Sabodash v Hereford Ins. Co.

[*1] Sabodash v Hereford Ins. Co. 2021 NY Slip Op 51099(U) Decided on November 19, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2021
Civil Court of the City of New York, Bronx County

Valeriy Sabodash, M.D., AS ASSIGNEE OF STEAVEN MERCEDES, Plaintiff(s),

against

Hereford Insurance Company, Defendant(s).



Index No: CV-714348/19



Attorney for plaintiff: Gabriel & Moroff, PC

Attorney for defendant: The Law Offices of Rubin & Nazarian
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. Defendant avers that inasmuch as it timely and properly denied plaintiff's claims for medical services under the no-fault portion of its policy, on grounds that it did not insure any of the vehicles involved in the assignor's accident, the instant action must be dismissed. Plaintiff opposes the instant motion, asserting that insofar as defendant's submissions fail to establish that it did not insure the vehicles involved in the assignor's accident with admissible evidence, defendant fails to establish prima facie entitlement to summary judgment. Plaintiff also cross-moves seeking summary judgment, averring that defendant's very own denial forms establish that it timely submitted the instant claim and is now overdue.

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

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: STEAVEN MERCEDES (Mercedes) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained. Mercedes 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 Mercedes [*2]assigned to plaintiff. The treatments provided by plaintiff to Mercedes totaled $1,789.19, 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 admissible 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 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. The eligible injured person or that person's legal representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the self-insurer as soon as reasonably practicable but, in no event, later than 90 days after [*3]the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

(11 NYCRR 65-2.4[c][FN2] ). 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 (Presbyt. Hosp. in City of New York, 210 AD2d at 211; 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 generally warrants denial of said claims [*4](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 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]; Nir v MVAIC, 17 Misc 3d 134[A], *1-2 [App Term 2007]). However, 11 NYCRR 65-2.4[c] and 11 NYCRR 65-1.1 state that the

time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person's representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

Accordingly, when the proponent of a belated claim establishes that the delay is reasonably justifiable, the insurer may not deny the same (Matter of Med. Socy. of State v Serio, 100 NY2d 854, 862-863 [2003] ["At the same time, the new regulations relax the standard for accepting late filings, replacing the previous rule that late filings were permitted only when written proof showed that compliance with a deadline was 'impossible' (11 NYCRR 65.11 [m] [2], [3]; 65.12), with a standard excusing a missed deadline when there is a "clear and reasonable justification" for the delay (11 NYCRR 65-2.4 [b], [c]; 65-1.1)."]). In such cases, plaintiff must assert its reasonable justification with its belated submission (Nir at *2 ["The record further reveals that, in opposition to MVAIC's cross motion seeking summary judgment, plaintiff failed to proffer admissible evidence demonstrating that there was a 'reasonable justification' for the submission of the claim more than 130 days after the services were rendered."]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [App Term 2007] ["Even assuming, arguendo, that plaintiff's inadvertent submission of the claim to State Farm initially justified its delay in submitting the claim to MVAIC (see 11 NYCRR 65-3.5 [1]), plaintiff failed to address, much less provide a 'reasonable justification' for the 3½-month delay between December 18, 2003, when plaintiff's counsel advised plaintiff that there was no coverage, and plaintiff's submission of the claim to MVAIC on March 26, 2004."]; see Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp., 20 Misc 3d 140[A], *1 [App Term 2008]; Elm Med., P.C. v MVAIC, 20 Misc 3d 145[A], *1 [App Term 2008]).

Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 [*5]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; 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 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 [*6]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 [*7]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 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)[FN3] .

It is well settled that a party's burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form "of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] ["Here, the deposition testimony of AIC's president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of delivery."]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not "requir[e] that an affidavit of mailing must state either that it was the affiant's duty to ensure compliance with the insurer's standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed."]). Notably, an affidavit of mailing, which attests to the practice of mailing documents must contain information with respect to how the items mailed were accurately addressed and the absence of such information renders the affidavit inadequate (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128(A), *1 [App Term 2012] ["In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by defendant's contractor was designed to ensure that the IME notices were addressed to the proper parties and properly mailed." (internal quotation marks omitted)]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007] ["The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant's office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed."]).

