for summary judgment was filed. Moreover, at a conference held on March 7, 2005, the court pointed out the defendant’s failure to oppose the motion to strike the Notice of Trial and its failure to offer any substantive opposition to the motion for summary judgment. Nevertheless, the defendant agreed that both motions be submitted on that date.

Inasmuch as the court has granted the plaintiff’s motion to strike the Notice of Trial, the court finds that the plaintiff’s motion for summary judgment is not untimely pursuant to CPLR 3212. In addition the court concurs with the plaintiff that the defendant’s determination to change the CPT codes with respect to the claims in question and to pay reduced fees not supported by a peer review or any other proof “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” are ineffectual (see, Amaze Medical Supply, supra 2003 WL 23310886, 1) . Finally, the defendant has failed to come forth with any evidentiary proof of a triable issue of fact requiring trial. [*4]

INDEX NO. 5010/03

Accordingly, the plaintiff’s motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against th defendant in the sum of $543.04, plus interest at the rate of 2% per month from June 19, 2003, plus attorney fees of 20% thereof, (attorney fees not to exceed $850.00), plus costs and disbursements of this action.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: May 9, 2005

CC:Israel, Israel & Purdy, LLP

Serpe, Andre & Kaufman

SKP:rad

District Court of Nassau County, Third District

1587/04

Alden Banniettis, Esq., attorney for plaintiff; Samuel K. Rubin, attorney for defendant.

Randy Sue Marber, J.

Plaintiff assignee moves for an order pursuant to CPLR 3212, awarding summary judgment in its favor. The defendant opposes the plaintiff’s motion.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [NY 1986]; Winegard v. New York University Medical Center, 64 NY2d 851 [NY 1985]) and even in the absence of opposing papers. A motion for summary judgment shall be supported by an “affidavit by a person having personal knowledge of the facts”, shall recite all the material facts and it shall show that there is no defense to the cause of action or that the defenses have no merit (CPLR 3212[b]). If the moving party meets his burden, the burden then shifts to the non-moving party to allege such evidentiary facts that raise a genuine and material controversy as to the issue(s) before the Court. Where the opposing party fails to meet his burden and the Court finds no triable issues, the motion will be granted (Iandoli v. Lange, 35 AD2d 793 [NYAD 1st Dept 1970]). Where the Court determines that a triable issue of fact exists, denial of the motion is the proper course of action (Moskowitz v. Garlock, 23 AD2d 943 [NYAD3d Dept 1965]). [*2]

“A plaintiff establishes a prima facie case … by showing … that insurance coverage existed; that a facially valid claim was presented; and that the claim was not timely denied” (Vinings Spinal Diagnostic, P.C. v. Liberty Mut. Ins. Co., 186 Misc 2d 287, 291 [NY Dist Ct Nassau 2000]). Plaintiff’s proof upon its instant motion consists of an affirmation of counsel and an unverified complaint (both having no probative value as to the relevant facts the Court is searching). It is also supported by a short affidavit of “Ernest Horowitz MD”, who asserts that he is an officer of the plaintiff/assignee. In his affidavit, he declares that the “assertions in his counsel’s affirmation are true and correct”. He states that his knowledge of the facts comes from his “business records, maintained as a matter of practice, by [him], in [his] practice”. The Court does not accept the attempted incorporation by reference by affiant Horowitz (whose burden it is to prove relevant facts upon personal knowledge) of factual allegations contained in plaintiff’s counsel’s affirmation where counsel’s allegations are based upon counsel’s “interview of (unnamed) corporate affiants and defendant’s business records … “. Horowitz’s affidavit does not show upon first-hand knowledge the dates each of the plaintiff’s six purported claim forms were sent to or received by defendant. Although plaintiff’s application contains proofs of six mailings of something, Dr. Horowitz’s affidavit does not prove what was mailed and that same were mailed by him. Dr. Horowitz does not state that no payments have been made by the Defendant within thirty days of the submission of those bills … nor does he show that the defendant did not properly seek additional verification. The Court notes that the plaintiff has not demonstrated the untimeliness of the defendant’s denial. Although the affiant indicates that his file contains certain documents, the affirmation fails to make specific reference to any pertinent exhibits which it may have derived from his file. Dr. Horowitz appears to be a complete “stranger” to the treatment and claim submission in this matter.

