T&G Med. Supplies, Inc. v State Farm Mut. Auto. Ins. Co.

[*1] T&G Med. Supplies, Inc. v State Farm Mut. Auto. Ins. Co. 2005 NY Slip Op 50636(U) Decided on February 4, 2005 Civil Court Of The City Of New York, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 4, 2005
Civil Court of the City of New York, New York County

T&G Medical Supplies, Inc., as assignee of ZAFAR RUZIMUKHAMEDOV, Plaintiff

against

State Farm Mutual Automobile Ins. Co., Defendant



18739/2003



For Plaintiff

Leon Kucherovsky Esq.

212 West 35th Street, New York, NY 10001

For Defendant

Megan M. Marchick Esq.

Melli, Guerin & Melli

17 Battery Place, New York, NY 10004

Lucy Billings, J.

Plaintiff provider of medical supplies sues to recover insurance benefits under NY Ins. Law § 5106(a) for nerve stimulating electrodes used by AR Medical Art, P.C., in treating the insured for injuries sustained in a motor vehicle collision. Plaintiff claims the insured assigned it his rights to insurance coverage for these medical supplies. Plaintiff moves for summary judgment on the claim. Defendant, without opposition from plaintiff, cross-moves for summary judgment dismissing the action. For the reasons explained below, the court grants defendant's motion. C.P.L.R. § 3212(b).

I. PLAINTIFF'S PRIMA FACIE CLAIM FOR FIRST PARTY NO-FAULT

INSURANCE BENEFITS

To recover insurance benefits under New York's "No-Fault" Insurance Law for medical expenses arising from a motor vehicle collision, plaintiff must establish "the fact and amount of loss sustained." NY Ins. Law § 5106(a). See, e.g., New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 (2d Dep't 2004); Damadian MRI in Garden City v. Windsor Group Ins., 2 Misc 3d 138, 2004 NY Slip Op 50262 (App. Term 2d Dep't 2004); Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51700 (App. Term 2d Dep't 2003). For plaintiff, a provider of medical supplies, to establish that it sustained a loss covered by defendant insurer through admissible evidence, plaintiff must present, in admissible form, the treated patient's assignment of coverage for the treatment expenses to the provider. C.P.L.R. § 3212(b); Rukaj v. Roth, 237 AD2d 503 (2d Dep't 1997); Columbus Natl. Leasing Corp. v. Perkin-Elmer Corp., 177 AD2d 1035, 1036 (4th Dep't 1991); Shaw, Licitra, Eisenberg, Esernio & Schwartz v. Friedman, 170 AD2d 1048, 1049 (4th Dep't [*2]1991); BKS Assocs. v. Kenny, 151 AD2d 535 (2d Dep't 1989). See, e.g., Colbourn v. ISS Intl. Serv. Sys., 304 AD2d 369, 370 (1st Dep't 2003); McDonald v. Tishman Interiors Corp., 290 AD2d 266, 267 (1st Dep't 2002); Seoulbank, NY Agency v. D & J Export & Import Corp., 270 AD2d 193, 194 (1st Dep't 2000).

An assignment is a contract, which is ineffective without a signature, which in turn must be attested to. Acevedo v. Audubon Mgt., 280 AD2d 91, 95 (1st Dep't 2001); Fields v. S & W Realty Assoc., 301 AD2d 625 (2d Dep't 2003). This requirement is not onerous: the provider's personnel who obtain the signed assignment at the provider's facility can authenticate the patient's signature. Regardless of summary judgment standards, an assignee claiming insurance benefits must submit to the insurer "a properly executed assignment." 11 N.Y.C.R.R. § 65-3.11(b)(2).

