This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 75 

Viviane Etienne Medical Care, 

P.C., as assignee of Alem 

Cardenas,

 Respondent,

 v.

Country-Wide Ins. Co.,

 Appellant.

Thomas A. Torto, for appellant.

David M. Gottlieb, for respondent.

American Transit et al., amici curiae.

ABDUS-SALAAM, J.:

This appeal requires us to determine what proof a

plaintiff medical provider must advance to make a prima facie

showing of entitlement to summary judgment in a no-fault

insurance action. We hold that a plaintiff demonstrates prima

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facie entitlement to summary judgment by submitting evidence that

payment of no-fault benefits are overdue, and proof of its claim,

using the statutory billing form, was mailed to and received by

the defendant insurer. Proof evincing the mailing must be

presented in admissible form, including where it is applicable,

meeting the business records exception to the hearsay rule. 

Applying this rule to the facts of this case, plaintiff

demonstrated entitlement to summary judgment. Therefore, the

order of the Appellate Division should be affirmed, insofar as

appealed from, and the certified question answered in the

affirmative. 

I.

Following an automobile accident in June 2004, Alem

Cardenas received treatment for his injuries at the office of

plaintiff Viviane Etienne Medical Care, P.C. Cardenas's

automobile liability insurance policy with defendant Country-Wide

Insurance Company contained a New York State no-fault

endorsement. Cardenas assigned his right to receive no-fault

benefits to plaintiff. To receive reimbursement for the services

it rendered to Cardenas, plaintiff submitted to defendant eight

verification of treatment forms1 demonstrating the services

rendered or equipment provided, and the corresponding cost. Each

1 The forms used by the plaintiff are a standard form

distributed by the New York State Department of Financial

Services.

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form was signature stamped with "V Etienne MD." Within 15 days

from receipt of the verification of treatment form, an insurer

may seek further verification (see 11 NYCRR 65–3.5 [b]) and

within 30 days after receiving the verification of treatment

form, the insurer must pay or deny the claim (see Insurance Law §

5106 [a]; 11 NYCRR 65–3.8 [c]). Defendant denied payment on one

claim in the amount of $139 dated November 17, 2004. Defendant

did not respond to any of the other claims.

Plaintiff commenced this action seeking to recover

no-fault insurance benefits, asserting that it timely submitted

bills and claims for payment to defendant in the amount of

$6,130.70,2 but defendant had yet to make any payments, deny the

requests, or ask for verification of the claims. Plaintiff also

requested interest and attorney's fees under the Insurance Law. 

Defendant answered and asserted as an affirmative defense that

payment for plaintiff's claims was not overdue because plaintiff

failed to submit "proper proof of the fact and amount of the

loss" as required by the Insurance Law.

Plaintiff moved for summary judgment on its claims,

arguing that it had met its prima facie burden of showing the

fact and amount of loss sustained, and that the payment of the

benefits was overdue. As support, plaintiff submitted the

2 Due to an error in calculation, the reimbursement amount

sought in plaintiff's complaint was wrong. The actual total

amount billed to the insurer was $6,566.46. Plaintiff moved to

amend its complaint to reflect the actual amount of damages. 

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aforementioned eight verification of treatment forms as proof of

claim, along with seven mailing ledgers stamped by the United

States Postal Service indicating the date the forms were mailed,

and the denial of claim form. Additionally, plaintiff submitted

the affidavit of Roman Matatov, President of SUM Billing Corp.

(SUM Billing), a third-party billing company hired by plaintiff. 

In the affidavit, Matatov explained the company's

billing procedures. The medical providers must submit an

assignment of benefits form signed by the injured party along

with the injured party's identification prior to SUM Billing

sending out the verification of treatment forms to the insurance

companies for reimbursement. Matatov personally obtains the

insurance cards and police reports pertaining to the accident. 

He incorporates all the above documents into SUM Billing's

records and relies upon them in the performance of his business. 

