Preview
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------X
HORIZON REHABILITATION, P.T., P.C., Index No.: CV-739737-20/KI
a/a/o Collins, Andrea
Plaintiff, Affirmation in Support of
Motion for Summary Judgment and to
-against- Dismiss Affirmative Defenses.
AMERICAN TRANSIT INS. CO.,
Defendant.
---------------------------------------------------------X
Oleg Rybak, Esq, an attorney duly admitted to the practice of law in the courts of the
state of New York, and not a party to this action, hereby affirms under the penalties of perjury
pursuant to CPLR 2106 as follows:
1. I am a member of The Rybak Firm, PLLC, an attorney for Horizon Rehabilitation,
P.T., P.C., that brings this action as an assignee of Collins, Andrea, therefore, I am fully familiar
with the facts and circumstances of the present case.
2. I submit this affirmation along with true copies and duplicates of proofs in
support of Horizon Rehabilitation, P.T., P.C.‘s motion for an for a Decision and Order directing
the dismissal of Defendant’s Affirmative Defenses pursuant to CPLR 3211(b); for the entry of
Summary Judgment pursuant to CPLR 3211(c), CPLR 3212(a) against the Defendant, and in
favor of Horizon Rehabilitation, P.T., P.C., and Limiting the Issues for Trial pursuant to CPLR
3212(g), and for such other and further relief as this Court may deem just and proper.
3. This action is brought by Horizon Rehabilitation, P.T., P.C. against Defendant,
inter alia, for breach of contract for failure to timely and properly pay No-Fault benefits and to
recover the cost of medical services rendered by Horizon Rehabilitation, P.T., P.C. to, or for the
benefit of, Collins, Andrea, statutory interest and statutory attorney fees.
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STATEMENT OF FACTS
4. Collins, Andrea was injured in a motor vehicle accident on or about 1/22/2018
(hereinafter “Accident”). At the time of the Accident, upon information and belief, Defendant
was the No-Fault insurance carrier covering Collins, Andrea‘s injuries and responsible for
payment of any first party No-Fault benefits.
5. Upon information and belief, there was an existing insurance policy at the time of
the Accident that contained a Mandatory Personal Injury Protection Endorsement under which
Collins, Andrea was entitled to receive payment for medical service expenses sustained because
of the Accident.
6. After the Accident, upon information and belief, Defendant received a timely
notice of the Accident and of Collins, Andrea‘s injuries sustained in that Accident. After the
Accident was reported to Defendant, Defendant assigned a claim number 1018734 to this matter.
Within the statutory 30-day time period from the date of the Accident Horizon Rehabilitation,
P.T., P.C. timely and properly mailed the statutory New York Motor Vehicle No-Fault Insurance
Law Application for Motor Vehicle No-Fault Benefits form (“NF-2”) for Collins, Andrea. Upon
information and belief, Defendant received the NF-2.
7. Because of the accident and the injuries sustained therein, Collins, Andrea sought
medical services from Horizon Rehabilitation, P.T., P.C. Horizon Rehabilitation, P.T., P.C. and
persons acting under Horizon Rehabilitation, P.T., P.C.‘s direction, supervision and control
provided the proper and necessary medical services to Collins, Andrea for the injuries sustained
in the Accident.
8. Collins, Andrea (sometimes referred to as an “Assignor”) executed a statutory
New York Motor Vehicle Insurance Law Assignment Benefits Form to Horizon Rehabilitation,
P.T., P.C. (“Assignee”) giving the Assignee the right to recover directly from Defendant all of
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the Assignor’s No-Fault benefits for sums billed by the Assignee for provided medical services.
A copy of the assignment of rights and benefits is annexed hereto as “EXHIBIT 1”. Horizon
Rehabilitation, P.T., P.C. timely and properly furnished with its claim form(s) to Defendant a
properly executed assignment of rights and benefits.
THE INSTANT MOTION
9. Horizon Rehabilitation, P.T., P.C. now moves for a Decision and Order directing
the dismissal of Defendant’s Affirmative Defenses pursuant to CPLR 3211(b); for the entry of
Summary Judgment pursuant to CPLR 3211(c), CPLR 3212(a) against the Defendant, and in
favor of Horizon Rehabilitation, P.T., P.C., and Limiting the Issues for Trial pursuant to CPLR
3212(g), and for such other and further relief as this Court may deem just and proper.
10. This Court should grant Horizon Rehabilitation, P.T., P.C.‘s motion for the
following reasons.
11. Horizon Rehabilitation, P.T., P.C. as an Assignee of the contract for No-Fault
benefits is permitted to bring, and did bring, this action to recover all unpaid, outstanding and
overdue No-Fault benefits claims.
12. Horizon Rehabilitation, P.T., P.C. in the regular and ordinary course of its
business timely and properly generated and mailed its claim form(s) and all supporting
documents, along with all the required No-Fault verification forms, to Defendant by duly
depositing all these documents into the care and custody of the United States Post Office. An
affidavit of mailing of the claim forms by Horizon Rehabilitation, P.T., P.C.‘s is annexed hereto
as “EXHIBIT 2”.
13. In this matter, Defendant failed to timely and properly pay or deny the below
referenced claims within the statutory thirty (30) day period as required by No-Fault Insurance
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Law and Regulations or to take any action to properly toll the time constraints found in 11
NYCRR § 65-3.8(a). A copy of the unpaid claim form(s) is annexed hereto as “EXHIBIT 3”.
14. However, if the Defendant will argue that a denial or denials was/were issued, the
admissibility of which is/are contested because these denials are late, they are inadmissable, and
even if timely, they are conclusory, vague or without merit as a matter of law.
15. Horizon Rehabilitation, P.T., P.C. commenced this action by proper Service of the
Summons and Complaint in accordance with CPLR. A copy of Summons and Complaint are
annexed hereto as “EXHIBIT 4”.
16. The issue was joined by service of Defendant’s Answer. A copy of Answer is
annexed hereto as “EXHIBIT 5”.
ARGUMENT
17. Horizon Rehabilitation, P.T., P.C. is asking for dismissal of Defendant’s
affirmative defenses and for Summary Judgment, since there are no issues of fact that prevent
this Court from granting Plaintiff’s motion in its entirety that might reasonably be resolved in
favor of Defendant.
a. This Court Must Dismiss Defendant’s Affirmative Defenses as Frivolous and
Lacking Evidentiary and Factual Support.
18. CPLR 3211(b) permits a dismissal of one or more defenses on the ground that a
”defense is not stated“ and that the defense “has no merit.” See Report of the Judicial
Conference to the 1965 Legislature in Relation to the Civil Practice Law and Rules printed in the
Eleventh Annual Report of the Administrative Board of the Judicial Conference of the State of
New York, Leg. Doc. No. 90, at 373 (1966); see also Butler v. Catinella, 58 A.D.3d 145, 147 (2d
Dep’t, 2008) (“[a] party may move for judgment dismissing one or more defenses, on the ground
that a defense is not stated or has no merit").
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19. A motion under CPLR 3211(b) may be directed to any defense or part of a
defense which has no merit. Cf. Fox v. Abe Schrader Corp., 36 A.D.2d 591 (1st Dep’t, 1971).
CPLR 3211(b) provides only for dismissal of a defense; but when two defenses are pleaded
together as one, it would be cumbersome to require the plaintiff to first move to have the
defenses stated separately and then to move against the one that has no merit . . . . See generally
7 Weinstein, Korn and Miller, N.Y. Civ. Prac. P. 3211.41 at 7-3211.
20. “On a motion to dismiss pursuant to CPLR 3211(b) the court may consider such
motion as one for summary judgment and the [opposing party] must come forward with evidence
which will raise an issue as to the facts pleaded.” Div. of Triple T Serv. v. Mobil Oil Corp., 60
Misc. 2d 720, 722 (N.Y. Sup. Ct. 1969), aff’d, 34 A.D.2d 618 (2d Dep’t, 1970) citing CPLR
3211(c).
21. The court has the implicit power to dismiss defense that have no merit, while
allowing the remaining defenses to stand. The Appellate Division, Second Department, has held
that an answer may not include a “[d]efenses which merely plead conclusions of law without
supporting facts are insufficient.” Glenesk v. Guidance Realty Corp., 36 A.D.2d 852 (2d Dep’t,
1971) (emphasis added).