The assignment also confers standing on plaintiff to sue based on defendant's obligation to pay under an insurance policy issued to plaintiff's assignor: a related element fundamental to plaintiff's claim. E.g., Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 (2d Dep't 1999); Bailey v. Allstate Ins. Co., 243 AD2d 520, 521 (2d Dep't 1997). If the insured patient, the assignor, had no right to coverage for medical supplies because he never received them or incurred any obligation to pay the supplier for them, he had no rights to assign the supplier. The supplier, the assignee, stands in no better position than the assignor: the assignor assigns no more than he has, and the assignee has no more right or claim than he had. Matter of International Ribbon Mills, 36 NY2d 121, 126 (1975); Trisingh Enters. v. Kessler, 249 AD2d 45, 46 (1st Dep't 1998); Federal Fin. Co. v. Levine, 248 AD2d 25, 28 (2d Dep't 1998). Hence plaintiff took its assignment subject to all defendant's defenses against the assignor. Trisingh Enters. v. Kessler, 249 AD2d at 46.

Here, not only does plaintiff's witness fail to identify the assignment contract attached to his affidavit or the insured's signature on the form; this alleged assignment of benefits fails to specify (1) the assignee, that it is in fact plaintiff, (2) the date the collision from which the expenses arise occurred, or (3) the date of the assignment. Thus, even if the contract, the assignor's signature, and the assignee were identified, nothing indicates that the assignment even postdated the precipitating occurrence, let alone that the assignment pertained to expenses arising from that occurrence.

Plaintiff's failure to identify the assignment contract or the insured patient's signature is hardly surprising, because here, the insured was not plaintiff's patient, but, by plaintiff's admission, the patient of AR Medical Art, to which plaintiff provided the supplies for which it seeks coverage. The insured patient, the assignor, did not receive the supplies; AR Medical Art did. The assignor did not incur the obligation to pay for them; AR Medical Art did. The insured patient had no right to coverage for supplies he did not receive from plaintiff and was not obligated for; therefore he had nothing to assign plaintiff.

Given the omissions and discrepancies in the claim that plaintiff submitted to defendant and that forms the basis for plaintiff's claim here, plaintiff has failed to submit a complete claim. 11 N.Y.C.R.R. §§ 65-3.4(c), 65-3.11(b). See, e.g., Ocean Diagnostic Imaging P.C. v. State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53, 54 (App. Term 2d Dep't 2004); Adam's Med. Supplies v. Windsor Group Ins. Co., 3 Misc 3d 126, 2004 NY Slip Op 50310 (App. Term 2d Dep't 2004). A complete claim establishes the "particulars of the nature and extent of the injuries and [health benefits] received." 11 N.Y.C.R.R. § 65.1-1; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701 (App. Term 2d Dep't 2003) (emphasis added). Without the assignee's name, the claim does not show the party that ultimately incurred the claimed expenses and thus shows no injury. 11 N.Y.C.R.R. § 65.1-1; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. See, e.g., Colbourn v. ISS Intl. Serv. Sys., 304 AD2d at 370.

The defects in plaintiff's assignment form, lacking not only the name of any assignee, but other essential facts as to whether the claimed expenses arose from an insured occurrence, at minimum require the denial of plaintiff's motion for summary judgment. Moreover, insofar as [*3]plaintiff's own documents supporting its claim reveal that the insured was the patient of AR Medical Art, not plaintiff, and that plaintiff provided the claimed covered supplies to AR Medical Art, not the insured, they affirmatively raise factual issues as to whether the assignor received the supplies and thus was entitled to coverage for them. Amaze Med. Supply v. Eagle Ins. Co., 3 Misc 3d 130, 2004 NY Slip Op 50389 (App. Term 2d Dep't 2004); King's Med. Supply v. Allstate Ins. Co., 2 Misc 3d 140, 2004 NY Slip Op 50280 (App. Term 2d Dep't 2004); Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 139, 2004 NY Slip Op 50279 (App. Term 2d Dep't 2004). The deficiencies and inconsistencies in plaintiff's claim, themselves introducing factual issues, in sum, preclude summary judgment in plaintiff's favor. E.g., King's Med. Supply v. Allstate Ins. Co., 2 Misc 3d 140, 2004 NY Slip Op 50280; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51700; S & M Supply Inc. v. Geico Ins., 2003 WL 21960343 at *1, 2003 NY Slip Op 51192 (App. Term 2d Dep't July 9, 2003); Park Health Ctr. v. Green Bus Lines Inc., 2002 WL 416484 at *1, 2002 NY Slip Op 40029 (App. Term 2d Dep't Jan. 11, 2002). The further issue is whether any of these defects requires outright dismissal of plaintiff's action.