In generating the verification of treatment forms, Matatov

requires the medical providers to submit to SUM Billing all

information necessary to complete the forms and sees that any

missing information is obtained from the providers. Matatov then

enters all the information to be included in the verification of

treatment form into a custom-designed software system that

creates the completed forms. Matatov averred that after the

forms are created, he logs the bills into a mailing ledger, and

personally mails the bills to the insurance company. The mailing

ledger is stamped by the United States Postal Service. Matatov

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stated that he "retain[s] sole responsibility for the mailing of

the documents created by [SUM Billing], and [he] personally

inspect[s] and verif[ies] the accuracy and completeness of every

envelope set to leave the office." The affidavit also described

the eight proof of claim forms that plaintiff submitted with its

motion for summary judgment. Matatov affirmed that consistent

with the described procedures, he mailed the eight proof of claim

forms to defendant. 

Defendant opposed the motion, arguing that plaintiff

failed to meet its prima facie burden as it did not put forth

evidence in admissible form, because all of plaintiff's exhibits

were hearsay with no applicable exception. It asserted that

Matatov's affidavit did not provide sufficient foundation for the

admission of the hearsay under the business records exception

because the affidavit "merely state[d] the bills were mailed" but

gave no other details required to meet the business records

exception under CPLR 4518 (a). 

Civil Court denied plaintiff's motion for summary

judgment "for failure to establish a prima facie case." The

Appellate Term, for the Second, Eleventh and Thirteenth

Districts, affirmed (31 Misc 3d 21 [2011]). Relying on the

Second Department's decision in Art of Healing Medicine, P.C. v

Travelers Home & Mar. Ins. Co. (55 AD3d 644 [2d Dept 2008]), the

Appellate Term held that Matatov's affidavit failed to lay a

sufficient foundation for the business records hearsay exception. 

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Specifically, the court stated that the "affidavit failed to

demonstrate that [Matatov] ha[d] personal knowledge of

plaintiff's practices and procedures and that he [was] competent

to testify about those practices and procedures" and

alternatively failed to demonstrate that SUM Billing

"incorporated plaintiff's medical records into its own and relied

upon them" (31 Misc 3d at 24, 25).

Insofar as relevant here, the Appellate Division, with

two justices dissenting, granted plaintiff's motion for summary

judgment with respect to all the claims that were not timely

denied by the insurer (114 AD3d 33).3 The court declined to

follow its decision in Art of Healing Medicine, P.C. v Travelers

Home & Mar. Ins. Co. (55 AD3d 644 [2d Dept 2008]), wherein it

held that the plaintiffs there "failed to establish their prima

facie entitlement to judgment as a matter of law" because "[t]he

plaintiffs' medical service providers failed to demonstrate the

admissibility of their billing records under the business records

exception to the hearsay rule" (id. at 664). The court concluded

that "Art of Healing constitutes an anomaly, a jurisprudential

drift from [the court's] well-established precedent"(114 AD3d at

3 All of the courts below denied plaintiff's motion for

summary judgment on one of its claims dated November 17, 2004, in

the amount of $139, as it was timely denied by the insurer. That

propriety of that determination is not before this Court as

plaintiff did not cross-appeal its denial. 

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44, 45).4

The court stated:

"We reaffirm the longstanding precedent that,

in this context, the plaintiff makes a prima

facie showing of entitlement to judgment as a

matter of law by submitting evidence, in

admissible form, that the prescribed

statutory billing forms were mailed to and

received by the defendant insurer, which

failed to either pay or deny the claim within

the prescribed 30-day period" 

(114 AD3d at 35). Applying that standard, the Appellate Division

determined that, with the exception of the claim that was denied,

plaintiff established prima facie entitlement to summary judgment

as a matter of law "by demonstrating that its prescribed

statutory billing forms used to establish proof of claim were

mailed to and received by the defendant and that . . . defendant

failed to either timely pay or deny the claims" (id. at 46). The

court determined that defendant in opposition failed to raise a

triable issue of fact because it was precluded from raising the

defense that the proof of claim forms were inadmissible under the

business records exception to hearsay as it did not deny the

claim within the statutory time frame (id. at 47).5

The Appellate Division remitted the case to Civil Court

4 The court noted that it had relied upon Art of Healing in

the context of no-fault insurance in only one case, Matter of

Carothers (79 AD3d 864, 864-865 [2d Dept 2010]). 