22. In this case, in its answer, Defendant interposed numerous meritless and frivolous
affirmative defenses that are not supported by the facts of the action. However, by their very
nature, these defenses warrant more specific pleading, which are not addressed anywhere by the
Defendant in any of its submissions to this Court. The affirmative defenses included in
Defendant’s answer as pleaded are “totally bereft of factual data [and] are fatally deficient.”
Bentivegna v. Meenan Oil Co., 126 A.D.2d 506 (2d Dep’t, 1987) citing Glenesk v. Guidance
Realty Corp., supra. (Emphasis added).
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23. Since Defendant has failed to support its affirmative defenses with sufficient and
specific facts instead of throwing them against a wall in hopes that something will stick,
Defendant’s affirmative defenses have no merit as a matter of law, thus the Court should grant
Plaintiff an Order dismissing all of Defendant’s unsupported, meritless and frivolous affirmative
defenses as a matter of law.
b. Plaintiff is entitled to Summary Judgment as Plaintiff sufficiently established its
prima facie entitlement to judgment as a matter of law by establishing that its claim
form(s) was timely and properly mailed to Defendant, that said claim form was
received by the Defendant and that said claim remains unpaid, outstanding, and
overdue. To the extent it is found that there are triable issues of material fact that
preclude the granting of summary judgment at this juncture, this Court should
determine as requested in Plaintiff’s Notice of Motion that Plaintiff- as a matter of
law established its prima facie case for all purposes in this matter and limited the
issues for trial.
24. CPLR 3211(c) authorizes the submission and consideration of any evidence that
could properly be considered on a motion for summary judgment, including affidavits by persons
having knowledge of the facts, depositions, written admissions and other available proof. See,
e.g., Bello v. Cablevision Sys. Corp., 185 A.D.2d 262 (2d Dep’t, 1992) (in affirming the lower
court’s grant of . . . motion to dismiss . . . the appellate court considered the evidence submitted
with the motion as well as the evidence appended to the complaint); see also 7 Weinstein, Korn
and Miller, N.Y. Civ. Prac. P. 3211.45 at 7-3211.
25. In addition, pursuant to CPLR 3212(a) “[a]ny party may move for summary
judgment in any action, after issue has been joined . . . .” see also 7 Weinstein, Korn and Miller,
N.Y. Civ. Prac. R. 3212 at 7-32.
26. In the alternative, pursuant to CPLR3212(g) “[i]f a motion for summary judgment
is denied or is granted in part, the court, by examining the papers before it and, in the discretion
of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute
or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be
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deemed established for all purposes in the action. The court may make any order as may aid in
the disposition of the action.” 7 Weinstein, Korn and Miller, N.Y. Civ. Prac. R. 3212 at 7-32
(2009).
27. “Pursuant to the statutory and regulatory framework governing the payment of
no-fault benefits, insurance companies are required either to pay or deny a claim for first-party
benefits within 30 days of receipt of the claim.” N.Y. Ins. Law §5106(a); 11 NYCRR 65-
3.8(a)(1); 11 NYCRR 65-3.8(c); Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13,
17 (2d Dep’t, 2009).
28. An insurance carrier is obligated to strictly comply with N.Y. Ins. Law §5106(a)
supra and 11 NYCRR 65-3.8. See Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d
274 (1997). The Court of Appeals in Presbyterian Hospital v. Maryland Casualty Co., held that
the insurance company’s failure to deny the bill within 30 days of its receipt and its failure to
extend that time by requesting verification on a prescribed form precludes the insurance
company from denying the claim. The above holding was based solely on the insurer’s failure to
comply with the “30 day” rule as set forth in §5106(a) supra of the Insurance Law and 11
NYCRR 65.15(g)(3) which now after the 2004 amendment is 11 NYCRR 65-3.8. A No-Fault
claim must be paid or denied within thirty days or it is “overdue.” commencing the accrual of
interest and attorney fees. See, Presbyterian Hospital v. Maryland Cas. Co., supra.
1. Step 1: Plaintiff's Prima Facie Threshold Review
29. To recover No-Fault benefits as a matter of law, a plaintiff, any plaintiff, whether,
medical provider or a durable medical equipment provider (“DME”), must establish a prima
facie showing, “of their entitlement to judgment as a matter of law by submitting evidentiary
proof that the prescribed statutory billing forms had been mailed and received, and that payment
of no-fault benefits was overdue.” Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742,
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743 (2d Dep’t, 2004) citing N.Y. Ins. Law §5106(a) supra; 11 NYCRR 65.15(g)(3) [now 65-3.8]
supra; St. Luke’s Roosevelt Hosp. v. American Tr. Ins. Co., 1 AD3d 498 (2d Dep’t, 2003); New
York & Presbyt. Hosp. v. Allstate Ins. Co., 295 AD2d 412, 413 (2d Dep’t, 2002).
30. As one trial Court has noted with respect to motions for summary judgment in the
No-Fault insurance litigation context, “Building a more workable approach to no-fault summary
judgment motions requires recognition that the bulk of no-fault summary judgment issues are
decided on the sufficiency of the papers and arguments of law regarding specific no-fault
technicalities, as well as explicit identification of no-fault variations of traditional summary
judgment precepts.” Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d
996, 997 (Civ. Ct., Queens Cty., 2007) (Lebedeff, J.). The technical issues involve the no-fault
system’s “tightly timed process of claim, disputation and payment.” Presbyterian Hosp. in the
City of N.Y. v Maryland Cas. Co., supra; Insurance Law § 5101, et seq.; NYCRR § 65-1.1, et
seq.; see , last updated Oct. 8, 2012, for Insurance
Department Web site links to the No-Fault Law, regulations, forms, opinion letters and
frequently asked questions.
31. The process of claim submission and insurer response, and the computation of
time periods, are well summarized elsewhere. See Inwood Hill Med. V. Allstate Ins. Co., 3 Misc
3d 1110(A) (Civ Ct, NY Cty., 2004) (Hagler, J.). see also Metroscan Imaging v. American Tr.
Ins. Co., NYLJ, Dec. 10, 1999, at 27, col 5 (Civ. Ct., NY Cty., 1999) (Karen Smith, J.)
(addressing “old” regulations in effect prior to Apr. 5, 2002). Briefly put, once a claim is
submitted (11 NYCRR § 65-3.11 (b)), payment is subject to the “30 day rule” (11 NYCRR § 65-
3.8 (a) (1)), with a default of timely payment entitling a claimant to sue for payment of an
overdue claim. Mary Immaculate Hosp. v. Allstate Ins. Co., supra. While a failure to issue a
timely denial precludes an insurer from subsequent objection to the sufficiency or propriety of
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the claim form submitted. See Presbyterian Hosp. in the City of N.Y. v Maryland Cas. Co.,
supra, 90 NY2d at 278. A timely denial preserves the stated objections for litigation.
32. “Using that foundation, construction of a series of relevant inquiries produces the
following four-step analysis for no-fault summary judgment motions: (1) a threshold review
of the three requisite showings of a no-fault plaintiff’s prima facie case; (2) an assessment of the
insurer’s tendered proof of issuance and service of its response, if any; (3) a regulatory
compliance review of any properly served insurer response, weighing a response’s timeliness,
form and substance; and (4), finally, a search for triable issues of fact in relation to any properly
preserved, otherwise precludable defenses, as well as of defenses independent of the response
process. This decision concentrates on these four areas of inquiry, with amplification and
qualifications footnoted.” Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc.
3d supra at 998 (emphasis added). “This same analysis is adaptable to identification of trial
issues in no-fault cases and—by starting with the second step—to insurers’ motions and cross
motions for summary judgment.” Id.
33. “As a matter of law, a no-fault plaintiff’s summary judgment showing is
extremely limited and is free of the normal summary judgment obligation to rebut
defenses. A no-fault plaintiff’s necessary prima facie showing consists of only three scant
elements.” Id. A no-fault plaintiff’s substantive proof of its claim is the claim form (Insurance
Law § 5106 (a) (claim form gives “proof of the fact and amount of loss sustained”); 11 NYCRR
65-1.1 (d), (Sec I, Conditions, Proof of Claim) (claim form proves “particulars of the nature and
extent of the injuries and (health benefits) received and contemplated”); Dermatossian v. New
York City Tr. Auth., 67 NY2d 219, 224 (1986) (“to receive payment (a claimant) need only file a
‘proof of claim’ (which) the insurers are obliged to honor.”)). The exemption from the normal
summary judgment motion requirement that a movant “show that there is no defense to the cause
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of action” (CPLR 3212 [b]) arises because courts have perceived that the “clear legislative
mandate to facilitate the prompt and efficient resolution of first-party no-fault claims” requires
that a litigating no-fault claimant be subjected to “[no] greater burden of proof after the action is
commenced than was necessary at the claim stage.” Amaze Med. Supply v. Eagle Ins. Co., 2
Misc 3d 128(A) (App. Term, 2d Dep’t, 2003); see Global Med. Equip., Inc. v. Allstate Ins. Co.,
15 Misc 3d 131(A) (App. Term, 2d Dep’t, 2007] (plaintiff need not show denial untimely).
34. First, the claimant must present in its original motion papers the claim and
assignment forms it submitted to the insurer. See, A.B. Med. Servs. PLLC v. State Farm Mut.
