DAC Med., PC v Metlife Auto & Home

[*1] DAC Med., PC v Metlife Auto & Home 2018 NY Slip Op 50219(U) Decided on February 14, 2018 Civil Court Of The City Of New York, Bronx County Gomez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2018
Civil Court of the City of New York, Bronx County

DAC Medical, PC / Timothy Mosomillo, D.O., Assignee of Yvette Oriakni, Plaintiff(s),

against

Metlife Auto & Home D/B/A Metropolitan Property and Casualty Insurance Company, Defendant(s).



713876/15



Counsel for Plaintiff: Lewin & Baglio, LLP

Counsel for Defendant: Katz & Associates Attorneys At Law
Fidel E. Gomez, J.

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Saliently, defendant avers that insofar as it properly denied plaintiff's claims for medical services under the no-fault portion of its insured's policy, the instant action must be dismissed. Plaintiff opposes the instant motion, asserting that defendant's own submissions preclude summary judgment and instead warrant summary judgment in favor of plaintiff. For the foregoing reason, plaintiff cross-moves for summary judgment, seeking judgment in its favor for $1,746.71, plus interest, costs, and fees. Defendant opposes plaintiff's cross-motion for the very same reasons it seeks summary judgment in its favor - purported proof beyond a factual dispute that it timely and properly denied plaintiff's claims.

For the reasons that follow hereinafter, defendant's motion is granted, in part, and plaintiff's cross-motion is denied.

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint and the exhibits appended thereto, allege, in relevant part, the following: On August 19, 2014, YVETTE ORIAKNI (Oriakni) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained. Oriakni was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Oriakni assigned to plaintiff. The treatments provided by plaintiff to Oriakni totaled $1,746.71, were covered by defendant's policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act [FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the [*2]existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that

the eligible injured person or that person's assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered

(11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (id.; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider's failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] ["The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated."]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]). Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

However, the foregoing period - within which to deny or pay a claim - can be extended by a proper request for verification (11 NYCRR 65-3.5[b] ["Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms."]), and when such a request is made, "an insurer is not obligated to pay or deny a claim until all demanded verification is provided" (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens at 584 New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 ["Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days."]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700 ["Since the [*3]respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run."]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof of that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and "proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law" (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with "evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue" (St. Vincent's Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 ["However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant's standard office practices or procedures designed to ensure that items were properly addressed and mailed."]; New York and Presbyt. Hosp. at 513 ["However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment on the first cause of action."]), or that denial within the 30 day prescribed by law wasn't given because such period was extended by a request for verification (Nyack Hosp. at 100 ["Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period."]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that an insurer may issue a denial if, more than 120 calendar days after the initial request for [*4]verification, the applicant has not submitted all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that "[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied."]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A), *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases the court held that defendant - the insurer - established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant's business records established defendant's defense - timely denial (id. at 433-434)[FN2] .

Defendant's Motion

Defendant's motion for summary judgment is granted, in part, to the extent of dismissing the portion of the complaint seeking summary judgment and dismissal of plaintiff's claim for medical services provided to Oriakni on September 5, 2014 and October 30, 2014. As will be discussed below, the uncontroverted evidence establishes that with respect to the foregoing claim, plaintiff did not submit it until 45 days after the earliest date of treatment and defendant properly and timely denied it. With respect to the other dates of treatment, while defendant establishes prima facie entitlement to summary judgment upon proof that it denied the claims because it requested verification of said claims, which verification was never provided, plaintiff's evidence - an affidavit denying receipt of the foregoing requests - raises a material issue of fact warranting denial of the remainder of defendant's motion.

In support of its motion, defendant submits an affidavit by Lori Mann (Mann), defendant's Claim Representative, who states, in pertinent part, as follows: Since 2013, Mann has been employed by defendant as a litigation representative at defendant's Troy Facility and has firsthand knowledge of defendant's procedures with respect to no-fault claims and the claims concerning plaintiff and Oriakni. At the Troy Facility, defendant issues both Denial of Claims forms and Verification Request forms. The foregoing forms are generated after claims are submitted and are mailed to the respective service providers on the dates indicated on the respective forms or on the following day. Outgoing mail at the Troy Facility is placed in a reception area where it is then picked up by the United States Postal Service. With respect to the claims made by plaintiff and the Denial of Claims forms and Request for Verification Forms [*5]issued by defendant, Mann indicates that they were created and are maintained by defendant in the ordinary course of its business. Having been assigned to handle the instant claims, Mann describes defendant's denial the following claims and defendant's forms evincing the same.