In New York, no-fault benefits, also known as first party benefits are both promulgated and governed by the Insurance Law and the Comprehensive Motor Vehicle Insurance Reparations Act (CMVIRA) (11 NYCRR 65-1.1, et seq).

Insurance Law § 5103 (a) and (a)(1) state, in relevant part that [e]very owner's policy of liability insurance issued on a motor vehicle . . . shall be liable for; the payment of first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.

First party benefits "means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle" (Insurance Law § 5102[b]). Basic economic loss "means, up to fifty thousand dollars per person of" medical expenses and lost earnings (Insurance Law § 5102[a]].

11 NYCRR 65-1.1 states that [e]very owner's policy of liability insurance issued in satisfaction of the minimum requirements of article 6 or 8 of the Vehicle and Traffic Law and article 51 of the Insurance Law and every policy issued in satisfaction of the minimum requirements of article 44-B of the Vehicle and Traffic Law shall contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement (New York).

The foregoing insurance is required in all policies issued in New York after January 26, 2011 (11 NYCRR 65-1.1[b][1] ["An insurer shall provide . . . The Mandatory Personal Injury Protection Endorsement (New York) to every insured with respect to a policy issued, renewed, modified, altered or amended on or after January 26, 2011."]). Per the relevant endorsement, an insurer "will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle" (11 NYCRR 65-1.1[d]). Per the endorsement, "[b]asic economic loss shall consist of medical expense, work loss, other expense[s.] (id.). An eligible person is defined as the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle (11 NYCRR 65-1.1[d]).

Based on the foregoing, it is clear, that first party or no-fault benefits are only available when the injuries claimed arise from an accident involving an insured vehicle by the defendant from whom first party benefits are sought. Indeed, a review of [*8]the plain language of the Insurance Law and the CMVIRA, evinces that first party benefits are only available from an insurer if, inter alia, the insurer insures one of the vehicles involved in an accident from which injuries arise. Specifically, Insurance Law § 5103 (a) and (1) require an owner to provide a policy that pays "first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle." The word "such" is a direct reference to the insured vehicle on which there is a policy to pay said benefits. It is the relevant insurer, of course, which would necessarily have to provide the relevant policy under which claims need to be made.

The forgoing is bolstered by the CMVIRA, which per 11 NYCRR 65-1.1, requires that all policies of insurance in New York "contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement." Per that endorsement, first party benefits are limited to an eligible person, meaning one "the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle." Clearly, the "insured motor vehicle" is a reference to the relevant policy in place and of course to the relevant insurer, such that claims can only be made to an insurer if the same's vehicle was involved in the accident giving rise to the injuries for which first party benefits are made.