II. DISMISSAL

A.LACK OF COVERAGE

Plaintiff mailed its charges for the supplies to defendant February 11, 2003. Defendant acknowledges receiving the bill February 13, 2003.Within 30 days after a claimant submits its claim for insurance coverage of medical expenses arising from a motor vehicle collision, an insurer must pay or deny the claim. 11 N.Y.C.R.R. § 65-3.8(a)(1); Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 278 (1997); Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 200 (1997); New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584 (2d Dep't 2002); Bonetti v. Integon Natl. Ins. Co., 269 AD2d 413, 414 (2d Dep't 2000). The insurer may delay payment or denial by requesting verification of the claim from the claimant or a third party. Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d at 279; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d at 584; New York & Presbyt. Hosp. v. American Tr. Ins. Co., 287 AD2d 699, 700 (2d Dep't 2001). To suspend the 30 day period for payment or denial, the insurer must request verification within 15 days after receiving the completed claim, by forwarding the prescribed form to the party from whom verification is sought. 11 N.Y.C.R.R. § 65-3.5(b); Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d at 280-81; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d at 584; Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11, 16 (2d Dep't 1999).

Defendant did not pay or deny plaintiff's claim within 30 days. Nor did defendant request verification, regarding the assignment, the insured's receipt of the supplies for which plaintiff claimed coverage, or any other facts, within 15 days. Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. Defendant's employee responsible for plaintiff's claim attests that, instead, defendant sent a letter dated February 27, 2003, notifying plaintiff: that we are investigating the circumstances of this accident, as well as your patient's eligibility for No-Fault benefits under our policy of insurance. As a result, all bills submitted . . . are being delayed pending the outcome of this investigation.

Aff. of Jason Fortier, Ex. D (emphasis added).

At an examination under oath August 11, 2003, plaintiff's president and sole owner testified that plaintiff provides nerve stimulation electrodes "to the medical facility where the patient goes for treatment," Aff. of Megan M. Marchick, Ex. K at 50, which is electrical stimulation "in conjunction with physical therapy performed at the doctor's office"; plaintiff does not provide the supplies or treatment to patients. Id. at 72. Defendant subsequently denied plaintiff's claim because the injured person was not covered under defendant's insurance policy.

If the insurer fails to deny a claim timely or to suspend the 30 day time frame by timely and properly requesting verification, the insurer is precluded from later disclaiming liability [*4]based on breach of a policy condition or on exclusion from coverage. Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d at 282-83; Country-Wide Ins. Co. v. Zablozki, 257 AD2d 506, 507 (1st Dep't 1999); New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d at 584; Bonetti v. Integon Natl. Ins. Co., 269 AD2d at 414. These disclaimers are distinguished from a disclaimer based on lack of coverage because no policy is in effect covering the injured person or the incident causing the injury, a defense that is not precluded. 11 N.Y.C.R.R. § 65-3.8(e); Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d at 283; Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d at 199-200; Zappone v. Home Ins. Co., 55 NY2d 131, 137-38 (1982); Bonetti v. Integon Natl. Ins. Co., 269 AD2d at 414.