Although not pertinent to the Court’s above determination, the Court notes that the lateness of a denial or the absence of a required denial does not prohibit the insurer from raising the defense of lack of coverage based upon the fact or founded belief that the alleged injury did not arise out of an insured incident; in this case an alleged fraud on the part of the assignor (Metro Medical Diagnostics, PC v. Eagle Insurance Co., 293 AD2d 751 [NYAD 2d Dept 751, 2002]; Valley Psychological PC v. Liberty Mutual Insurance Co., 195 Misc 2d 540 [City Ct, Albany 2002]). “The Court of Appeals did not intend the issue of fraud to escape the notice of the court simply because of a late denial” (Valley Psychological PC v. Liberty Mutual Insurance Co., supra at 542). Although there is no application presently before the Court to amend the answer, the unpled defense of fraud is available to a defendant in resisting plaintiff’s summary judgment motion (Rizzi v. Sussman, 9 AD2d 961 [NYAD 2d Dept 1959]).

In addition, the No-Fault Verification of Treatment furnished by plaintiff’s counsel to the Court differs from what was apparently sent to the defendant upon submission of the claim. Furthermore, any deficiencies in the moving papers cannot be remedied on reply as attempted herein. [*3]

Plaintiff’s instant motion seeking summary judgment in its favor is, in all respects, denied. Defendant is awarded costs on this motion.

Dated: ____________

ENTER:

____________________________________

Randy Sue Marber, District Court Judge

cc: Alden Banniettis, Esq.

Samuel K. Rubin, Esq.

[*1]

District Court of Suffolk County, Third District, May 19, 2004

APPEARANCES OF COUNSEL

Carman, Callahan & Ingham, LLP, Farmingdale (Paul A. Barrett of counsel), for defendant.

{**4 Misc 3d at 229} OPINION OF THE COURT

C. Stephen Hackeling, J.

This decision arises out of the commercial claims complaint of plaintiff Dependable Ambulette, Inc., dated March 24, 2003, which was tried on May 6, 2004. The defendant, Progressive Insurance Co., has raised oral, jurisdictional and merit defenses. Written answers are not required pursuant to UDCA 1804-A which dispenses with most rules of “practice, procedure, pleading or evidence” and which requires the claim to be resolved in a manner as to provide “substantial justice” according to the rules of “substantive law.”

The Facts

The undisputed relevant facts are the plaintiff rendered ambulette services on several dozen occasions to Boris Cherkalin between September 30, 2002 and January 4, 2003 and took an assignment of his claim as against the patient’s motor vehicle no-fault insurer Progressive Ins. Co. of New York. Plaintiff billed Progressive $2,600 for said services and received a timely written denial of the claims.

Jurisdictional Defense

The defendant first argues that plaintiff lacks jurisdiction to bring this proceeding pursuant to the provisions of UDCA 1809, which provides: “[n]o corporation . . . and no assignees of any claim shall institute an action or proceeding under this Article . . . .” The defendant submitted the unreported decision of the New York City Court, Judge Pineda-Kirwan, dated April 20, 2004, in support of this position. This decision references an analogous sister statute of the New York City Civil Court Act, section 1809.

While persuasive in a small claims proceeding, defendant’s precedent is inapplicable to a [*2]commercial claim action brought pursuant to article 18-A of the Uniform District Court Act. The jurisdictional limitations and prohibition against assignees is limited to article 18 claims. The subject action is brought under article 18-A (commercial claims), which is a separate and distinct article. The commercial claims article does not bar corporate assignees from instituting an action. It only limits these {**4 Misc 3d at 230}plaintiffs to five actions per month. (See, UDCA 1803-A.) Accordingly, the court finds that plaintiff has jurisdiction to maintain this action.