Besides the clear language of the forgoing statutes, case law supports the proposition that no first party benefit claims can be made to an insurer who did not insure a vehicle at the time of an accident. For example, it is well settled that when an insurer cancels a policy on a vehicle, which is subsequently involved in an accident, the prior insurer is not required to pay first party benefits (SK Prime Med. Supply v Permanent Gen. Assur. Corp., 66 Misc 3d 129[A]], *1 [App Term 2019] [Court granted defendant's motion for summary judgment on grounds that defendant insurer did not insure the assignor's vehicle at the time of the accident.]; KJC Chiropractic, P.C. v Hartford Ins. Co., 65 Misc 3d 145[A], *1 [App Term 2019] [same]). The same is true when first party benefits are sought from an insurer who never provided insurance coverage to a vehicle involved in an accident. To be sure, in Compas Med., P.C. v Hereford Ins. Co., (49 Misc 3d 146[A] [App Term 2015]), defendant moved for summary judgment asserting that "plaintiff's assignor was not entitled to receive no-fault benefits from defendant since plaintiff's assignor had been injured while driving a vehicle insured by a different insurer" (id. at *1). The trial court granted [*9]defendant's cross-motion on the grounds asserted, but the Appellate Term then reversed (id. at *1). Implicit in the Court's holding however, is that but for the absence of proof that defendant did not insure the assignor's vehicle, it would have affirmed the grant of summary judgment on the grounds asserted by defendant (id. at *1 ["In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant's counsel, purported to establish that, when the accident occurred, plaintiff's assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff's assignor was riding when the accident occurred, defendant's cross motion should have been denied."]). The court in Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co. (127 AD3d 980 [2d Dept 2015]), is in accord with the holding in Compas Med., P.C. In Matter of Tri State Consumer Ins. Co., the court vacated an arbitration award requiring the insurer to pay first party benefits for an accident involving a vehicle it did not insure (id. at 981). The court, noting that there can be no payment of first party benefits unless the insurer insured the assignor's vehicle, held that "there was no rational basis in the record for the arbitrators' rejection of the appellant's defense of lack of coverage, since the record demonstrated that the subject insurance policy issued by the appellant pertained to a vehicle and an insured different from those involved in the accident." (id. at 981).

Notably, in cases where there is an allegation that the assignor's injuries are unrelated to an insured accident, "an insurer, despite its failure to reject a claim within the 30—day period prescribed by [the] Insurance Law . . . may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident" (Cent. Gen. Hosp. v Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997] [internal citations omitted]; see Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 19 [2d Dept 1999]; Amaze Med. Supply, Inc. v Utica Mut. Ins. Co., 26 Misc 3d 129[A], *1 [App Term 2009] ["In opposition to plaintiff's motion, defendant asserted that the alleged injuries did not arise out of an insured incident. We find that defendant's submissions were sufficient to demonstrate that defendant possessed a founded belief that the alleged injuries do not arise out of an insured incident"] [internal citations and quotations marks omitted]; Ema Acupuncture, P.C. v State Farm Ins. Co., 16 Misc 3d 135[A], *1 [App Term 2007]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. [*10]Co., 6 Misc 3d 62, 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] ["We conclude, however, that the Legislature did not intend by its use of the words 'deny coverage' to bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle."]; see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000] ["Disclaimer pursuant to section 3420 (d) is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed."]).

Defendant's Motion

Defendant's motion for summary judgment is denied. Significantly, defendant fails to establish that it did not insure the vehicle in which Mercedes, the assignor, was a passenger at the time of the instant accident. As such, defendant fails to establish its defense and therefore, fails to establish prima facie entitlement to summary judgment.

In support of its motion, defendant submits an affidavit by Tony Singh (Singh), a No-Fault Supervisor, employed by defendant, who states the following: Singh is responsible for the oversight and management of all no-fault claims made to defendant. Moreover, Singh is familiar with plaintiff's claim with regard to Mercedes because he was the supervisor responsible for the handling of said claim and because Singh reviewed defendant's file with regard to said claim. Singh states that defendant's office procedure with regard to mail is that all mail is processed on the same day it is received. All mail, including bills, are date and time stamped upon receipt and then imported into a claim system used to track each bill. Each bill is then assigned an adjuster to process the bill and claim. When an adjuster creates a denial for a claim or requests additional verification, those documents are given to a mailing officer, which is either Singh or Carl Periana. The mailing officers then address the envelopes, the forgoing documents are placed therein, postage is applied and then they are mailed that same day. Specifically, the envelopes are given to an agent of the United States Postal Service, who picks up the mail on a daily basis. The foregoing documents are created and maintained in the ordinary course of defendant's business. With regard to Mercedes and plaintiff's claim, a bill for services rendered to Mercedes on November 7, 2018 was received by defendant on December 14, [*11]2018. A denial was subsequently issued on January 10, 2019. The basis of the denial was that Mercedes was not an eligible injured person insofar as his injuries did not arise out of the use and operation of the motor vehicle and/or the vehicle was not the proximate cause of Mercedes' injuries. On November 28, 2018, defendant issued a global denial asserting that Mercedes was not an occupant in defendant's vehicle.