Although defendant's investigation yielded plaintiff's admission that the insured assignor did not receive the supplies for which plaintiff claims coverage, the consequent lack of coverage for the supplies is not because of the absence of a policy covering the assignor or the vehicle or collision involved. While defendant might argue that because plaintiff's admission demonstrates that the treatment provider, AR Medical Art, incurred the expense for the supplies, the injured party is AR Medical Art, which is not covered by a policy from defendant, the court need not reach that issue.

Regardless of defendant's investigation, plaintiff's claim itself establishes the absence of injury to plaintiff's assignor and the absence of a precipitating vehicle collision. To the extent waiver rules preclude defenses based on defects in the claim not timely raised in the claims process, if plaintiff has injected a fact constituting a complete defense, it estops plaintiff from invoking waiver to avoid that defense. Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. Where defendant demonstrates, through its own evidence or plaintiff's, that the claimed injury does not arise from an insured incident, this defense is not precluded by the failure to deny the claim or request verification within the requisite periods. Ocean Diagnostic Imaging P.C. v. State Farm Mut. Auto. Ins. Co., 5 Misc 3d at 54; A.B. Med. Servs. PLLC v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 129, 2004 NY Slip Op 50638 (App. Term 2d Dep't 2004); A.B. Med. Servs. PLLC v. State Farm Mut. Auto. Ins. Co., 3 Misc 3d 139, 2004 NY Slip Op 50575 (App. Term 2d Dep't 2004).

B.LACK OF STANDING

These and the other deficiencies in the assignment of benefits to plaintiff, moreover, establish plaintiff's lack of standing to sue, C.P.L.R. § 3211(a)(3); King's Med. Supply v. Allstate Ins. Co., 2 Misc 3d 140, 2004 WL 829673 at *1 (App. Term 2d Dep't Apr. 9, 2004); Rehab. Med. Care of NY v. Travelers Ins. Co., 188 Misc 2d 176, 177 (App. Term 2d Dep't 2001), which, unlike other defenses, e.g., C.P.L.R. § 3211(a)(5) and (8), is not a waivable defense and may be raised by the court sua sponte. Stark v. Goldberg, 297 AD2d 203, 204 (1st Dep't 2002); Axelrod v. New York State Teachers' Retirement Sys., 154 AD2d 827, 828 (3d Dep't 1989). Regardless whether defendant has objected to plaintiff's standing, plaintiff may not proceed without it, because its absence negates the court's authority to adjudicate the litigation. Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 769 (1991); Stark v. Goldberg, 297 AD2d at 204; Axelrod v. New York State Teachers' Retirement Sys., 154 AD2d at 828. The court has no power to act and to right a wrong unless plaintiff's rights are affected. Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 772-73.

Because the insured assignor did not receive the supplies for which plaintiff claims coverage and did not incur any obligation to pay for them, only AR Medical Art did, the assignor never was injured by defendant's denial of reimbursement and never would have been, even without the assignment. New York State Assn. of Nurse Anesthetists v. Novello, 2 NY3d 207, 214 (2004); Axelrod v. New York State Teachers' Retirement Sys., 154 AD2d at 828. Before executing the assignment, he had no stake in pursuing a claim for insurance coverage for the supplies. Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 772. Thus he had no claim of injury or right to compensation to assign plaintiff. Matter of International Ribbon Mills, 36 NY2d at 126; Trisingh Enters. v. Kessler, 249 AD2d at 46; Federal Fin. Co. v. Levine, 248 AD2d at 28. [*5]

Plaintiff's remedy to secure payment for the supplies is against AR Medical Art. If AR Medical Art in turn passes the charges for the supplies along to its patient, then he may seek coverage of those expenses from his insurer or assign this right to AR Medical Art. The fundamental purpose of New York's "No-Fault" Insurance Law is to permit persons injured in a motor vehicle collision, not medical services providers in the first instance, to receive reimbursement for resultant medical expenses. NY Ins. Law art. 51; Oberly v. Bangs, 96 NY2d 295, 296 (2001); Argentina v. Emery World Wide Delivery, 93 NY2d 554, 561, 563 (1999); Walton v. Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 (1996). If injured persons free themselves from payment for those expenses by assigning their right to reimbursement to their services provider, that assignment accomplishes the statutory purpose. The assignment here did not accomplish that purpose. Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 774. It purported to give the provider a right to reimbursement that the patient never had nor needed. The principle of standing prohibits precisely what plaintiff seeks to accomplish here: as the patient assignee, pursuing another party's claim that the patient was prohibited from doing in the first instance. Id. at 773.