5 The dissenting justices concurred in part and dissented

in part, voting to affirm the order of Appellate Term and uphold

the decision in Art of Healing. 

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to determine whether plaintiff was entitled to statutory interest

and attorney's fees. Thereafter, the court granted defendant's

motion for leave to appeal to this Court, certifying the question

of whether its determination was properly made. 

 

II. 

The Comprehensive Motor Vehicle Insurance Reparations

Act, commonly referred to as the "No–Fault Law" (see Insurance

Law article 51) is aimed at ensuring "prompt compensation for

losses incurred by accident victims without regard to fault or

negligence, to reduce the burden on the courts and to provide

substantial premium savings to New York motorists" (Matter of

Medical Socy. of State of NY v Serio, 100 NY2d 854, 860 [2003],

citing Governor's Mem approving L. 1973, ch. 13, 1973 McKinney's

Session Laws of N.Y. at 2335). This Court has recognized the

complicated nature of the statutory and regulatory scheme of the

no-fault law (Presbyterian Hosp. in City of NY v Maryland Cas.

Co., 90 NY2d 274, 286 [1997] [describing the scheme as a

"'Rube–Goldberg–like maze'"]). In Fair Price Med. Supply Corp.

v. Travelers Indem. Co., we described the no-fault regime as

follows:

"'The[ ] regulations require an accident

victim to submit a notice of claim to the

insurer as soon as practicable and no later

than 30 days after an accident (see 11 NYCRR

65–1.1, 65–2.4 [b]). Next, the injured party

or the assignee . . . must submit proof of

claim for medical treatment no later than 45

days after services are rendered (see 11

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NYCRR 65–1.1, 65–2.4 [c]). Upon receipt of

one or more of the prescribed verification

forms used to establish proof of claim, . . .

an insurer has 15 business days within which

to request "any additional verification

required by the insurer to establish proof of

claim" (11 NYCRR 65–3.5 [b]). An insurer may

also request "the original assignment or

authorization to pay benefits form to

establish proof of claim" within this time

frame (11 NYCRR 65–3.11 [c]). Significantly,

an insurance company must pay or deny the

claim within 30 calendar days after receipt

of the proof of claim (see Insurance Law §

5106 [a]; 11 NYCRR 65–3.8 [c]). If an

insurer seeks additional verification,

however, the 30–day window is tolled until it

receives the relevant information requested

(see 11 NYCRR 65–3.8 [a] [1])'"

(Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d

556, 562–563 [2008], quoting Hospital for Joint Diseases, 9 NY3d

321, 317 [2007]; see Insurance Law § 5106 [a]).6

Where an insurer fails to pay or deny a claim within

the requisite 30 days under the statute and regulations 

following its receipt of the proof of claim, the insurer is

subject to "substantial consequences," namely, preclusion "from

asserting a defense against payment of the claim" (Fair Price, 10

NY3d at 563 [internal quotation marks omitted]). The only

exception to preclusion recognized by this Court arises where an

insurer raises lack of coverage as a defense (see id.; Hospital

6 Plaintiff commenced this action in September 2005, prior

to adoption of the April 1, 2013 amendments to the no-fault

insurance regulations, including the additions to 11 NYCRR 65-3.5

and 11 NYCRR 65-3.8. The amended regulations are not applicable

to this case and, therefore, have no bearing on this decision.

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for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at

318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,

199 [1997]). This Court has recognized that preclusion may

require an insurer to pay a no-fault claim it might not have had

to honor if it had timely denied the claim (see Presbyterian

Hosp., 90 NY2d at 285). Nonetheless, we emphasized that the

great convenience of "prompt uncontested, first-party insurance

benefits" is "part of the price paid to eliminate common-law

contested lawsuits" (id.; see Fair Price, 10 NY3d at 565–566).

