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

[*1] A.B. Med. Servs. PLLC v Encompass Ins. 2005 NY Slip Op 51892(U) [10 Misc 3d 127(A)] Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: November 4, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2004-1536 K C

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 Aleksandr Krasnik, Appellants,

against

Encompass Insurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered on September 10, 2004. The order, insofar as appealed from, denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim's Acupuncture P.C. and Square Square Transportation, Inc.

Order, insofar as appealed from, unanimously modified by granting the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Daniel Kim's 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 cause of action by plaintiff Square Synagogue Transportation Inc.; as so modified, affirmed without costs.

Appeal by plaintiff Somun Acupuncture P.C. unanimously dismissed.

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 Daniel Kim's Acupuncture P.C., established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amounts of the losses 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]). It is uncontroverted on the record that defendant failed to pay or deny the claims of said plaintiffs within the 30-day period, and it is accordingly precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the court below properly determined that defendant's failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms in any event constitutes a waiver of any defenses with respect thereto (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

However, an untimely denial does not preclude defendant from asserting a lack of coverage defense on the ground 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]), or that the collision was in furtherance of an insurance fraud scheme (see Central Gen. Hosp., 90 NY2d at 199; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists]). Defendant's submissions in the instant case, consisting of, inter alia, excerpts from an examination under oath taken of plaintiffs' assignor and the affidavit of its claim representative were insufficient to demonstrate that the insurer's defense was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp., 90 NY2d at 199; see also A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U], supra).

Accordingly, since defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557 [1980]), the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., and Daniel Kim's Acupuncture P.C. is [*3]granted, and the matter is remanded for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellant, Somun Acupuncture P.C., the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: November 04, 2005