Given the effect of standing on plaintiff's right of access to the court, standing is a threshold determination, and plaintiff bears the burden to establish standing to adjudicate the claim presented. Id. at 769. In these actions where plaintiff seeks to establish that it sustained a loss through the provision of medical services to a patient covered by defendant insurer, a treated patient's valid assignment of coverage for the treatment expenses to the provider is key to standing.

C.THE ASSIGNEE'S BURDEN TO ESTABLISH STANDING

As shown, if the assignment is ineffective, the claimant lacks coverage by the assignor's insurance, a defense not precluded by an untimely denial. Because the assignee has no standing as a plaintiff in litigation without an effective assignment, plaintiff has the burden to establish an effective assignment throughout the litigation, as part of plaintiff's prima facie case, whether or not defendant has raised the lack of an effective assignment, and at any stage. Part of showing the "loss sustained" is showing that the assignor and hence the assignee of the claim sustained a loss at all. NY Ins. Law § 5106(a). See, e.g., New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d at 641; Damadian MRI in Garden City v. Windsor Group Ins., 2 Misc 3d 138, 2004 NY Slip Op 50262; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51700.

Submission to the insurer of a claim with an assignment has been analogized to submission of a bill establishing an account stated. Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. Yet if a bill does not indicate who it is from (the creditor), or whom it is to (the debtor), or who is obligated to pay whom, the bill does not establish an account stated between the creditor and debtor, regardless whether the debtor has objected. E.g., Schneider Fuel Oil v. DeGennaro, 238 AD2d 495, 496 (2d Dep't 1997); Maines Paper & Food Serv. v. Restaurant Mgt., 229 AD2d 748, 750 (2d Dep't 1996). Likewise, if the assignment does not indicate who the insured-assignor is, or who the claimant-assignee is, or who claims coverage under whose insurance policy, the claim is not established, regardless whether defendant insurer has raised the defect. See, e.g., Colbourn v. ISS Intl. Serv. Sys., 304 AD2d at 370. It is impossible for the insurer to acquiesce to the correctness of missing information. See Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. 1.Prior Authority

The principal decision relied on to relieve plaintiff from the standing requirement is Presbyterian Hosp. in City of NY v. Aetna Cas. & Sur. Co., 233 AD2d 433 (2d Dep't 1996). First of all, this decision did not conclude that the plaintiff had satisfied its prima facie burden to obtain summary judgment in the plaintiff's favor, but denied the defendant summary judgment. One of the defendant's grounds that was insufficient for summary dismissal was the patient's "defective" assignment. Id. The decision indicates neither what the defect was, nor whether it [*6]even was related to the assignor's signature or the specification of assignor, assignee, and occurrence. A "defect" is not necessarily a substantive omission and is less likely inadmissible form. More significantly, the defendant did not bear the burden to present the assignment in admissible form as part of its prima facie defense.

This decision in turn relies on St. Clare's Hosp. v. Allcity Ins. Co., 201 AD2d 718 (2d Dep't 1994), and Fabian v. Motor Veh. Acc. Indem. Corp., 111 AD2d 366 (2d Dep't 1985). The more recent of the two, where the defendant contended the claim was deficient and lacking specificity, provides no detail as to the deficiency or there, whether it was related even to an assignment. St. Clare's Hosp. v. Allcity Ins. Co., 201 AD2d at 720. The earlier decision simply held, after trial, that the defendant's disclaimer of coverage was invalid because the disclaimer did not specify its basis: the insured's noncooperation. Fabian v. Motor Veh. Acc. Indem. Corp., 111 AD2d at 367.