Prior to Art of Healing and following its abandonment,

the Second Department has held that "[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 insurer, and that

payment of no-fault benefits was overdue" (Westchester Med. Ctr.

v. Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011];

see New York Hosp. Medical Center of Queens v QBE Ins. Corp., 114

AD3d 648, 648 [2d Dept 2014]). Other Appellate Division

Departments have adopted the Second Department's approach and

articulated the same standard (see e.g. Sunshine Imaging

Assn./WNY MRI v Government Empls. Ins. Co., 66 AD3d 1419, 1420

[4th Dept 2009]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50

AD3d 313, 314 [1st Dept 2008]; LMK Psychological Servs., P.C. v

Liberty Mut. Ins. Co., 30 AD3d 727, 728 [3d Dept 2006]).

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We agree with the Appellate Division Departments that a

summary judgment motion in a no-fault insurance case where the

benefits are overdue, requires proof that the statutory claim

forms were mailed to and received by the insurer. The

legislative design of the no-fault insurance scheme demonstrates

an interest in prompt resolution of reimbursement claims, a

desire to avoid litigation, and statutory consequences on an

insurer to incentivize it to seek verification of a claim, deny

it, or pay. As this Court has stated:

"No-fault reform was enacted to provide

prompt uncontested, first-party insurance

benefits. That is part of the price paid to

eliminate common-law contested lawsuits. 

. . . The tradeoff of the no-fault reform

still allows carriers to contest ill-founded,

illegitimate and fraudulent claims, but

within a strict, short-leashed contestable

period and process designed to avoid

prejudice and red-tape dilatory practices"

(Presbyterian, 90 NY2d at 285 [citation omitted]; see Hospital

for Joint Diseases, 9 NY3d at 320). Consistent with these

interests, a medical provider seeking reimbursement from a nofault insurer demonstrates its entitlement to reimbursement of

overdue benefits when it proves that it submitted a completed

claim form to the insurer. A claim is overdue if it is not

denied or paid within 30 days of the insurer's receipt of proof

of claim (see 11 NYCRR 65–3.8 [a] [1]; Insurance Law § 5106 [a]).

Thus, it follows that a claim is not overdue when it is timely

denied by the insurer. 

The requisite proof in a no-fault insurance case is

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"proof of the fact and amount of the loss sustained" (Insurance

Law § 5106 [a]). To establish entitlement to summary judgment on

overdue no-fault benefits, the medical provider is required to

submit proof of mailing through evidence in admissible form. 

Such proof may include the verification of treatment form and/or

an affidavit from a person or entity (1) with knowledge of the

claim and how it was sent to the insurer or (2) who has relied

upon the forms in the performance of their business.7 Thus, even

where an insurer is precluded from raising a defense to the proof

of claim form because of its failure to timely deny the claim,

the plaintiff medical provider must, as an initial matter,

demonstrate its entitlement to summary judgment by submission of

proof in admissible form.

Admissible evidence may include "affidavits by persons

having knowledge of the facts [and] reciting the material facts"

(GTF Marketing v Colonial Aluminum Sales, 66 NY2d 965, 967

[1985]; CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d

557, 562). Certain affidavits and documents submitted in support

of a motion for summary judgment may be deemed admissible where

7 While many of the Appellate Division decisions

determining that a medical provider had submitted sufficient

proof of mailing and overdue reimbursement do not describe the

actual documents submitted to support the motion for summary

judgment (see e.g. Westchester Med. Ctr. v. Progressive Cas. Ins.

Co., 89 AD3d 1081, 1082 [2d Dept 2011]; LMK Psychological Servs.,

P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [3d Dept 2006]),

it appears that verification of treatment forms and/or affidavits

describing the mailing are the types of documents typically

considered.

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those documents meet the requirements of the business records

exception to the rule against hearsay under CPLR 4518 (see e.g.

