Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 23, 2008, deemed from a judgment of the same court entered February 19, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 23, 2008 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $2,856.45.
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This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Judgment modified by reducing the amount of the award to the principal sum of $2,627.90 and by providing that plaintiff's claim for $228.55 for services rendered on February 22, 2006 is severed, so much of the order entered January 23, 2008 as granted plaintiff's motion for summary judgment on the claim for $228.55 is vacated, and the branch of plaintiff's motion which sought summary judgment on that claim is denied; as so modified, judgment affirmed without costs, and matter remanded to the Civil Court for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff's motion for summary judgment on the ground that defendant's verification requests failed to toll the 30-day claim determination periods. With the exception of the claim for $228.55 for medical services provided on February 22, 2006, we agree.
A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ). In the instant case, any deficiency in plaintiff's moving papers regarding proof of mailing of the claim forms was cured by defendant's claim denial forms, and the affidavit of defendant's claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In addition, a review of the record indicates that plaintiff's affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record establishes plaintiff's prima facie entitlement to summary judgment.
In opposition, defendant argued that it timely denied plaintiff's claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers' compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, plaintiff was not entitled to summary judgment upon this claim.
Defendant also opposed plaintiff's motion for summary judgment on the ground that its verification and follow-up verification requests tolled defendant's claim determination periods. However, since defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, as to the remaining claims, defendant failed to timely deny same and is precluded from raising most defenses, with exceptions not here relevant (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 ). Thus, plaintiff was properly granted summary judgment as to the remaining claims. For the foregoing reason, defendant's cross motion for summary judgment was properly denied.
Pesce, P.J., and Rios, J., concur.
Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the judgment, vacate the order entered January 23, 2008, deny plaintiff's motion for summary judgment and grant defendant's cross motion for summary judgment, in the following memorandum.
I need not discuss the factual and procedural history of this case as it has, for the most part, beenaddressed by the majority. Instead, I submit that the majority has erred in its judgment as to a matter of law. It has, in my opinion, misconstrued established principles of common law as well as the Appellate Division's decision in New York & Presbyt. Hosp. v American Tr. Insurance Co. (287 AD2d 699 ). In addition, the majority has misinterpreted Insurance Department Regulations (11 NYCRR) § 65-3.6 (b), the contents and purposes of which will be discussed below.
I should first, however, address the majority's reluctance to require that plaintiff submit a proper and complete motion upon which summary judgment could be granted. I submit that the majority's grant of summary judgment in favor of plaintiff is contrary to the Court of Appeals' holding in Alvarez v Prospect Hosp. (68 NY2d 320 ). In that case, the Court found that a "[f]ailure to make . . . [a] prima facie showing [of entitlement to judgment as a matter of law] requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id. at 324). This well-established principle, with its roots at common law, provides that all assertions made in a summary judgment motion remain unsubstantiated unless they are accompanied by sufficient evidence in admissible form contained within the four corners of the motion papers (see e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 ). In the present case, that principle was not met.
The current state of the law in no-fault cases requires that a plaintiff establish (1) that it mailed a claim, and (2) that payment is overdue. Nothing else. This plaintiff's motion for summary judgment, however, should have been denied inasmuch as its moving papers failed to establish, by a proper affidavit, the mailing of plaintiff's claim forms. The majority of the Appellate Term has often held that the inclusion of an NF-10 denial of claim form in the moving papers is sufficient to establish the mailing of a claim, a proposition with which I have previously disagreed. In the present case, the majority states that "any deficiency in plaintiff's moving papers regarding proof of mailing of the claim forms was cured by defendant's claim denial forms, and the affidavit of defendant's claims representative." What it does not state is that the NF-10 denial of claim forms were not attached to the moving papers, despite the fact that the moving plaintiff, intentionally or otherwise, asserted that such documents were, in fact, included. The majority then searches the record in order to establish mailing and found the NF-10 denial of claim forms in defendant's opposing papers. Indeed, the Court of Appeals, in Winegrad v New York Univ. Med. Ctr. (64 NY2d 851 ), unanimously found that "bare conclusory assertions . . . do not establish that the cause of action has no merit so as to entitle defendants to summary judgment" (id. at 853). Clearly, if the moving papers fail to warrant granting summary judgment, then the court should not look to the opposing papers, as was done here. I have found no opposition to this ...