Opinion
No. 2003-112 K C.
Decided February 10, 2004.
Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (K. Yellen, J.), entered November 22, 2002, as denied their motion for summary judgment. Order unanimously modified by providing that plaintiffs' motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $16,461.40 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and RIOS, JJ.
In this action to recover $19,425.89 in first-party no-fault benefits for medical treatment provided their assignor, plaintiffs sustained their burden to prove entitlement to no-fault benefits prima facie by submitting proof of the completed statutory forms setting forth "the fact and amount of loss" (Insurance Law § 5105 [a]; e.g. S M Supply Inc. v. Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d 11th Jud Dists]), without the necessity of additional proof that the fact or extent of the treatments were medically necessary ( Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). Defendant's failure to timely deny the claims (11 NYCRR 65.15 [g] [3]) waived objections based on the facial sufficiency of the claim forms ( New York Presbyt. Hosp. v. American Tr. Ins. Co., 287 AD2d 699, 701; Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11, 17) and most defenses as to the propriety of the claim itself ( Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 278). Defendant's attempt to toll the commencement of the 30-day claim determination period by recourse to an examination of the assignor under oath failed because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure ( see 11 NYCRR 65.15 [d] [3]; 65.2 [a]; 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002). Defendant cannot base the right to such an examination in the policy provisions providing for "cooperation" because the no-fault endorsement, an "internally complete and distinct part of the insurance policy . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy" ( Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670; e.g. Bronx Med. Serv. P.C. v. Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).
While objections based on allegedly fraudulent accident claims survive an insurer's failure to timely deny such claims ( Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199), in opposition to the summary judgment motion, defendant failed to allege facts, in admissible form and with the requisite particularity, to create triable issues of fraud (cf CPLR 3016 [b]); Small v. Loriulard Tobacco Co., 94 NY2d 43, 57; Matter of State Farm Mut. Auto. Ins. Co. v. Laguerre, 305 AD2d 490, 490-491); Bonetti v. Integon Natl. Ins. Co., 269 AD2d 413, 414). Insofar as defendant based its opposition to summary judgment on the claim that the extent of the treatment was medically unnecessary, as noted previously, defendant is precluded from interposing the defense ( Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d at 199; Amaze Med. Supply Inc. v. Eagle Ins. Co., supra).
However, plaintiff A.B. Medical Services PLLC failed to prove submission of the completed statutory forms as to its physical therapy claim for $464.80. Absent either an allegation in plaintiffs' affidavit as to whether the claim forms were mailed, or proof of when defendant received the claims via, e.g., defendant's claim determination forms, the prima facie case also failed as to plaintiff Daniel Kim's Acupuncture P.C.'s claim for $270.00; plaintiff A.B. Medical Services PLLC's claims for $71.06 (October 25, 2000), $895.80, $532.42 (July 28, 2000), $249.96, and $76.06; and plaintiff D.A.V. Chiropractic P.C.'s claim for $404.40 (November 6, 2000).
Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on $16,461.40, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see St. Clare's Hosp. v. Allstate Ins. Co., 215 AD2d 641) and for all further proceedings on the remainder of the claims.