JPMorgan Chase Bank, N.A. v Clancy, 117 AD3d 472, 472 [1st Dept

2014]; Education Plus, Inc. v Glasser, 112 AD3d 1125, 1125-1126

[3d Dept 2013]; Melendez v 176 Hopkins Associates, LP, 28 AD3d

723, 723 [2d Dept 2006]). CPLR 4518 (a) provides:

"Any writing or record, whether in the form

of an entry in a book or otherwise, made as a

memorandum or record of any act, transaction,

occurrence or event, shall be admissible in

evidence in proof of that act, transaction,

occurrence or event, if the judge finds that

it was made in the regular course of any

business and that it was the regular course

of such business to make it, at the time of

the act, transaction, occurrence or event, or

within a reasonable time thereafter."

IV. 

Applying these principles to the instant facts, the

Appellate Division properly determined that plaintiff met its

prima facie summary judgment burden. As relevant here, to

support its motion, plaintiff submitted the eight verification of

treatment forms and Matatov's affidavit. The documents submitted

by plaintiff meet the business records exception to the hearsay

rule. 

Matatov's affidavit states that based on his business

agreement with plaintiff, SUM Billing created the verification of

treatment forms in the regular course of its business and that

the forms were created soon after the services were provided by

plaintiff to Cardenas. Indeed, the tight timetable of the no-

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fault scheme requires prompt submission of proof of claim in

order to receive reimbursement. Matatov's affidavit outlines the

office practices and procedures used by SUM Billing to mail claim

forms to insurers and demonstrates that Matatov himself mails the

forms. Matatov explained that SUM Billing relies on these forms

in the performance of its business. Further, the affidavit

states how and when the forms at issue here were created and that

they were mailed to defendant within the statutory time frame. 

Thus, as plaintiff was able to demonstrate SUM Billing's office

mailing practices and procedures, "a presumption arises that

those notices have been received by the insure[rs]" (Nassau Ins.

Co. v Murray, 46 NY2d 828, 829 [1978]). It is undisputed that

defendant did not pay or deny seven out of the eight claims at

issue. Consequently, those claims are overdue. Plaintiff,

therefore, satisfied its burden on summary judgment by

demonstrating the mailing of the proof of claim forms, and their

receipt by the insurer. 

The Appellate Division also properly determined that

defendant failed to raise a triable issue of fact in opposition. 

In fact, defendant concedes that it is precluded from raising any

defense due to its failure to timely deny the claims.

Contrary to the dissent's contention, the risk of an

insurer paying out fraudulent claims has been recognized by this

Court (see Presbyterian Hosp., 90 NY2d at 285); however, as we

have stated that risk is part of the price paid for swift,

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uncontested resolution of no-fault claims. Where no-fault

benefits are not overdue, because of timely denial, the insurer's

compliance with the statute and regulations allows it to retain

its right to contest the claims and prevent payment of fraudulent

claims. An insurer providing no-fault benefits, may not simply

sit on its hands until litigation is commenced. Some action is

required. 

Accordingly, the order of the Appellate Division,

insofar as appealed from, should be affirmed, with costs, and the

certified question answered in the affirmative.

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Viviane Etienne Medical Care PC a/a/o Alem Cardenas v Country

Wide Ins. Co.

No. 75

STEIN, J.(dissenting):

The majority holds that a plaintiff medical provider in

a no-fault case establishes prima facie entitlement to summary

judgment by demonstrating that the insurer was billed and failed

to timely deny or pay the billed claim. In my view, neither the

statutory and regulatory no-fault scheme, nor our cases

concerning the preclusion doctrine, obviate a plaintiff's burden

to demonstrate its prima facie entitlement to benefits sought, as

compared to only proof of billing and non-payment. I, therefore,

respectfully dissent. 

Pursuant to the statutory no-fault scheme, automobile

insurance policies must provide for the payment of first party

benefits to certain persons "for loss arising out of the use or

operation in this state of [a] motor vehicle" (Insurance Law §

5103 [a] [1]; see 11 NYCRR 65-1.1). Stated simply, first party

benefits are capped "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 [a];

see Insurance Law § 5102 [b]). Covered expenses include those

incurred for "necessary" medical services (Insurance Law § 5102

[a] [1]). Thus, to establish entitlement to no-fault benefits

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for medical services, a party must demonstrate that the loss

arose from an automobile accident and that the expenses incurred

were medically necessary. 

