OLEG BARSHAY DC v. STATE FARM INS COMPANY (2006)

Appeal by defendant from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered March 30, 2005.   The order, insofar as appealed from, as limited by defendant's brief, granted plaintiff's motion for summary judgment.

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 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 2003 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.] ).   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, 820 N.Y.S.2d 679 [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 law requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [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 the sufficiency of the opposition papers (see New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 547, 814 N.Y.S.2d 687 [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 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [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 N.Y.2d 106, 112, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [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 (see Bowery Sav. Bank v. 130 E. 72nd St. Realty Corp., 173 A.D.2d 364, 569 N.Y.S.2d 732 [1991] ).   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 N.Y. Slip Op. 51344[U], 2006 WL 1892345 [App. Term, 2d & 11th Jud. Dists.];  M.G.M. Psychiatry Care P.C. v. Utica Mut. Ins. Co., 12 Misc.3d 137(A), 2006 N.Y. Slip Op. 51286[U], 2006 WL 1865010 [App. Term, 2d & 11th Jud. Dists.];  Vista Surgical Supplies, Inc. v. State Farm Mut. Ins. Co., 12 Misc.3d 134(A), 2006 N.Y. Slip Op. 51189[U], 2006 WL 1750964 [App. Term, 2d & 11th Jud. Dists.];   Vista Surgical Supplies, Inc. v. Metropolitan Prop. & Cas. Ins. Co., 12 Misc.3d 130(A), 2006 N.Y. Slip Op. 51047[U], 2006 WL 1541381 [App. Term, 2d & 11th Jud. Dists.];  First Help Acupuncture P.C. v. State Farm Ins. Co., 12 Misc.3d 130(A), 2006 N.Y. Slip Op. 51043[U], 2006 WL 1541272 [App. Term, 2d & 11th Jud. Dists.];  Careplus Med. Supply Inc. v. State-Wide Ins. Co., 11 Misc.3d 29, 812 N.Y.S.2d 736;  PDG Psychological P.C. v. Utica Mut. Ins. Co., 11 Misc.3d 128(A), 2006 N.Y. Slip Op. 50246[U], 2006 WL 460941 [App. Term, 2d & 11th Jud. Dists.] ), 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., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [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 A.D.3d 512, 818 N.Y.S.2d 583 [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 N.Y. Slip Op. 51425[U], 2006 WL 2035471 [App. Term, 2d & 11th Jud. Dists.];   see also King's Med. Supply v. Kemper Auto & Home Ins. Co., 3 Misc.3d 131(A), 2004 N.Y. Slip Op. 50401[U], 2004 WL 1103683 [App. Term, 2d & 11th Jud. Dists.] ), 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, 781 N.Y.S.2d 819 [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 A.D.2d 751, 752, 741 N.Y.S.2d 284 [2002];  see also State Farm Mut. Auto. Ins. Co. v. Laguerre, 305 A.D.2d 490, 491, 759 N.Y.S.2d 531 [2003] ), it 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 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [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, 781 N.Y.S.2d 819, 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, 809 N.Y.S.2d 765 [App. Term, 2d & 11th Jud. Dists. 2005];  see Rue v. Stokes, 191 A.D.2d 245, 246, 594 N.Y.S.2d 749 [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 A.D.2d 453, 711 N.Y.S.2d 906 [2000] ), the facts established little more than “unsubstantiated hypotheses and suppositions” (Penny v. Pembrook Mgt., 280 A.D.2d 590, 591, 720 N.Y.S.2d 549 [2001] ), a “legally insufficient [basis] to support [a] defendant's fraud allegation” (Amstel Chiropractic v. Omni Indem. Co., 2 Misc.3d 129(A), 2004 N.Y. Slip Op. 50088[U], 2004 WL 419778 [App. Term, 2d & 11th Jud. Dists.] ).

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 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.   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 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.] ) 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 affidavits, 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 A.D.2d 364, 569 N.Y.S.2d 732 [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 even considered by the trial court.   In fact the unpublished decision from the Supreme Court cites to Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [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. Center, 64 N.Y.2d 851 [487 N.Y.S.2d 316, 476 N.E.2d 642] [1985] ),” 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 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [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.”   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 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [emphasis added] ).

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 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 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [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.