Defendant received plaintiff's first claim form on April 6, 2015. The dates of service comprising the claim were September 5, 2014 and October 30, 2014 and said claim was denied pursuant to 11 NYCRR 65-1, on grounds that the claim was made more than 45 days after the dates of service undergirding the same. Defendant received the second claim on January 7, 2015. The dates of service were for October 9, through December 9, 2014. On January 8, 2015, defendant issued a request for verification on the foregoing claim and when the same was unanswered, issued another request for verification on February 18, 2015. On May 20, 2015, when no verification was provided, defendant denied the claim. Defendant received plaintiff's third claim on May 7, 2015. The date of service for this claim was April 2, 2015. On May 14, 2015, defendant issued a request for verification on the foregoing claim and when the same remained unanswered, issued another request for verification on June 16, 2015. On September 16, 2015, when no verification was provided, defendant denied the claim. Defendant received plaintiff's fourth claim on February 24, 2015. The dates of service for this claim were December 30, 2014 through January 8, 2015. On March 2, 2015, defendant issued a request for verification on the foregoing claim and when the same was unanswered, issued another request for verification on April 2, 2015. On July 2, 2015, when no verification was provided, defendant denied the claim.

Defendant also submits all of the forms described and incorporated by reference by Mann in her affidavit, which upon review as described by Mann.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment insofar as the foregoing evidence establishes timely and proper denials of plaintiff's claims for failure to adhere to the mandates of the No-Fault Law.

As discussed above, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). Moreover, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens at 649; New York & Presbyt. Hosp. at 493; Nyack Hosp. at 99; Cent. Suffolk Hosp. at 493; Hosp. for Joint Diseases at 534; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days because 11 NYCRR 65-3.5(o) and 11 NYCRR 65-3.8(b)(3) authorize dismissal at the end of the foregoing time period (Hosp. for Joint Diseases at 434; Hempstead Gen. Hosp. at 454; TAM Med. Supply Corp. at *1).

Here, with Mann's affidavit and the forms appended to its moving papers, defendant establishes a timely and proper denial of plaintiff's first claim insofar as it was provided to defendant approximately six months after October 30, 2014 - the last date of service in that claim. Defendant also establishes that it properly denied plaintiff's three remaining claims pursuant to 11 NYCRR 65-3.5(o) and 11 NYCRR 65-3.8(b)(3) inasmuch as despite two requests for verification on each claim, plaintiff failed to proffer the documents requested. For example, plaintiff's second claim was properly denied insofar as on January 8, 2015, defendant issued a request for verification on the foregoing claim and by May 20, 2015, more than 120 days later, plaintiff failed to comply with the foregoing request.

With the exception of the first claim, plaintiff's opposition raises issues of fact with regard to whether defendant did in fact timely and properly deny the claims at issue, such that summary judgment must be denied.

In opposition to defendant's motion and in support of its cross-motion, plaintiff submits two affidavits. The first affidavit is by TIMOTHY MOSOMILLO, D.O. (Mosomillo), owner of plaintiff, who states, in pertinent part, as follows: All of plaintiff's no-fault billing and collection is performed by Mellotech Coorporation (Mellotech). Mosomillo also states that all of the bills [*6]appendeded to plaintiff's papers are accurate, reflecting the services performed, dates, and amounts billed.