Singh also states that the proximate cause of Mercedes' accident was a collision between a vehicle owned by Mohammad Badrudoza and insured by American Transit Insurance Company and a vehicle owned by Alassane Yoda and insured by Park Insurance Company.

Defendant submits the documents described by Singh in his affidavit. Said documents, which deny the claim made by plaintiff, contain the information described by Singh. Specifically, the denial on January 10, 2019, states that Mercedes "is not an Eligible Injured Person as the applicant's injuries did not arise out of the use or operation of the motor vehicle and/or the motor vehicle was not the proximate cause of the applicant's injuries." The denial dated November 28, 2018 states that Mercedes "was not an occupant in our vehicle."

Defendant also submits a Police Accident Report, for which no foundation is laid.

Based on the foregoing, defendant fails to establish prima facie entitlement to summary judgment. Significantly, here, defendant denied the instant claim on grounds that it did not insure any of the vehicles involved in Mercedes' accident such that it has no obligation to provide first party no-fault benefits to him. However, while, defendant's submission establish some of the foregoing contentions with regard to the timely mailing of the denials, the record is bereft of competent and admissible evidence establishing the substance of said defense.

Preliminarily, here, defendant does establish that it timely [FN4] denied the instant claim on the grounds, that defendant urges warrants dismissal. First, defendant provides the denials it sent to plaintiff and laid the foundation for their admission [*12]into evidence [FN5] . These denials do evince that they were made within 30 days of receipt of plaintiff's claim. One denial was actually made before the instant claim was submitted, presumably when plaintiff applied for first party benefits. Second, defendant established that it timely denied the claims. To be sure, it is well settled that a party's burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form "of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18). Here, Singh's affidavit, which describes defendant's procedure for the receipt, processing and mailing of no-fault claim related documents, establishes that the claims herein were timely denied insofar as the denials were mailed within 30 days of receiving plaintiff's claim.

However, defendant's evidence is wholly inadequate for purposes of establishing, as urged, that the claim herein warranted denial because defendant did not insure any of the vehicles involved in Mercedes' accident, let alone the one in which he was a passenger. Again, an insurer who establishes that it never insured an assignor's vehicle at the time of the accident giving rise to the claim for first party benefits is not liable to pay the same (Compas Med., P.C. v at *1; Matter of Tri State Consumer Ins. Co. at 981). Here, it is clear that Singh's assertion - that defendant did not insure any of the vehicles involved in the instant accident - is entirely based on the Police Accident Report appended to defendant's motion. The record, however, is bereft of any foundation for the same's admission and as such it cannot be considered. As such, defendant fails to establish prima facie entitlement to summary [*13]judgment. Inasmuch as defendant fails to meet its burden, the Court need not consider the sufficiency of any of the opposition papers submitted (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Accordingly, defendant's motion is denied.

Plaintiff's Cross-Motion

Plaintiff's cross-motion seeking summary is granted. Significantly, plaintiff establishes that it timely submitted the instant claim, that although timely denied, the defense undergirding the denial has no legal merit, and that the claim is overdue.

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. at *1; New York and Presbyt. Hosp. at 513; see Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. at 742; E. Coast Psychological, P.C. at *1; Mollins at *1).