Under the detailed no-fault regulations implementing

the Insurance Law, a claimant must submit a notice of claim to

the insurer as soon as reasonably practicable, but no later than

30 days after the accident (see 11 NYCRR 65-1.1, 65-2.4 [b]; Fair

Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-

563 [2008]). If the claimant receives medical services, the

claimant -- or his or her assignee -- must submit written proof

of claim for that treatment to the insurer within 45 days of the

provision of services (see 11 NYCRR 65-1.1, 65-2.4 [c]). This

proof of claim must include "full particulars of the nature and

extent of the injuries and treatment received and contemplated"

(11 NYCRR 65-1.1). Upon receipt of a prescribed verification

form, the insurer has 15 days to request "any additional

verification required . . . to establish proof of claim" (11

NYCRR 65-3.5 [b]; Fair Price, 10 NY3d at 563).

As particularly relevant here, an insurer must pay or

deny a claim, in whole or in part, within 30 calendar days of

receipt of the proof of claim or any additional verification

requested (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1];

[c]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co.,

9 NY3d 312, 317 [2007]). The majority accurately states that a

failure to do so carries "substantial consequences" (Hospital for

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Joint Diseases, 9 NY3d at 317). Namely, pursuant to Insurance

Law § 5106 (a), a failure to pay or deny benefits within 30 days

of receipt of "proof of the fact and amount of loss sustained"

renders benefits "overdue," and all overdue payments bear

interest at a rate of 2% per month (see 11 NYCRR 65-3.8 [a] [1];

Hospital for Joint Diseases, 9 NY3d at 317-318). Further, a

claimant is entitled to recover attorney's fees for overdue

payments (see Insurance Law § 5106 [a]). In addition to the

statutory penalties, we have held that a failure to timely pay or

deny a claim will result in an insurer being precluded from

interposing a defense against payment of the claim, except where

the defense raised is lack of coverage (see Fair Price, 10 NY3d

at 563-565; Hospital for Joint Diseases, 9 NY3d at 318-319;

Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d

274, 283 [1997]). 

Defendant Country-Wide Insurance Company readily

concedes that, assuming that plaintiff Viviane Etienne Medical

Care, P.C., has met its prima facie burden of showing entitlement

to payment of its claims, the statutory penalties are applicable

and defendant is precluded from raising a defense due to its

failure to timely pay or deny the claims. The majority holds

that, because these penalties are applicable to plaintiff's

claims, plaintiff is entitled to judgment based on its showing of

proof of billing, receipt, and non-payment. I, however, find no

basis to conclude that any of the aforementioned penalties that

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may be imposed against defendant obviate plaintiff's burden to

make a prima facie showing of entitlement to benefits -- i.e.,

that the loss arose from an automobile accident and that the

expenses incurred were medically necessary -- a showing that

defendant would then be precluded from challenging. 

As indicated by the lack of a direct citation to any

statutory authority for the majority's position, no language in

the Insurance Law or the relevant regulations compels the

conclusion that the Legislature intended to excuse a no-fault

plaintiff from demonstrating entitlement to benefits as a penalty

to the insurer. The Insurance Law does not provide that, because

benefits are "overdue" and the insurer is therefore subject to

certain enumerated repercussions, a plaintiff need not proffer

admissible evidence establishing the basic elements of a no-fault

claim. Rather, the rule now adopted by the majority -- that only

proof of billing and the absence of timely denial or payment are

required to obtain reimbursement -- was derived by the Appellate

Division Departments from our cases creating and defining the

preclusion rule (see e.g. Westchester Med. Ctr. v Progressive

Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011], citing

Presbyterian Hosp., 90 NY2d 274 [1997]; New York & Presbyt. Hosp.

v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2d Dept 2007],

citing Presbyterian Hosp., 90 NY2d 274 [1997]). In my view, the

extension of the preclusion doctrine established by the majority

in this case is misguided because our preclusion cases did not

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effectuate a change to a plaintiff's burden on summary judgment. 