The second affidavit is by Michael Malafronte (Malafronte), owner of Mellotech, who states, in pertinent, part as follows: Mellotech is plaintiff's biller, whose responsibilities include generation of plaintiff's bills, mailing the same, responding to verification requests and collecting payments. Mellotech keeps plaintiff's bills in the ordinary course of its business. Malafronte states that he has personal knowledge of the bill generation, mailing and collection procedures employed by Mellotech insofar as he routinely performs the same. With regard to the bills appended to plaintiff's papers, the same are accurate and kept by Mellotech in the ordinary course of its business. Plaintiff's bills are generated by Mellotech using information provided by plaintiff to Mellotech within three weeks of the date of service. Thereafter, the very next day, the bills are mailed to the respective insurance carrier at the address provided by the insured by taking the envelopes containing said bills to the post office. If the insurance carrier fail to contact Mellotech within 30 days of being billed, Mellotech calls the carrier to request payment. With regard to Oriakni's bills for services rendered by plaintiff, bills for services totaling $1746.71 were submitted to defendant and were never paid. Mellotech never received any denials from defendant nor any verification requests.

Plaintiff submits the claim forms/bills referenced by Malafronte in his affidavit and evincing treatment provided by to Oriakni by plaintiff. The first bill is for treatment rendered on September 5, 2014 and October 30, 2014 and is dated March 30, 2015. The second set of bills - 11 in all - are for treatment rendered between October 9, 2014 and December 9, 2014. All the foregoing bills are dated December 22, 2014. The third bill is for treatment rendered between December 30, 2014 and January 8, 2015 and is dated January 19, 2015. The fourth bill is for treatment rendered on April 2, 2015 and is dated July 9, 2015. The fifth bill is for treatment rendered between October 23, 2014 and November 11, 2014 and is dated November 29, 2014.

Based on the foregoing, insofar as Malafronte lays a foundation for the foregoing bills, stating that the bills are mailed to the insurer the day after they are created, the dates on the bills indicating when they were signed are dispositive on the issue of timely submission to the defendant. As noted above, compliance with the technical requirements of the no-fault law are preconditions to payments to a medical provider and, thus, a medical provider's failure to tender a claim and requisite proof to an insurer within 45 days after medical services are rendered authorizes an insurer to deny the claim (Kane at 405; St. Barnabas Hosp. at 734; Sunrise Acupuncture PC at *1).

Here, it is clear that insofar as the first bill was not mailed until March 31, 2015 (the bill is dated March 30, 2015) for treatment rendered in September and October 2014, plaintiff failed to timely submit this bill to defendant. Indeed given the date on the bill, it was not submitted to defendant until 151 days after the latest date of treatment - October 30, 2014. Thus, given the bill's belated submission, it was properly denied and defendant's motion with regard to these claims is granted.

The remainder of defendant's motion must be denied insofar as Mallafronte's affidavit, wherein he states that he never received any requests for verification, raises a question of fact on the issue of denial of claims on that basis. When an insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc. at 434; Hempstead Gen. Hosp. at 454; TAM Med. Supply Corp. at *1). Here, much as in Hosp. for Joint Diseases, defendant, with Mann's affidavit establishes prima facie entitlement to summary judgment because based on her review of defendant's business records, she establishes defendant's defense - timely denial (id. at 433-434). However, Mallafronte's affidavit - wherein he denies that plaintiff received any requests for verification from defendant raises an issue of fact as to whether such requests were mailed and, thus, whether the denial on the failure to provide verification was proper.

Notably, plaintiff's submissions - the bills - indicate that many were untimely submitted, [*7]which would ordinarily be fatal and warrant dismissal of such claims (Kane at 405; St. Barnabas Hosp. at 734; Sunrise Acupuncture PC at *1). However, with regard to these remaining bills, defendant only seeks dismissal for plaintiff's failure to provide verification despite two requests for the same. Defendant does not contend that the remaining bills were untimely submitted and the Court cannot raise said argument sua sponte (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]).

Plaintiff's Cross-Motion

for the reasons that stated above - questions of fact with respect to whether plaintiff received defendant's requests for verification and failed to respond to them - plaintiff's cross-motion for summary judgment must be denied. It is hereby

ORDERED that the plaintiff's claims for medical treatment provided to Oriakni on September 5, 2014 and October 30, 2014 be dismissed. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon all plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated: February 14, 2018

HON. FIDEL E. GOMEZ, JCC Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that "[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law."

Footnote 2: It bears mentioning that the court's reasoning in Hosp. for Joint Diseases - that "[p]ersonal knowledge of [defendant's] documents, their history, or specific content are not necessarily required of a document custodian" (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment - is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, "[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files" (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).