Are Assigned Ambulette Services Eligible for No-Fault Reimbursement

The dispositive issue presented in this action is whether assigned ambulette services are eligible for reimbursement under the No-Fault Law, Insurance Law § 5102. The facts are not in dispute as the defendant’s only ground for denying payment was stated to be:

“Regulation No. 68 (11 NYCRR 65), [65-3.11] Direct Payments (a),

” ‘An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant or, when appropriate, to the applicant’s parent or legal guardian or to any person legally responsible for the necessities, or upon assignment by the applicant or any of the aforemention persons, shall pay benefits directly to providers of health care services as covered under section 5102 (a)(1) of the Insurance Law, or to the applicant’s employer for loss of earnings from work as authorized under section 5102 (a) (2) of The Insurance Law. Death Benefits shall be paid to the estate of the eligible injured person.’ Since you are not a provider of health care services, you cannot be paid directly by an insurer. Direct payment of the claimed benefits to you is therefore denied. You must seek payment from the applicant and any claims for reimbursement filed by the applicant, will then be considered.”

For services to be reimbursable under New York’s No-Fault Law they must be medically necessary health services as enumerated under Insurance Law § 5102 and subject to the requirements of No-Fault Regulation 68 (11 NYCRR 65-4.15).

Insurance Law § 5102 determines whether a particular service or product purchased is a covered expense eligible for reimbursement under the No-Fault Law. The statute reads as follows:

“All necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental ambulance,{**4 Misc 3d at 231} x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical [*3]remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services . . . For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.” (Insurance Law § 5102 [a] [1].)

The term “any other professional health services” covered under section 5102 (a) (1) (iv) is defined under Regulation 68 (11 NYCRR 65-4.15 [o] [1] [vi]) as follows:

“The term any other professional health services, as used in section 5102 (a) (1) (iv) of the Insurance Law, this Part and approved endorsements, shall be limited to those services that are required or would be required to be licensed by the State of New York if performed within the State of New York. Such professional health services should be necessary for the treatment of the injuries sustained and within the lawful scope of the licensee’s practice. Charges for the services shall be covered pursuant to schedules promulgated under section 5108 of the Insurance Law and Part 68 of this Title (Regulation 83). The services need not be initiated through referral by a treating or practicing physician.”

For a service rendered to constitute a reimbursable health service, it must fall under one of the enumerated categories included as expenses insured pursuant to section 5102 (a) (1) (i), (ii) and (iii), or it must fall under the category of “(iv) any other professional health services” under Regulation 68. To be covered under this category, the service rendered must be a health service licensed under New York law and, when performed, such health service must fall within the lawful scope of the provider’s license. (See Insurance Law § 5102 [a] [1] [iv]; 11 NYCRR 65-4.15 [o] [1] [vi].) Ambulette services are authorized by the New York State Department of Transportation to “[t]ransit disabled persons.” (2003 Ops NY Dept Transp No. 9 [Jan. 16, 2003].) These services do not constitute covered expenses incurred pursuant to section 5102 (a) (1) (i), (ii) or (iii) or “any other professional health services” as defined in section 5102{**4 Misc 3d at 232} (a) (1) (iv) and Regulation 68. The only possible reimbursement for ambulette services would be for “other reasonable and necessary expenses,” up to $25 per day. (See Insurance Law § 5102 [a] [3].)

The defendant argues it is not even liable for the reduced $25 a day exception. It questions whether an ambulette company may receive payment directly from a no-fault insurer pursuant to an assignment of benefits. Prior to April 5, 2002, Regulation 68 permitted assignment to any “provider of services” making no distinction between providers based upon particular categories of reimbursable expenses. The revised Regulation 68 allows direct payments to be made only to “providers of health care services.” (See 11 NYCRR 65-3.11 [a].) Reasonable and necessary expenses are now nonreimbursable. There is no dispute that this claim arose in December of 2002, and the defendant is not a “provider of health care services.” Rather, plaintiff is a section 5102 (a) (1) (iv) other “health service,” which is not covered.

Accordingly, the plaintiff’s complaint is dismissed.

District Court Of Nassau County, Third District,

INDEX NO. 003594/03

Steven M. Jaeger, J.