Here although, plaintiff submits no evidence in support of its motion, it nevertheless establishes prima facie entitlement to summary judgment by relying on the denial forms submitted by defendant in support of its motion for summary judgment. To be sure, in no fault cases, the proponent of summary judgment may establish prima facie entitlement to summary judgment using the evidentiary submissions of the opposing party (Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term 2006]; see E. Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128(A) [App Term 2007]; Fair Price Med. Supply Corp. v Elrac Inc., 12 Misc 3d 119, 120 [App Term 2006]. In Oleg Barshay, DC, P.C., the court granted plaintiff's motion for summary judgment even though plaintiff had not submitted sufficient evidence to establish prima facie entitlement thereto (id. at *1-2). That court searched the record, noted that the missing elements of plaintiff's prima facie case were annexed to defendant's opposition papers, and granted plaintiff's motion (id. at *1-2). Specifically, that court stated [w]hile in its motion papers, plaintiff proved that it prepared a claim setting forth the fact and amount of the loss, plaintiff's proof that it submitted the claim to defendant was inadequate. We have held that a no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer's denial of claim form wherein the insurer acknowledges the claim's receipt. Where, as here, plaintiff failed to annex the defendant's denial of claim form to its motion papers, and the defendant annexes the denial of claim form to its opposing papers, the deficiency is similarly cured. We are aware of the well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the [*14]opposing papers. Moreover, it has been said that where a movant fails to demonstrate its entitlement to judgment as a matter of law, it is unnecessary for the court to even consider the sufficiency of the opposition papers. While opposition papers should not be reviewed for the sufficiency of the opposition, i.e., in order to determine whether a triable issue of fact has been raised, since in such cases the burden of proof will not have shifted to the party opposing the motion, this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers. Where the missing elements of a movant's prima facie showing of entitlement to judgment as a matter of law (such as here, plaintiff's submission of the claim forms) are supplied in the opposition papers, it is our opinion that the court may, in its discretion and pursuant to its power to search the record, find that a prima facie case exists, thereby shifting the burden of proof, notwithstanding the evidentiary deficiencies in the moving papers. Indeed, CPLR 3212 (b) authorizes the court to grant a motion for summary judgment, if upon 'all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.' The discretion of the court to review the opposition papers may be viewed as akin to the court's discretionary power to grant reverse summary judgment in an appropriate case. This discretion exists both in the motion court and, in the first instance, in an intermediate appellate court. Thus, the opposition papers may, in the court's discretion, be perused to determine whether the record as a whole establishes the movant's prima facie entitlement to judgment. Were we to interpret the law otherwise, a court could not, for example, grant summary judgment to a plaintiff whose moving papers are insufficient, even where there has been a concession of liability in defendant's opposition papers (internal citations omitted) (id. at *1-2).

Here, as previously noted, defendant's denial form establishes that the claim herein was timely, that it was timely denied, but insofar as defendant denied the existence of coverage, never paid. Now that this Court, by denying defendant's motion, has, by operation of law, determined that defendant's defense lacks merit, payment on the claim is over due. Accordingly, plaintiff establishes prima facie entitlement to summary judgment and nothing submitted by defendant raises an issue of fact sufficient to preclude summary judgment in plaintiff's favor. It is hereby

ORDERED that the Clerk enter judgment in plaintiff's favor in the amount of 1,789.19, plus interest. It is further

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

This constitutes this Court's decision and Order.

Dated: November 19, 2021

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: See also 11 NYCRR 65-1.1 ["No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. . . . Medical, Work Loss, and Other Necessary Expenses. In the case of a claim for health service expenses, the eligible injured person or that person's assignee or representative shall submit written proof of claim to the Company, 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. The eligible injured person or that person's representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the Company as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person's representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation."]

Footnote 3: 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]).

Footnote 4: This is, of course, is irrelevant here since the defense is a lack of coverage defense which can be asserted even in the absence of a timely denial (Gen. Hosp. v Chubb Group of Ins. at 199; see Mount Sinai Hosp. at 19; Amaze Med. Supply, Inc. at *1; Ema Acupuncture, P.C. at *1; Ocean Diagnostic Imaging, P.C. at 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone at 135-136; see Matter of Worcester Ins. Co. at 188).

Footnote 5: Defendant's denial forms are admissible insofar as Singh laid the requisite business records foundation. To be sure, 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]).