It is well established that "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" (Alvarez

v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New

York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In other words,

"'[t]o obtain summary judgment it is necessary that the movant

establish [a] cause of action . . . 'sufficiently to warrant the

court as a matter of law in directing judgment' in [the movant's]

favor (CPLR 3212 subd [b]), and [the movant] must do so by tender

of evidentiary proof in admissible form'" (Zuckerman v City of

New York, 49 NY2d 557, 562 [1980], quoting Friends of Animals v

Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see Bush v St.

Clare's Hosp., 82 NY2d 738, 739 [1993]). "Failure to make such

prima facie showing requires a denial of the motion, regardless

of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at

324). Applying these uncontroverted principles here, the

preclusion rule, which prevents an insurer from raising most

defenses to a no-fault claim, comes into play only after the

plaintiff's prima facie case has been demonstrated. That is, the

preclusion doctrine has no application to the facts before us

because defendant seeks only to hold plaintiff to its initial

summary judgment burden. 

While proof of billing and the absence of timely denial

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or payment may be required in order to invoke the preclusion

rule, we have never held that such proof constitutes a prima

facie showing of entitlement to judgment in a no-fault

plaintiff's favor. In fact, the State Insurance Department has

interpreted the interplay between summary judgment and the

preclusion rule in exactly the manner I propose, taking the view

that, "[t]hough an insurer’s defense to payment of claim may be

precluded under the [preclusion] cases, . . . the claimant must

still meet the statutory requisite and make out a prima facie

case of entitlement to benefits," which requires that

"reimbursable expenses must arise out of a motor vehicle accident

and be medically necessary to treat the injuries" (Ops. Gen

Counsel NY Ins Dept No. 00-01-02 [January 2000]). Likewise,

while we held that the insurer in Hospital for Joint Diseases was

precluded from contesting the validity of a signature on an

assignment form, we separately addressed the insurer's challenge

insofar as it implicated the plaintiff's burden to demonstrate a

prima facie case (see 9 NY3d at 319-320). Unlike our approach in

that case, the majority now conflates the preclusion rule with

the summary judgment burden, effectively eviscerating our longsettled summary judgment principles in the no-fault context

despite the absence of any such direction from the legislature. 

The practical effect of the majority's holding today is

that courts lack authority to verify that a no-fault plaintiff

has established the basic facts supporting a claim prior to

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awarding judgment, which is a result inconsistent with our

summary judgment rules and, indeed, is not one endorsed even with

respect to defaulting defendants (compare CPLR 3125 [f]). These

rules are designed, at least in part, to prevent the perpetration

of fraud upon the court. Moreover, an insurer's duty to pay or

deny a claim within 30 days is not triggered until it receives

"proof of the fact and amount of loss sustained" (Insurance Law §

5106 [a]; see 11 NYCRR 65-3.8 [a] [1]). Yet, the majority's rule

arguably eviscerates any avenue for insurers to contest even

whether a verification of treatment form contains sufficient

information to constitute "proof of the fact and amount of loss

sustained" -- or in other words, whether the payments were

actually overdue -- since proof of the mailing of the prescribed

form, without any regard to its contents or its completeness,

will now carry a plaintiff's burden on summary judgment. In a

system that we have recognized as already plagued by wide-spread

abuse (see generally Pommells v Perez, 4 NY3d 566, 571 [2005];

Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854,

861 [2003]), the majority's rule unnecessarily increases the risk

that insurers will be required to pay out fraudulent claims,

which is detrimental, not only to the insurer, but also to

claimants, whose entitlement to benefits (which is subject to a

maximum amount) will consequently be reduced. This is a result

that should not be countenanced by our judicial system, whose

duty it is to fairly apply the law, and one which was not

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intended by either the legislature or our preclusion cases. 