A.B. Med. Servs. v. CNA Ins. Co., 1 Misc 3d 137, 2004 NY Slip Op 500061 (App. Term 1st Dep't 2004), taking another leap from St. Clare's Hosp. v. Allcity Ins. Co., 201 AD2d at 720, held that defendant, by failing to deny the claim timely, waived the absence of signatures, again on the claim forms, again without indication that the absent signatures related to any assignment. Omissions in the claim forms are distinct from plaintiff's failure to establish, via admissible evidence. that plaintiff is the party that sustained the loss.

This decision in turn relies on Mt. Sinai Hosp. v. Triboro Coach Inc., 263 AD2d at 17, where the defendant's challenges to the claim forms included lack of medical information as well as absence of signatures. The primary ground for affirming summary judgment to the plaintiff, moreover, was the defendant's failure to raise the challenges before the lower court. Reference to the failure also to raise the insurer's challenges within the 10 days for requesting verification, the secondary ground, reveals that any challenges waived in the claims process plausibly relate only to the medical information. 11 N.Y.C.R.R. § 65.15(d)(2) (1999). In fact, where the evidence required for plaintiff to prevail on summary judgment is equated to the evidence required for a complete claim to an insurer, whether or not defendant is precluded from presenting its defense, the defense and evidence at issue relate to the claimed expenses' medical necessity. See Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. 2.The Fallacies in Applying That Authority

This action dramatically illustrates why an effective assignment must be established in the litigation, if not in the claims process. Here, even had the insurer requested verification of the assignment, the insured's signature on the assignment contract, the assignee's identity, and the dates of the assignment and of the collision precipitating the expenses, these bare details likely would not have revealed that the insured was not the claimant's patient to whom the claimant provided anything. See New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d at 641. Defendant would not have known of the "discrepancy" and the consequent absence of any "loss sustained." Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128, 2003 NY Slip Op 51701. Were plaintiff required, for summary judgment, as well as for trial, to authenticate the assignment's signature, to render the document both admissible and effective, and thus attest to familiarity with the assignor's signature, Acevedo v. Audubon Mgt., 280 AD2d at 95; Seoulbank, NY Agency v. D & J Export & Import Corp., 270 AD2d at 194; Fields v. S & W Realty Assoc., 301 AD2d 625, the scheme more likely would be exposed: Q.Do you ever have any contact at all with the patient?A.No.

Marchick Aff., Ex. K at 50.

Had defendant not delayed to conduct its investigation through an examination under oath, but instead met the deadlines, the insurer would have either (1) requested and received verification of the assignment's components that were adequate on their face or (2) denied the claim without specifying inadequacies in the assignment document. See New York Hosp. Med. [*7]Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d at 641. Without requiring plaintiff to set forth basic evidence for trial or summary judgment, see, e.g., McDonald v. Tishman Interiors Corp., 290 AD2d at 267, and barring the court from unearthing fundamental facts establishing standing, the contortion of the statutory scheme that easily could have happened here will happen.

Since here, the record does conclusively establish that plaintiff is without a claim and is in no position even to raise a factual issue requiring trial, the court grants defendant's unopposed summary judgment motion and dismisses this action. C.P.L.R. § 3212(b); Hospital for Joint Diseases v. Allstate Ins. Co., 5 AD3d 441, 442 (2d Dep't 2004). Simply stated, since defendant's policy covering expenses incurred by plaintiff's assignor "was never intended to provide coverage" for expenses incurred in a transaction between two other parties, plaintiff and AR Medical Art, "coverage could not be created" by defendant's late disclaimer. Bailey v. Allstate Ins. Co., 243 AD2d at 521.

DATED: February 4, 2005

______________________________

LUCY BILLINGS, J.C.C.