Auto. Ins. Co., 7 Misc 3d 127(A) (App. Term, 2d Dep’t, 2005) (as to claim form); see, Inwood
Hill Med. P.C. v. Allstate Ins. Co., supra; T&G Med. Supplies, Inc. v. State Farm Mut. Auto.
Ins. Co., 7 Misc 3d 1017(A) (Civ. Ct., NY Cty., 2005).
35. Contrary to Defendant’s contentions, Plaintiff sufficiently established its prima
facie case before this Court. It did so by following the dictates of the Appellate Division of this
Department, which has repeatedly held, “[i]n an action to recover no-fault benefits, a plaintiff
makes a prima facie showing of entitlement to judgment as a matter of law by submitting
evidentiary proof that the prescribed statutory billing forms were mailed to and received by the
relevant insurance carrier, and that payment of no-fault benefits was overdue. No-fault benefits
are overdue if not paid within 30 days after the insurer receives proof of claims, including
verification of all relevant information requested.” Westchester Med. Ctr. v. Progressive Cas.
Ins. Co., 89 A.D.3d 1081, 1082 (2d Dep’t, 2011) (internal citations omitted, emphasis added).
See also 11 NYCRR § 65-3.8(a)(1); Westchester Med. Ctr. v. New York Cent. Mut. Fire Ins. Co.,
81AD3d 929 (2d Dep’t, 2011); New York Hosp. Med. Ctr. of Queens v. Country Wide Ins. Co.,
82 AD3d 723 (2d Dep’t, 2011); NYU Hasp. For Joint Diseases v. Country Wide Ins. Co., 84
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AD3d 1043 (2d Dep’t, 2011); New York & Presbyt. Hosp. v. Countrywide Ins. Co., 44 A.D.3d
729 (2d Dep’t, 2007); Mary Immaculate Hosp. v. Allstate Ins. Co., supra.
36. Once the plaintiff establishes a prima facie showing, the plaintiff is entitled to a
summary judgment “[t]he plaintiff[] [White Plains Hospital] established their prima facie
entitlement to summary judgment . . . to recover no-fault benefits on behalf of its assignor, . . . by
submitting the prescribed statutory billing forms, the affidavit of its biller . . . referencing the
patient and the forms.” Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d supra at 21
(internal quotations and citations omitted); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324
(1986) (“the proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact”); Zuckerman v. City of New York, 49 NY2d 557, 562
(1980) (the movant established his cause of action or defense ‘sufficiently to warrant the court as
a matter of law in directing judgment’ in his favor . . . by tender of evidentiary proof in
admissible form); Westchester Med. Ctr. v. Allstate Ins. Co., 53 AD3d 481 (2d Dep’t, 2008)
([t]he plaintiff made a prima facie showing of entitlement to summary judgment . . . to recover
no fault benefits on behalf of its assignor, . . . by demonstrating that the prescribed statutory
billing forms were mailed to and received by the defendant and that payment was overdue);
Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676 (2d Dep’t, 2007) (the court found
that the evidence demonstrated that the company received proof of the claims and failed to pay
the bills or issue a denial of claim form within the requisite 30-day period, under N.Y. Ins. Law
§5106(a) supra; 11 NYCRR 65-3.8(a) supra).
37. “Unlike negligence actions where plaintiffs must prove causation, plaintiffs
seeking to recover first party no-fault payments bear no such initial burden, as causation is
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presumed.” Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d supra at 21; see also
Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11, 20 (2d Dep’t, 1999).
38. Second, necessary to a proper evidentiary foundation for the forms and related
documents, a supporting affidavit must establish the tendered records are part of plaintiff’s
business records. See CPLR 4518 (a); North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc
3d 130(A) (App. Term, 2d Dep’t, 2006).
39. Third, the no-fault plaintiff must prove that the claim and assignment forms were
served upon the insurer. Service of both the no-fault claim and assignment forms is established
by an actual affidavit of mailing or by proof of “an office practice and procedure followed . . . in
the regular course of . . . business . . . geared so as to ensure the likelihood that [the item] is
always properly addressed and mailed.” Nassau Ins. Co. v. Murray, 46 NY2d 828, 829-830
(1978). A post office receipt may supply additional “direct proof of actual mailing.” LMK
Psychological Servs., P.C. v. Liberty Mut. Ins. Co., 30 AD3d 727, 728 (3d Dep’t, 2006).
40. A proper showing of mailing gives rise to a presumption of receipt and an insurer
asserting it did not receive a claim bears a heavy burden to overcome that presumption. See, for
example, Maldonado v. Steiner, 10 Misc 3d 128(A) (App. Term, 2d Dep’t, 2005).
41. A plaintiff may tender an insurer’s denial of claim form as an acknowledgment of
receipt as its business record. See Medical Expertise v. Trumbull Ins. Co., 196 Misc 2d 389,
390-394 (Civ. Ct., Queens Cty., 2003) (Siegal, J.).
42. The adequacy of plaintiff’s motion is tested by inspecting the plaintiff’s affidavits
and exhibits for sufficiency. If these three elements are made out and stand unrefuted, a no-fault
plaintiff is entitled to a determination that it has made out its prima facie case. Rarely, an
estoppel or a triable issue of fact arises from an actual or possible error in a claim or assignment
form. See Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d at 1000 supra.
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2. Step 2: Assessment of Proof of Issuance and Service of Insurer's Denial or
Unsatisfied Request
43. “Because no-fault plaintiff’s summary judgment motion papers need not counter
pleaded denials and affirmative defenses, insurers bear the entire burden of establishing the
existence of cognizable defenses.” Id.; see generally, Mitchell S. Lustig and Jill Lakin Schatz,
Outside Counsel, Summary Judgment Motions: Defending No-Fault Insurer, NYLJ, Oct. 26,
2005, at 4, col 4). This second analytic stage reviews the insurer’s opposition papers to
determine whether the insurer makes a threshold showing that it preserved a precludable defense
or that unsatisfied verification requests exist.
44. “Just as a plaintiff must do, and by reason of similar case law standards, the
insurer must advance copies of all relevant communications, prove the service of each, and
establish a business record foundation.” Id.; see, Mitchell S. Lustig and Jill Lakin Schatz,
Outside Counsel, Proper Proof of Mailing Under NY No-Fault Law, NYLJ, Oct. 2, 2006, at 4,
col 4 (as to insurer’s proof of mailing).
45. “If the insurer claims an unsatisfied request is outstanding, the insurer must
submit a copy of the original request and a follow-up request, establish issuance and service of
the requests, and supply evidence of the failure to respond or cooperate.” Id. at 1001 supra
citing Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 (2d
Dep’t, 2006); Psychological Practice, P.C. v. State Farm Fire & Cas. Co., 16 Misc 3d 12, 13
(App. Term, 2d Dep’t 2007) (general statement of affiant’s “personal knowledge” not sufficient
factual support to establish failure to appear for examination). These requirements apply to
verification requests, as well as requests for appearance at an examination under oath and
independent medical examination. A failure to appear for a “preclaim” examination may be
viewed as a lack of cooperation which defeats coverage and must be preserved in a timely and
proper denial, but a plaintiff may render the question a triable issue of fact by offering “a valid
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excuse for . . . [the] nonappearance [or demonstrate] that the . . . requests were unreasonable
under the circumstances.” Amaze Med. Supply Inc. v. General Assur. Co., 12 Misc 3d 127(A)
(App. Term, 2d Dep’t, 2006).
46. However, if the insurer issued a denial while a verification request was
outstanding, the request is deemed waived and is disregarded. See King’s Med. Supply Inc. v
Kemper Auto & Home Ins. Co., 7 Misc 3d 128(A) (App. Term, 2d Dep’t, 2005).
