A.B. Med. Servs. PLLC v GMAC Ins.

[*1] A.B. Med. Servs. PLLC v GMAC Ins. 2005 NYSlipOp 50602(U) Decided on April 22, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2003-1748 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Marc Louis, Appellants,

against

GMAC INSURANCE, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (A. Fisher Rubin, J), entered on November 20, 2003, which denied their motion for summary judgment.

Order modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon, and upon searching the record, summary judgment is granted in favor of defendant dismissing the causes of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

The motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, in searching the record, the claim by said plaintiff is hereby dismissed. 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 NY2d 854, 871 [*2][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 subsequent to the effective date of the revised regulations. Under the authority of Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d 854, supra), such costs are nonassignable, and the claim by Square Synagogue Transportation Inc. must be dismissed.

Plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that they submitted their claims, 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 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In opposition to said plaintiffs' motion for summary judgment, defendant has failed to raise any triable issue of fact.

Defendant denied the claims submitted by these plaintiffs on the ground that the injuries claimed by plaintiffs' assignor could not have occurred due to the subject motor vehicle accident, based upon an "Injury Potential Analysis" and peer review report. Despite the untimely denial of plaintiffs' claims, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). In the instant case, however, the affidavit submitted by defendant's claims representative was insufficient 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. v Chubb Group of Ins. Cos., 90 NY2d at 199). Moreover, the unsworn "Injury Potential Analysis" did not constitute competent proof in admissible form (see Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [2004] [App Term, 2d & 11th Jud Dists]; Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists]), and defendant failed to proffer an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). Further, the peer review report submitted by defendant in opposition to the motion in support of its defense of a lack of causal nexus between the accident and the injuries claimed by plaintiffs' assignor, was unsworn. Since said report was not in admissible form, it was insufficient to warrant denial of plaintiffs' motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Lvov Acupuncture P.C., and the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents and votes to modify the order and deny plaintiffs' motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiffs' motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (____ Misc 3d ____, 2004 NY Slip Op 24501 [App Term, 2d & 11th Jud Dists]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit which makes reference to such report, are sufficient for the purpose of raising a triable issue of fact. This is especially true where there is an allegation of fraud. Those issues are best left to the trier of fact.

Accordingly, I would modify the order of the lower court and would deny the plaintiffs' motion for summary judgment.
Decision Date: April 22, 2005