Reset A A Font size: Print

Supreme Court, Appellate Term, New York.

A.B. MEDICAL SERVICES PLLC, D.A.V. Chiropractic P.C., Daniel Kim's Acupuncture P.C., Somun Acupuncture P.C., Square Synagogue Transportation Inc., a/a/o Miron Zayderman, Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Respondent.

Decided: January 20, 2005

Present:  PESCE, P.J., PATTERSON and RIOS, JJ. Amos Weinberg, Great Neck, for appellants. Stern & Montana, LLP, New York City (Richard Montana of counsel), for respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on January 7, 2004, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

 In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care providers established a prima facie entitlement to summary judgment by proof of submission of the statutory claim forms, 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 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.] ).   Furthermore, defendant's delay letters, acknowledging receipt of the bills submitted by plaintiff Daniel Kim's Acupuncture P.C. totaling $1,860.56, adequately established that said plaintiff sent, and that defendant received, these respective claims (see A.B. Med. Servs. v. N.Y. Cent. Mut. Fire Ins. Co., 3 Misc.3d 136(A), 2004 N.Y. Slip Op. 50507[U], 2004 WL 1302031 [App. Term, 2d & 11th Jud. Dists.] ).   There was also proper proof of mailing of the claim for $935 submitted by plaintiff Somun Acupuncture P.C. (see Amaze Med. Supply v. Allstate Ins. Co., 3 Misc.3d 133(A), 2004 N.Y. Slip Op. 50447[U], 2004 WL 1197345 [App. Term, 2d & 11th Jud. Dists.] ).

 While an insurer's failure to timely pay or deny the claim within the 30-day statutory period precludes it from asserting most defenses (see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 282, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997] ), the apparently timely denial of plaintiff A.B. Medical's claim for $1,972.08 does not relieve defendant from the necessity of submitting proof in admissible form in opposition to plaintiff's motion for summary judgment (see e.g. A.B. Med. Servs. PLLC v. Lumbermens Mut. Cas. Co., 4 Misc.3d 86, 781 N.Y.S.2d 818 [App. Term, 2d & 11th Jud. Dists. 2004] ).

 The court denied plaintiffs' motion for summary judgment on the ground that plaintiffs did not submit admissible proof authenticating the signature of plaintiffs' assignor on the assignment forms.   However, the lack of authentication of the assignor's signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. PLLC v. Nationwide Mut. Ins. Co., 6 Misc.3d 70, 792 N.Y.S.2d 289, 2004 N.Y. Slip Op. 24506 [App. Term, 2d & 11th Jud. Dists.] ).   Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant's failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id.;  New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 A.D.3d 640, 779 N.Y.S.2d 548 [2004];  Presbyterian Hosp. v. Aetna Cas. & Sur. Co., 233 A.D.2d 433, 650 N.Y.S.2d 602 [1996];  Park Health Ctr. v. Eveready Ins. Co., 2001 N.Y. Slip Op. 40665[U], 2001 WL 1807733 [App. Term, 2d & 11th Jud. Dists.] ).

We note that the revised insurance regulations, applicable to claims submitted on or after April 5, 2002, “no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11[a];  Insurance Law § 5102[a][1] )” (Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 871, 768 N.Y.S.2d 423, 800 N.E.2d 728 [2003] ).   Accordingly, while “[s]uch reasonable and necessary expenses remain reimbursable (see Insurance Law § 5102[a][3] ) ․ [they are] nonassignable” (id. ).   The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs prior to the effective date of the revised regulations.

 Despite its untimely denial of most of plaintiffs' claims, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 201, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] ).   The affidavit submitted by defendant's litigation coordinator, and the accompanying examinations under oath, were sufficient to demonstrate that defendant's denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp., 90 N.Y.2d at 199, 659 N.Y.S.2d 246, 681 N.E.2d 413).   Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ), plaintiffs' motion for summary judgment was properly denied.