3. Step 3: Regulatory Compliance Review of Timeliness and Form of No-Fault
Insurer's Denial or Verification Requests
47. If the defendant does establish that it issued and served a denial or verification
requests, each communication must be examined to determine if it serves as a proper defense by
conforming in timing, form and substance with the requirements of the “Rube-Goldberg-like
maze” of the No-Fault Law and the “thicket” of governing Insurance Department regulations.
See Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d at 1001 supra, citing
Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., supra, 90 NY2d at 286, 280).
48. This review follows the pattern of CPLR 3212 (g) in that the court – “by
examining the papers” and “interrogating counsel” -- reaches a determination of operative legal
facts “deemed established for all purposes in the action” which are “not in dispute or are
incontrovertible,” often winnowed during oral argument. “This process permits the trial court to
comply with the mandatory obligation to take judicial notice of state agency regulations (CPLR
4511 (a)) and be alerted to new appellate decisions not covered in papers prepared over as long
as a nine-month period (see Socrates Psychological Servs., P.C. v. Progressive Cas. Ins. Co., 7
Misc 3d 642, 645 n 1 (Civ. Ct., Queens Cty., 2005).” Id.
49. In relation to timeliness, the insurer must provide proof of “when the . . . [denial
or] request . . . was mailed.” I & B Surgical Supply v. New York Cent. Mut. Fire Ins. Co., 16
Misc 3d 4, 6 (App. Term, 2d Dep’t, 2007). And show mailing within the appropriate time
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period. I & B Surgical Supply v. New York Cent. Mut. Fire Ins. Co., supra n. 2. Typically, an
insurer’s affidavit refers to the date of printing of the form and describes a procedure which
allegedly assures a properly addressed envelope containing the form was mailed on that day or
the next business day. The sufficiency of the defendant insurer’s affidavit of mailing is
challenged and disputed and the admissibility of the denial of claim forms if any, is challenged.
50. As to form and substance of a denial, a “proper denial of claim must include the
information called for in the prescribed denial of claim form . . . and must ‘promptly apprise the
claimant with a high degree of specificity of the ground or grounds on which the disclaimer is
predicated’” and cannot be amended after the applicable time period has passed. See Nyack
Hosp. v. State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 (2d Dep’t, 2004) quoting General
Acc. Ins. Group v. Cirucci, 46 NY2d 862, 864 (1979).
51. A denial is deficient if it is “factually insufficient, conclusory, vague or otherwise
involves a defense which has no merit as a matter of law.” Id. at 665, quoting Amaze Med.
Supply v. Allstate Ins. Co., 3 Misc 3d 43, 44 (App. Term, 2d Dep’t, 2004).
52. Typical denials assert a defective assignment of benefits, belated filing of the
claim, a lack of medical necessity (whether for the treatment or inflation in the quantum or cost
of treatment), and that a charge exceeds permitted fee schedules. However, any of these denials,
if any, and the reasons for the denials, must ne supported by an affidavit from someone with
personal knowledge of the claim and the expertise of the defenses raised in the denials. Simple
conclusory affidavits are not sufficient.
53. In relation to the form of a verification request, it must “request . . . information . .
. relative to . . . [the] claim” from the claimant or identify to the claimant the persons or entities
asked to provide the information. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 (2d
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Dep’t, 1999); Nyack Hosp. v. Encompass Ins. Co., 23 AD3d 535 (2d Dep’t, 2005) (“delay” letter
explaining investigation underway [is] not a verification request).
54. On these issues, the court reaches a straightforward determination of law unless
some cognizable question of ambiguity is raised by a litigant. Cf. Foley Prods. V. Singer Corp.,
133 AD2d 531 (4th Dep’t, 1987) (where no ambiguity in document, no deferral for factual
exploration).
55. Where a proper and timely denial is found, the court proceeds to the next analytic
step.
4. Step 4: Summary Judgment Evaluation of Properly Cognizable Defenses
56. Only at this final stage are typical summary judgment principles applied to those
defenses found preserved and unprecluded, as well as to any independent defenses, with
recognition that the defendant bears the burden on such defenses for reasons set forth above.
57. Some defenses can be resolved as a matter of law and others on the basis of
evidentiary standards appropriate to the nature of the case. “In ruling on such motions, when
appropriate, courts should preserve judicial resources and not shy away from granting
partial relief as to predicate elements where the record does not support a full
determination (CPLR 3212 [e], [g]).” Complete Orthopedic Supplies, Inc. v. State Farm Ins.
Co., 16 Misc. 3d supra at 1002 (emphasis added).
58. The point upon which opposition papers frequently stumble is the failure to
present evidentiary material in admissible form. New York & Presbyt. Hosp. v. Allstate Ins. Co.,
31 AD3d 512, 513 (2d Dep’t, 2006); CPLR 3212 (b).
59. Formal or substantive requirements apply to certain affidavits. Support Billing &
Mgt. Co. v. Allstate Ins. Co., 15 Misc3d 126(A) (App. Term, 2d Dep’t, 2007) (doctor must affix
stamped facsimile signature (citing CPLR 2106)); Bath Med. Supply, Inc. v. Allstate Indem. Co.,
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13 Misc 3d 142(A) (App. Term, 2d dep’t, 2006) (out-of-state affidavit needs certificate of
conformity to comply with CPLR 2309 (c)); see All County Open MRI & Diagnostic Radiology
P.C. v. Travelers Ins. Co., 11 Misc 3d 131(A) (App. Term, 2d Dep’t, 2006) (“peer review . . .
conclud(ing) that there was no medical necessity due to ‘the lack of sufficient information’ upon
which the reviewer could make such determination” deficient, absent proof of verification
request for such information).
60. Exhibits should also be in admissible form or their proffer limited to admissible
portions. See, as to police reports, Johnson v. Lutz, 253 NY 124 (1930); 58 NY Jur 2d Evidence
and Witnesses § 480 (police reports, generally); § 503 (police report as to cause of accident or
injury). And, even though “admissions by a party of any fact material to the issue are always
competent evidence against [that party], wherever, whenever or to whomsoever made.” Reed v.
McCord, 160 NY 330, 341 (1899). Some formal requirements may be applicable to assure
accuracy. See R.M. Newell Co. v. Rice, 236 AD2d 843, 844 (4th Dep’t, 1997), lv denied 90
NY2d 807 (1997) (proffer of reporter-certified unsigned deposition transcript).
c. Conclusion and Application
61. In this case, Horizon Rehabilitation, P.T., P.C., is pursuing this action as
Assignee, of Collins, Andrea, to recover payment for all medical services rendered to Collins,
Andrea in the amount of $1373.62 that still remains unpaid and outstanding, and is overdue.
The denial of which and the admissibility of that denial if any, is challenged as the alleged denial
is deficient if it is factually insufficient, conclusory, vague or otherwise involves a defense which
has no merit as a matter of law.
62. Defendant by assigning a claim number to this matter and having received a
timely No-Fault Application has established that insurance coverage existed at the time of the
Accident. Although, Defendant has never produced a copy of the insurance policy in this matter.
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Under CPLR 3101(f), “A party may obtain discovery of the existence and contents of any insurance
agreement . . .” The purpose of this provision is to facilitate settlements by providing plaintiff with
knowledge of limits of the defendant’s liability policies, including all primary and excess coverage.
Thus, plaintiff is entitled to a copy of the actual policies. Anderson v House of Good Samaritan
Hospital, 1 AD3d 970 (4th Dep’t, 2003); see also Matter of Allstate Ins. Co. v. Ganesh, 8 Misc 3d
922 (Sup. Ct., Bronx Cty., 2005) (Billings, J.) (“Any recitation of the contract’s terms through
testimony or other documents in evidence is rank hearsay and contrary to the best evidence rule.”);
see also New South Insurance Co. v. Dobbins, 2007 NY Slip Op 33965(U) (Sup. Ct., Nassau Cty.,
2007) (Winslow, J.) (“At the outset, the Court notes that plaintiff (New South Insurance) has failed to
attach a copy of the insurance policy in question. Insofar as plaintiff asserts that the policy does not
provide coverage for the Incident or excludes coverage on the basis of defendant’s conduct, this
failure constitutes a fatal defect in proof.”).
63. Horizon Rehabilitation, P.T., P.C. and persons acting under its direction, supervision
and control performed the medically necessary and proper services, and then timely and properly
generated and mailed all the attached claim form(s) to Defendant within the statutory time period, i.e.
within 45-days of the date of service, for payment for medical necessary and proper services
rendered to Collins, Andrea in the amount of $1373.62 that still remains unpaid and outstanding, and
is overdue.