Plaintiff’s motion for summary judgment and defendant’s cross-motion to compel discovery are decided as follows:

The plaintiff, a health care provider and assignee of no-fault benefits, commenced this action against the defendant, the insurer of the assignor, to recover the first party No Fault Law benefits. In this case, the patient/assignor was injured in a motor vehicle accident on July 19, 2002. Plaintiff submitted the claim on the appropriate forms to defendant on September 9, 2002. Defendant’s denial was dated December 2, 2002.

The defendant’s failure to deny the plaintiff’s claim for no-fault benefits within thirty (30) days of receipt of the proof of claim, and the amount of loss sustained as required by Insurance Law 5106, and 11 NYCRR 65.15[g][3], precludes the defendant from asserting an affirmative defense of denial of benefits on various grounds. Presbyterian Hosp. v. Maryland Cas. Co., 90 NY2d 274 [1997]. Defendant’s late denial form designates assignor’s (Abbott) failure to appear for independent medical examinations on October 25, 2002 and November 8, 2002 as the basis for the claim denial. The first IME was not scheduled until more than 30 days after the claim was received.

In response to this application and in support of defendant’s cross-motion for summary judgment, defendant contends that the insured owner/operator of the car may have possibly staged this as a fraudulent accident with assignor Abbott as a passenger. Defendant further contends that assignor Abbott’s failure to appear for two scheduled independent medical examinations (as stated on defendant’s denial form) was based on indicia of fraud and was for “Examination under Oath”. The latter examination was not requested until December 10, 2002 and the denial forms provided by each party differs as to riders attached.

Defendant’s position appears to be that, (1) the claim denial, despite its express language, is in fact based on fraud and, (2) a claim arising from an insurance fraud scheme is not a covered accident and therefore, the late denial of same would not necessarily be fatal to defendant’s defense. Metro Med. Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 (2d Dept 2002). Defendant’s fraud claim or defense is only substantiated by the unsworn reports of investigators that examined the subrogor’s signatures on forms ostensibly signed after each treatment. The [*2]conclusion is that the treatment forms were signed all at once or in groups. No evidentiary proof was provided, however, in opposition to the motion for summary judgment. The Court also notes that the denial of claim form (NF-10) provided by defendant (and dated March 10, 2003) differs from the one provided by plaintiff (dated December 2, 2002) in that each contains materially different riders. No explanation for this is offered by the defendant. Nor does the defendant explain how alleged fraud in providing medical services constitutes a “non-covered” accident under the applicable no-fault statutes and regulations.

In this case, the defendant notified the plaintiff on or about December 2, 2002 that it was denying benefits based upon a failure to attend IMEs. Pursuant to State Farm v Domotor, 266 AD 2d 219 (2d Dept 1999), the Court finds that this denial excused the plaintiff from further compliance with any further requests or demands from the defendant. “An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of its policy. Rather, the insurance carrier ‘must stand or fall upon the defense upon which it based its refusals to pay’.” 266 AD 2d at 220.

Accordingly, the plaintiff has met their burden in demonstrating a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. Notwithstanding defendant’s late investigations, defendant has not shown the existence of evidentiary facts sufficient to toll the statutory limits for denials of claims. An insurer is required to either pay or deny a claim for medical services rendered under No-Fault within 30 days from receipt of proof of the claim (e.g., the bill), which proof shall include verification (IME) requested by the insurer pursuant to 11 NYCRR §65-3.5, Insurance Law §5106(a); 11 NYCRR §65-3.8(a). This 30 day period may be extended by an insurer’s timely request for further verification of the claim. New York Presbyterian Hospital v. American Transit Insurance Company, 287 AD2d 699, (2d Dept 2001). There is no documentation of timely requests by defendant.

Plaintiff’s motion for summary judgment is granted in the amount of $1,758.40, plus interest at 2% per month from October 9, 2002, together with attorneys’ fees of 20% thereof, not to exceed $850.00. 11 NYCRR §65(17)((b).

Defendant’s cross-motion for an order of preclusion regarding discovery is denied as moot in view of the aforementioned decision.

So Ordered:

Dated: March 29, 2004 District Court Judge

Decision Date: March 29, 2004