64. Horizon Rehabilitation, P.T., P.C. mailed in the regular and ordinary course of its
business the proper claim form(s) and verifications responses if they were ever requested to
Defendant. Defendant received the said claim form(s) and proper No-Fault verification responses for
all medical services rendered by Horizon Rehabilitation, P.T., P.C. to Collins, Andrea, as no mailed
claim form(s) and verification responses were returned to Horizon Rehabilitation, P.T., P.C.
65. Defendant violated the No-Fault statute and insurance regulations by failing to pay
Horizon Rehabilitation, P.T., P.C. the outstanding amount on the said claim form(s) of $1373.62.
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Defendant has had Horizon Rehabilitation, P.T., P.C.’s claims for more than thirty (30) days since
the claim form(s) was initially submitted to and received by Defendant without payment or timely
and proper verification request. See Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045
(2d Dep’t, 2009).
66. Based upon the aforesaid violation of N.Y. Ins. Law and the No-Fault Regulations,
improper answer and attached proofs hereof, all the evidence in this ca
Preview
FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------X HORIZON REHABILITATION, P.T., P.C., Index No.: CV-739737-20/KI a/a/o Collins, Andrea Plaintiff, Affirmation in Support of Motion for Summary Judgment and to -against- Dismiss Affirmative Defenses. AMERICAN TRANSIT INS. CO., Defendant. ---------------------------------------------------------X Oleg Rybak, Esq, an attorney duly admitted to the practice of law in the courts of the state of New York, and not a party to this action, hereby affirms under the penalties of perjury pursuant to CPLR 2106 as follows: 1. I am a member of The Rybak Firm, PLLC, an attorney for Horizon Rehabilitation, P.T., P.C., that brings this action as an assignee of Collins, Andrea, therefore, I am fully familiar with the facts and circumstances of the present case. 2. I submit this affirmation along with true copies and duplicates of proofs in support of Horizon Rehabilitation, P.T., P.C.‘s motion for an for a Decision and Order directing the dismissal of Defendant’s Affirmative Defenses pursuant to CPLR 3211(b); for the entry of Summary Judgment pursuant to CPLR 3211(c), CPLR 3212(a) against the Defendant, and in favor of Horizon Rehabilitation, P.T., P.C., and Limiting the Issues for Trial pursuant to CPLR 3212(g), and for such other and further relief as this Court may deem just and proper. 3. This action is brought by Horizon Rehabilitation, P.T., P.C. against Defendant, inter alia, for breach of contract for failure to timely and properly pay No-Fault benefits and to recover the cost of medical services rendered by Horizon Rehabilitation, P.T., P.C. to, or for the benefit of, Collins, Andrea, statutory interest and statutory attorney fees. 3 177022 1 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 STATEMENT OF FACTS 4. Collins, Andrea was injured in a motor vehicle accident on or about 1/22/2018 (hereinafter “Accident”). At the time of the Accident, upon information and belief, Defendant was the No-Fault insurance carrier covering Collins, Andrea‘s injuries and responsible for payment of any first party No-Fault benefits. 5. Upon information and belief, there was an existing insurance policy at the time of the Accident that contained a Mandatory Personal Injury Protection Endorsement under which Collins, Andrea was entitled to receive payment for medical service expenses sustained because of the Accident. 6. After the Accident, upon information and belief, Defendant received a timely notice of the Accident and of Collins, Andrea‘s injuries sustained in that Accident. After the Accident was reported to Defendant, Defendant assigned a claim number 1018734 to this matter. Within the statutory 30-day time period from the date of the Accident Horizon Rehabilitation, P.T., P.C. timely and properly mailed the statutory New York Motor Vehicle No-Fault Insurance Law Application for Motor Vehicle No-Fault Benefits form (“NF-2”) for Collins, Andrea. Upon information and belief, Defendant received the NF-2. 7. Because of the accident and the injuries sustained therein, Collins, Andrea sought medical services from Horizon Rehabilitation, P.T., P.C. Horizon Rehabilitation, P.T., P.C. and persons acting under Horizon Rehabilitation, P.T., P.C.‘s direction, supervision and control provided the proper and necessary medical services to Collins, Andrea for the injuries sustained in the Accident. 8. Collins, Andrea (sometimes referred to as an “Assignor”) executed a statutory New York Motor Vehicle Insurance Law Assignment Benefits Form to Horizon Rehabilitation, P.T., P.C. (“Assignee”) giving the Assignee the right to recover directly from Defendant all of 4 177022 2 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 the Assignor’s No-Fault benefits for sums billed by the Assignee for provided medical services. A copy of the assignment of rights and benefits is annexed hereto as “EXHIBIT 1”. Horizon Rehabilitation, P.T., P.C. timely and properly furnished with its claim form(s) to Defendant a properly executed assignment of rights and benefits. THE INSTANT MOTION 9. Horizon Rehabilitation, P.T., P.C. now moves for a Decision and Order directing the dismissal of Defendant’s Affirmative Defenses pursuant to CPLR 3211(b); for the entry of Summary Judgment pursuant to CPLR 3211(c), CPLR 3212(a) against the Defendant, and in favor of Horizon Rehabilitation, P.T., P.C., and Limiting the Issues for Trial pursuant to CPLR 3212(g), and for such other and further relief as this Court may deem just and proper. 10. This Court should grant Horizon Rehabilitation, P.T., P.C.‘s motion for the following reasons. 11. Horizon Rehabilitation, P.T., P.C. as an Assignee of the contract for No-Fault benefits is permitted to bring, and did bring, this action to recover all unpaid, outstanding and overdue No-Fault benefits claims. 12. Horizon Rehabilitation, P.T., P.C. in the regular and ordinary course of its business timely and properly generated and mailed its claim form(s) and all supporting documents, along with all the required No-Fault verification forms, to Defendant by duly depositing all these documents into the care and custody of the United States Post Office. An affidavit of mailing of the claim forms by Horizon Rehabilitation, P.T., P.C.‘s is annexed hereto as “EXHIBIT 2”. 13. In this matter, Defendant failed to timely and properly pay or deny the below referenced claims within the statutory thirty (30) day period as required by No-Fault Insurance 5 177022 3 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 Law and Regulations or to take any action to properly toll the time constraints found in 11 NYCRR § 65-3.8(a). A copy of the unpaid claim form(s) is annexed hereto as “EXHIBIT 3”. 14. However, if the Defendant will argue that a denial or denials was/were issued, the admissibility of which is/are contested because these denials are late, they are inadmissable, and even if timely, they are conclusory, vague or without merit as a matter of law. 15. Horizon Rehabilitation, P.T., P.C. commenced this action by proper Service of the Summons and Complaint in accordance with CPLR. A copy of Summons and Complaint are annexed hereto as “EXHIBIT 4”. 16. The issue was joined by service of Defendant’s Answer. A copy of Answer is annexed hereto as “EXHIBIT 5”. ARGUMENT 17. Horizon Rehabilitation, P.T., P.C. is asking for dismissal of Defendant’s affirmative defenses and for Summary Judgment, since there are no issues of fact that prevent this Court from granting Plaintiff’s motion in its entirety that might reasonably be resolved in favor of Defendant. a. This Court Must Dismiss Defendant’s Affirmative Defenses as Frivolous and Lacking Evidentiary and Factual Support. 18. CPLR 3211(b) permits a dismissal of one or more defenses on the ground that a ”defense is not stated“ and that the defense “has no merit.” See Report of the Judicial Conference to the 1965 Legislature in Relation to the Civil Practice Law and Rules printed in the Eleventh Annual Report of the Administrative Board of the Judicial Conference of the State of New York, Leg. Doc. No. 90, at 373 (1966); see also Butler v. Catinella, 58 A.D.3d 145, 147 (2d Dep’t, 2008) (“[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit"). 6 177022 4 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 19. A motion under CPLR 3211(b) may be directed to any defense or part of a defense which has no merit. Cf. Fox v. Abe Schrader Corp., 36 A.D.2d 591 (1st Dep’t, 1971). CPLR 3211(b) provides only for dismissal of a defense; but when two defenses are pleaded together as one, it would be cumbersome to require the plaintiff to first move to have the defenses stated separately and then to move against the one that has no merit . . . . See generally 7 Weinstein, Korn and Miller, N.Y. Civ. Prac. P. 3211.41 at 7-3211. 20. “On a motion to dismiss pursuant to CPLR 3211(b) the court may consider such motion as one for summary judgment and the [opposing party] must come forward with evidence which will raise an issue as to the facts pleaded.” Div. of Triple T Serv. v. Mobil Oil Corp., 60 Misc. 2d 720, 722 (N.Y. Sup. Ct. 1969), aff’d, 34 A.D.2d 618 (2d Dep’t, 1970) citing CPLR 3211(c). 21. The court has the implicit power to dismiss defense that have no merit, while allowing the remaining defenses to stand. The Appellate Division, Second Department, has held that an answer may not include a “[d]efenses which merely plead conclusions of law without supporting facts are insufficient.” Glenesk v. Guidance Realty Corp., 36 A.D.2d 852 (2d Dep’t, 1971) (emphasis added). 22. In this case, in its answer, Defendant interposed numerous meritless and frivolous affirmative defenses that are not supported by the facts of the action. However, by their very nature, these defenses warrant more specific pleading, which are not addressed anywhere by the Defendant in any of its submissions to this Court. The affirmative defenses included in Defendant’s answer as pleaded are “totally bereft of factual data [and] are fatally deficient.” Bentivegna v. Meenan Oil Co., 126 A.D.2d 506 (2d Dep’t, 1987) citing Glenesk v. Guidance Realty Corp., supra. (Emphasis added). 7 177022 5 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 23. Since Defendant has failed to support its affirmative defenses with sufficient and specific facts instead of throwing them against a wall in hopes that something will stick, Defendant’s affirmative defenses have no merit as a matter of law, thus the Court should grant Plaintiff an Order dismissing all of Defendant’s unsupported, meritless and frivolous affirmative defenses as a matter of law. b. Plaintiff is entitled to Summary Judgment as Plaintiff sufficiently established its prima facie entitlement to judgment as a matter of law by establishing that its claim form(s) was timely and properly mailed to Defendant, that said claim form was received by the Defendant and that said claim remains unpaid, outstanding, and overdue. To the extent it is found that there are triable issues of material fact that preclude the granting of summary judgment at this juncture, this Court should determine as requested in Plaintiff’s Notice of Motion that Plaintiff- as a matter of law established its prima facie case for all purposes in this matter and limited the issues for trial. 24. CPLR 3211(c) authorizes the submission and consideration of any evidence that could properly be considered on a motion for summary judgment, including affidavits by persons having knowledge of the facts, depositions, written admissions and other available proof. See, e.g., Bello v. Cablevision Sys. Corp., 185 A.D.2d 262 (2d Dep’t, 1992) (in affirming the lower court’s grant of . . . motion to dismiss . . . the appellate court considered the evidence submitted with the motion as well as the evidence appended to the complaint); see also 7 Weinstein, Korn and Miller, N.Y. Civ. Prac. P. 3211.45 at 7-3211. 25. In addition, pursuant to CPLR 3212(a) “[a]ny party may move for summary judgment in any action, after issue has been joined . . . .” see also 7 Weinstein, Korn and Miller, N.Y. Civ. Prac. R. 3212 at 7-32. 26. In the alternative, pursuant to CPLR3212(g) “[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be 8 177022 6 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action.” 7 Weinstein, Korn and Miller, N.Y. Civ. Prac. R. 3212 at 7-32 (2009). 27. “Pursuant to the statutory and regulatory framework governing the payment of no-fault benefits, insurance companies are required either to pay or deny a claim for first-party benefits within 30 days of receipt of the claim.” N.Y. Ins. Law §5106(a); 11 NYCRR 65- 3.8(a)(1); 11 NYCRR 65-3.8(c); Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 17 (2d Dep’t, 2009). 28. An insurance carrier is obligated to strictly comply with N.Y. Ins. Law §5106(a) supra and 11 NYCRR 65-3.8. See Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 (1997). The Court of Appeals in Presbyterian Hospital v. Maryland Casualty Co., held that the insurance company’s failure to deny the bill within 30 days of its receipt and its failure to extend that time by requesting verification on a prescribed form precludes the insurance company from denying the claim. The above holding was based solely on the insurer’s failure to comply with the “30 day” rule as set forth in §5106(a) supra of the Insurance Law and 11 NYCRR 65.15(g)(3) which now after the 2004 amendment is 11 NYCRR 65-3.8. A No-Fault claim must be paid or denied within thirty days or it is “overdue.” commencing the accrual of interest and attorney fees. See, Presbyterian Hospital v. Maryland Cas. Co., supra. 1. Step 1: Plaintiff's Prima Facie Threshold Review 29. To recover No-Fault benefits as a matter of law, a plaintiff, any plaintiff, whether, medical provider or a durable medical equipment provider (“DME”), must establish a prima facie showing, “of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue.” Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 9 177022 7 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 743 (2d Dep’t, 2004) citing N.Y. Ins. Law §5106(a) supra; 11 NYCRR 65.15(g)(3) [now 65-3.8] supra; St. Luke’s Roosevelt Hosp. v. American Tr. Ins. Co., 1 AD3d 498 (2d Dep’t, 2003); New York & Presbyt. Hosp. v. Allstate Ins. Co., 295 AD2d 412, 413 (2d Dep’t, 2002). 30. As one trial Court has noted with respect to motions for summary judgment in the No-Fault insurance litigation context, “Building a more workable approach to no-fault summary judgment motions requires recognition that the bulk of no-fault summary judgment issues are decided on the sufficiency of the papers and arguments of law regarding specific no-fault technicalities, as well as explicit identification of no-fault variations of traditional summary judgment precepts.” Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d 996, 997 (Civ. Ct., Queens Cty., 2007) (Lebedeff, J.). The technical issues involve the no-fault system’s “tightly timed process of claim, disputation and payment.” Presbyterian Hosp. in the City of N.Y. v Maryland Cas. Co., supra; Insurance Law § 5101, et seq.; NYCRR § 65-1.1, et seq.; see , last updated Oct. 8, 2012, for Insurance Department Web site links to the No-Fault Law, regulations, forms, opinion letters and frequently asked questions. 31. The process of claim submission and insurer response, and the computation of time periods, are well summarized elsewhere. See Inwood Hill Med. V. Allstate Ins. Co., 3 Misc 3d 1110(A) (Civ Ct, NY Cty., 2004) (Hagler, J.). see also Metroscan Imaging v. American Tr. Ins. Co., NYLJ, Dec. 10, 1999, at 27, col 5 (Civ. Ct., NY Cty., 1999) (Karen Smith, J.) (addressing “old” regulations in effect prior to Apr. 5, 2002). Briefly put, once a claim is submitted (11 NYCRR § 65-3.11 (b)), payment is subject to the “30 day rule” (11 NYCRR § 65- 3.8 (a) (1)), with a default of timely payment entitling a claimant to sue for payment of an overdue claim. Mary Immaculate Hosp. v. Allstate Ins. Co., supra. While a failure to issue a timely denial precludes an insurer from subsequent objection to the sufficiency or propriety of 10 177022 8 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 the claim form submitted. See Presbyterian Hosp. in the City of N.Y. v Maryland Cas. Co., supra, 90 NY2d at 278. A timely denial preserves the stated objections for litigation. 32. “Using that foundation, construction of a series of relevant inquiries produces the following four-step analysis for no-fault summary judgment motions: (1) a threshold review of the three requisite showings of a no-fault plaintiff’s prima facie case; (2) an assessment of the insurer’s tendered proof of issuance and service of its response, if any; (3) a regulatory compliance review of any properly served insurer response, weighing a response’s timeliness, form and substance; and (4), finally, a search for triable issues of fact in relation to any properly preserved, otherwise precludable defenses, as well as of defenses independent of the response process. This decision concentrates on these four areas of inquiry, with amplification and qualifications footnoted.” Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d supra at 998 (emphasis added). “This same analysis is adaptable to identification of trial issues in no-fault cases and—by starting with the second step—to insurers’ motions and cross motions for summary judgment.” Id. 33. “As a matter of law, a no-fault plaintiff’s summary judgment showing is extremely limited and is free of the normal summary judgment obligation to rebut defenses. A no-fault plaintiff’s necessary prima facie showing consists of only three scant elements.” Id. A no-fault plaintiff’s substantive proof of its claim is the claim form (Insurance Law § 5106 (a) (claim form gives “proof of the fact and amount of loss sustained”); 11 NYCRR 65-1.1 (d), (Sec I, Conditions, Proof of Claim) (claim form proves “particulars of the nature and extent of the injuries and (health benefits) received and contemplated”); Dermatossian v. New York City Tr. Auth., 67 NY2d 219, 224 (1986) (“to receive payment (a claimant) need only file a ‘proof of claim’ (which) the insurers are obliged to honor.”)). The exemption from the normal summary judgment motion requirement that a movant “show that there is no defense to the cause 11 177022 9 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 of action” (CPLR 3212 [b]) arises because courts have perceived that the “clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims” requires that a litigating no-fault claimant be subjected to “[no] greater burden of proof after the action is commenced than was necessary at the claim stage.” Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128(A) (App. Term, 2d Dep’t, 2003); see Global Med. Equip., Inc. v. Allstate Ins. Co., 15 Misc 3d 131(A) (App. Term, 2d Dep’t, 2007] (plaintiff need not show denial untimely). 34. First, the claimant must present in its original motion papers the claim and assignment forms it submitted to the insurer. See, A.B. Med. Servs. PLLC v. State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127(A) (App. Term, 2d Dep’t, 2005) (as to claim form); see, Inwood Hill Med. P.C. v. Allstate Ins. Co., supra; T&G Med. Supplies, Inc. v. State Farm Mut. Auto. Ins. Co., 7 Misc 3d 1017(A) (Civ. Ct., NY Cty., 2005). 35. Contrary to Defendant’s contentions, Plaintiff sufficiently established its prima facie case before this Court. It did so by following the dictates of the Appellate Division of this Department, which has repeatedly held, “[i]n an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue. No-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, including verification of all relevant information requested.” Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 89 A.D.3d 1081, 1082 (2d Dep’t, 2011) (internal citations omitted, emphasis added). See also 11 NYCRR § 65-3.8(a)(1); Westchester Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 81AD3d 929 (2d Dep’t, 2011); New York Hosp. Med. Ctr. of Queens v. Country Wide Ins. Co., 82 AD3d 723 (2d Dep’t, 2011); NYU Hasp. For Joint Diseases v. Country Wide Ins. Co., 84 12 177022 10 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 AD3d 1043 (2d Dep’t, 2011); New York & Presbyt. Hosp. v. Countrywide Ins. Co., 44 A.D.3d 729 (2d Dep’t, 2007); Mary Immaculate Hosp. v. Allstate Ins. Co., supra. 36. Once the plaintiff establishes a prima facie showing, the plaintiff is entitled to a summary judgment “[t]he plaintiff[] [White Plains Hospital] established their prima facie entitlement to summary judgment . . . to recover no-fault benefits on behalf of its assignor, . . . by submitting the prescribed statutory billing forms, the affidavit of its biller . . . referencing the patient and the forms.” Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d supra at 21 (internal quotations and citations omitted); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986) (“the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) (the movant established his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor . . . by tender of evidentiary proof in admissible form); Westchester Med. Ctr. v. Allstate Ins. Co., 53 AD3d 481 (2d Dep’t, 2008) ([t]he plaintiff made a prima facie showing of entitlement to summary judgment . . . to recover no fault benefits on behalf of its assignor, . . . by demonstrating that the prescribed statutory billing forms were mailed to and received by the defendant and that payment was overdue); Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676 (2d Dep’t, 2007) (the court found that the evidence demonstrated that the company received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period, under N.Y. Ins. Law §5106(a) supra; 11 NYCRR 65-3.8(a) supra). 37. “Unlike negligence actions where plaintiffs must prove causation, plaintiffs seeking to recover first party no-fault payments bear no such initial burden, as causation is 13 177022 11 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 presumed.” Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d supra at 21; see also Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11, 20 (2d Dep’t, 1999). 38. Second, necessary to a proper evidentiary foundation for the forms and related documents, a supporting affidavit must establish the tendered records are part of plaintiff’s business records. See CPLR 4518 (a); North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc 3d 130(A) (App. Term, 2d Dep’t, 2006). 39. Third, the no-fault plaintiff must prove that the claim and assignment forms were served upon the insurer. Service of both the no-fault claim and assignment forms is established by an actual affidavit of mailing or by proof of “an office practice and procedure followed . . . in the regular course of . . . business . . . geared so as to ensure the likelihood that [the item] is always properly addressed and mailed.” Nassau Ins. Co. v. Murray, 46 NY2d 828, 829-830 (1978). A post office receipt may supply additional “direct proof of actual mailing.” LMK Psychological Servs., P.C. v. Liberty Mut. Ins. Co., 30 AD3d 727, 728 (3d Dep’t, 2006). 40. A proper showing of mailing gives rise to a presumption of receipt and an insurer asserting it did not receive a claim bears a heavy burden to overcome that presumption. See, for example, Maldonado v. Steiner, 10 Misc 3d 128(A) (App. Term, 2d Dep’t, 2005). 41. A plaintiff may tender an insurer’s denial of claim form as an acknowledgment of receipt as its business record. See Medical Expertise v. Trumbull Ins. Co., 196 Misc 2d 389, 390-394 (Civ. Ct., Queens Cty., 2003) (Siegal, J.). 42. The adequacy of plaintiff’s motion is tested by inspecting the plaintiff’s affidavits and exhibits for sufficiency. If these three elements are made out and stand unrefuted, a no-fault plaintiff is entitled to a determination that it has made out its prima facie case. Rarely, an estoppel or a triable issue of fact arises from an actual or possible error in a claim or assignment form. See Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d at 1000 supra. 14 177022 12 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 2. Step 2: Assessment of Proof of Issuance and Service of Insurer's Denial or Unsatisfied Request 43. “Because no-fault plaintiff’s summary judgment motion papers need not counter pleaded denials and affirmative defenses, insurers bear the entire burden of establishing the existence of cognizable defenses.” Id.; see generally, Mitchell S. Lustig and Jill Lakin Schatz, Outside Counsel, Summary Judgment Motions: Defending No-Fault Insurer, NYLJ, Oct. 26, 2005, at 4, col 4). This second analytic stage reviews the insurer’s opposition papers to determine whether the insurer makes a threshold showing that it preserved a precludable defense or that unsatisfied verification requests exist. 44. “Just as a plaintiff must do, and by reason of similar case law standards, the insurer must advance copies of all relevant communications, prove the service of each, and establish a business record foundation.” Id.; see, Mitchell S. Lustig and Jill Lakin Schatz, Outside Counsel, Proper Proof of Mailing Under NY No-Fault Law, NYLJ, Oct. 2, 2006, at 4, col 4 (as to insurer’s proof of mailing). 45. “If the insurer claims an unsatisfied request is outstanding, the insurer must submit a copy of the original request and a follow-up request, establish issuance and service of the requests, and supply evidence of the failure to respond or cooperate.” Id. at 1001 supra citing Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 (2d Dep’t, 2006); Psychological Practice, P.C. v. State Farm Fire & Cas. Co., 16 Misc 3d 12, 13 (App. Term, 2d Dep’t 2007) (general statement of affiant’s “personal knowledge” not sufficient factual support to establish failure to appear for examination). These requirements apply to verification requests, as well as requests for appearance at an examination under oath and independent medical examination. A failure to appear for a “preclaim” examination may be viewed as a lack of cooperation which defeats coverage and must be preserved in a timely and proper denial, but a plaintiff may render the question a triable issue of fact by offering “a valid 15 177022 13 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 excuse for . . . [the] nonappearance [or demonstrate] that the . . . requests were unreasonable under the circumstances.” Amaze Med. Supply Inc. v. General Assur. Co., 12 Misc 3d 127(A) (App. Term, 2d Dep’t, 2006). 46. However, if the insurer issued a denial while a verification request was outstanding, the request is deemed waived and is disregarded. See King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co., 7 Misc 3d 128(A) (App. Term, 2d Dep’t, 2005). 3. Step 3: Regulatory Compliance Review of Timeliness and Form of No-Fault Insurer's Denial or Verification Requests 47. If the defendant does establish that it issued and served a denial or verification requests, each communication must be examined to determine if it serves as a proper defense by conforming in timing, form and substance with the requirements of the “Rube-Goldberg-like maze” of the No-Fault Law and the “thicket” of governing Insurance Department regulations. See Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d at 1001 supra, citing Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., supra, 90 NY2d at 286, 280). 48. This review follows the pattern of CPLR 3212 (g) in that the court – “by examining the papers” and “interrogating counsel” -- reaches a determination of operative legal facts “deemed established for all purposes in the action” which are “not in dispute or are incontrovertible,” often winnowed during oral argument. “This process permits the trial court to comply with the mandatory obligation to take judicial notice of state agency regulations (CPLR 4511 (a)) and be alerted to new appellate decisions not covered in papers prepared over as long as a nine-month period (see Socrates Psychological Servs., P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 642, 645 n 1 (Civ. Ct., Queens Cty., 2005).” Id. 49. In relation to timeliness, the insurer must provide proof of “when the . . . [denial or] request . . . was mailed.” I & B Surgical Supply v. New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 4, 6 (App. Term, 2d Dep’t, 2007). And show mailing within the appropriate time 16 177022 14 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 period. I & B Surgical Supply v. New York Cent. Mut. Fire Ins. Co., supra n. 2. Typically, an insurer’s affidavit refers to the date of printing of the form and describes a procedure which allegedly assures a properly addressed envelope containing the form was mailed on that day or the next business day. The sufficiency of the defendant insurer’s affidavit of mailing is challenged and disputed and the admissibility of the denial of claim forms if any, is challenged. 50. As to form and substance of a denial, a “proper denial of claim must include the information called for in the prescribed denial of claim form . . . and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’” and cannot be amended after the applicable time period has passed. See Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 (2d Dep’t, 2004) quoting General Acc. Ins. Group v. Cirucci, 46 NY2d 862, 864 (1979). 51. A denial is deficient if it is “factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.” Id. at 665, quoting Amaze Med. Supply v. Allstate Ins. Co., 3 Misc 3d 43, 44 (App. Term, 2d Dep’t, 2004). 52. Typical denials assert a defective assignment of benefits, belated filing of the claim, a lack of medical necessity (whether for the treatment or inflation in the quantum or cost of treatment), and that a charge exceeds permitted fee schedules. However, any of these denials, if any, and the reasons for the denials, must ne supported by an affidavit from someone with personal knowledge of the claim and the expertise of the defenses raised in the denials. Simple conclusory affidavits are not sufficient. 53. In relation to the form of a verification request, it must “request . . . information . . . relative to . . . [the] claim” from the claimant or identify to the claimant the persons or entities asked to provide the information. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 (2d 17 177022 15 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 Dep’t, 1999); Nyack Hosp. v. Encompass Ins. Co., 23 AD3d 535 (2d Dep’t, 2005) (“delay” letter explaining investigation underway [is] not a verification request). 54. On these issues, the court reaches a straightforward determination of law unless some cognizable question of ambiguity is raised by a litigant. Cf. Foley Prods. V. Singer Corp., 133 AD2d 531 (4th Dep’t, 1987) (where no ambiguity in document, no deferral for factual exploration). 55. Where a proper and timely denial is found, the court proceeds to the next analytic step. 4. Step 4: Summary Judgment Evaluation of Properly Cognizable Defenses 56. Only at this final stage are typical summary judgment principles applied to those defenses found preserved and unprecluded, as well as to any independent defenses, with recognition that the defendant bears the burden on such defenses for reasons set forth above. 57. Some defenses can be resolved as a matter of law and others on the basis of evidentiary standards appropriate to the nature of the case. “In ruling on such motions, when appropriate, courts should preserve judicial resources and not shy away from granting partial relief as to predicate elements where the record does not support a full determination (CPLR 3212 [e], [g]).” Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc. 3d supra at 1002 (emphasis added). 58. The point upon which opposition papers frequently stumble is the failure to present evidentiary material in admissible form. New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512, 513 (2d Dep’t, 2006); CPLR 3212 (b). 59. Formal or substantive requirements apply to certain affidavits. Support Billing & Mgt. Co. v. Allstate Ins. Co., 15 Misc3d 126(A) (App. Term, 2d Dep’t, 2007) (doctor must affix stamped facsimile signature (citing CPLR 2106)); Bath Med. Supply, Inc. v. Allstate Indem. Co., 18 177022 16 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 13 Misc 3d 142(A) (App. Term, 2d dep’t, 2006) (out-of-state affidavit needs certificate of conformity to comply with CPLR 2309 (c)); see All County Open MRI & Diagnostic Radiology P.C. v. Travelers Ins. Co., 11 Misc 3d 131(A) (App. Term, 2d Dep’t, 2006) (“peer review . . . conclud(ing) that there was no medical necessity due to ‘the lack of sufficient information’ upon which the reviewer could make such determination” deficient, absent proof of verification request for such information). 60. Exhibits should also be in admissible form or their proffer limited to admissible portions. See, as to police reports, Johnson v. Lutz, 253 NY 124 (1930); 58 NY Jur 2d Evidence and Witnesses § 480 (police reports, generally); § 503 (police report as to cause of accident or injury). And, even though “admissions by a party of any fact material to the issue are always competent evidence against [that party], wherever, whenever or to whomsoever made.” Reed v. McCord, 160 NY 330, 341 (1899). Some formal requirements may be applicable to assure accuracy. See R.M. Newell Co. v. Rice, 236 AD2d 843, 844 (4th Dep’t, 1997), lv denied 90 NY2d 807 (1997) (proffer of reporter-certified unsigned deposition transcript). c. Conclusion and Application 61. In this case, Horizon Rehabilitation, P.T., P.C., is pursuing this action as Assignee, of Collins, Andrea, to recover payment for all medical services rendered to Collins, Andrea in the amount of $1373.62 that still remains unpaid and outstanding, and is overdue. The denial of which and the admissibility of that denial if any, is challenged as the alleged denial is deficient if it is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law. 62. Defendant by assigning a claim number to this matter and having received a timely No-Fault Application has established that insurance coverage existed at the time of the Accident. Although, Defendant has never produced a copy of the insurance policy in this matter. 19 177022 17 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 Under CPLR 3101(f), “A party may obtain discovery of the existence and contents of any insurance agreement . . .” The purpose of this provision is to facilitate settlements by providing plaintiff with knowledge of limits of the defendant’s liability policies, including all primary and excess coverage. Thus, plaintiff is entitled to a copy of the actual policies. Anderson v House of Good Samaritan Hospital, 1 AD3d 970 (4th Dep’t, 2003); see also Matter of Allstate Ins. Co. v. Ganesh, 8 Misc 3d 922 (Sup. Ct., Bronx Cty., 2005) (Billings, J.) (“Any recitation of the contract’s terms through testimony or other documents in evidence is rank hearsay and contrary to the best evidence rule.”); see also New South Insurance Co. v. Dobbins, 2007 NY Slip Op 33965(U) (Sup. Ct., Nassau Cty., 2007) (Winslow, J.) (“At the outset, the Court notes that plaintiff (New South Insurance) has failed to attach a copy of the insurance policy in question. Insofar as plaintiff asserts that the policy does not provide coverage for the Incident or excludes coverage on the basis of defendant’s conduct, this failure constitutes a fatal defect in proof.”). 63. Horizon Rehabilitation, P.T., P.C. and persons acting under its direction, supervision and control performed the medically necessary and proper services, and then timely and properly generated and mailed all the attached claim form(s) to Defendant within the statutory time period, i.e. within 45-days of the date of service, for payment for medical necessary and proper services rendered to Collins, Andrea in the amount of $1373.62 that still remains unpaid and outstanding, and is overdue. 64. Horizon Rehabilitation, P.T., P.C. mailed in the regular and ordinary course of its business the proper claim form(s) and verifications responses if they were ever requested to Defendant. Defendant received the said claim form(s) and proper No-Fault verification responses for all medical services rendered by Horizon Rehabilitation, P.T., P.C. to Collins, Andrea, as no mailed claim form(s) and verification responses were returned to Horizon Rehabilitation, P.T., P.C. 65. Defendant violated the No-Fault statute and insurance regulations by failing to pay Horizon Rehabilitation, P.T., P.C. the outstanding amount on the said claim form(s) of $1373.62. 20 177022 18 of 20 FILED: KINGS CIVIL COURT - CIVIL 10/21/2023 06:34 AM INDEX NO. CV-739737-20/KI NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/21/2023 Defendant has had Horizon Rehabilitation, P.T., P.C.’s claims for more than thirty (30) days since the claim form(s) was initially submitted to and received by Defendant without payment or timely and proper verification request. See Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dep’t, 2009). 66. Based upon the aforesaid violation of N.Y. Ins. Law and the No-Fault Regulations, improper answer and attached proofs hereof, all the evidence in this ca