It also bears noting that the rationale behind the

preclusion doctrine, upon which the majority implicitly relies,

does not support its application here. To be sure, a "core and

essential objective" of the no-fault structure "is[] to provide a

tightly timed process of claim, disputation and payment"

(Presbyterian Hosp., 90 NY2d at 281), and the preclusion doctrine

provides an incentive for insurers to comply with the regulatory

time frame. However, where, as here, the objection is to the

evidentiary admissibility of the NF-3 verification of treatment

forms -- not to the accuracy or validity of their contents -- it

would be impossible for the insurer to raise the objection before

the plaintiff's summary judgment motion was brought, inasmuch as

the insurer would have no way of knowing what evidentiary

foundation would be offered.1

Significantly, requiring a plaintiff to establish its

prima facie entitlement to benefits, rather than mere proof of

billing, would not place on no-fault claimants an onerous burden

that would impede the timely resolution of valid claims or

1 To the extent the majority implies that an insurer should

routinely issue timely denials of claims or verification requests

in order to preserve its right to contest those claims, it seems

to me, that this approach would directly conflict with the

principles of fair practice set forth in the no-fault

regulations. Such regulations provide that insurers should

utilize fair claims processes and refrain from demanding

verification "unless there are good reasons to do so" (11 NYCRR

65-3.2 [a], [c]).

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increase no-fault litigation. The statutory NF-3 verification of

treatment form is a permissible proof of claim with respect to a

non-hospital health care provider (see 11 NYCRR 65-3.11 [b]). 

This form contains, among other things: necessary information

regarding the provider, insurer, and the insured; a space for the

"diagnosis and concurrent conditions"; boxes to check, indicating

when the symptoms appeared and whether they are solely a result

of an automobile accident; a space for a "report of services

rendered"; and an assignment of benefits section [61-63]. As the

Appellate Division dissenters aptly stated, plaintiff's prima

facie case on the merits "would have been satisfied here if the

plaintiff had simply submitted the proof of claim forms in

admissible form" (114 AD3d at 49). 

However, the affidavit proffered by plaintiff to

support admission of the NF-3 forms -- which must be received for

their truth to establish the "fact and amount of loss sustained"

(Insurance Law § 5106 [a]), as should be required -- falls short. 

Although the affidavit of Roman Matatov, the president of

plaintiff's third-party billing service, stated that he had

personal knowledge of the mailing of the NF-3 forms to defendant,

he had no personal knowledge of plaintiff's record-keeping

procedures or practices in creating the documents based on which

he compiled those forms. Thus, Matatov was unable to lay a

sufficient foundation for the admissibility of the NF-3 forms

under the business records exception to the hearsay rule (see

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CPLR 4518 [a]; People v Brown, 13 NY3d 332, 341 [2009]; People v

Cratsley, 86 NY2d 81, 90 [1995]; Matter of Leon RR, 48 NY2d 117,

122-123 [1979]), and inadmissible hearsay is insufficient to

establish a prima facie case entitling plaintiff to summary

judgment (see generally Zuckerman, 49 NY2d at 562). I simply do

not see why it would be unduly burdensome to require plaintiff to

submit a proper affidavit, either from Matatov or a knowledgeable

employee of the medical provider's practice. 

In sum, in light of the absence of any explicit

language in the no-fault statutes or regulations eliminating a

plaintiff's burden to establish a prima facie case of entitlement

to benefits or any indication of a legislative intent to

eliminate such burden, and because the preclusion doctrine is not

triggered until a prima facie showing has been made, I find no

basis to diverge from our traditional rules pertaining to summary

judgment motions. Thus, I would conclude that proof of billing,

receipt, and non-payment is simply insufficient to carry

plaintiff's prima facie case here. Rather, plaintiff should be

obligated to proffer, in accordance with the basic rules of

evidence, admissible NF-3 forms to demonstrate the merits of its

claims, which defendant would then be precluded from contesting. 

Accordingly, I would reverse the Appellate Division order.

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* * * * * * * * * * * * * * * * *

Order, insofar as appealed from, affirmed, with costs, and

certified question answered in the affirmative. Opinion by Judge

Abdus-Salaam. Chief Judge Lippman and Judges Pigott, Rivera and

Fahey concur. Judge Stein dissents in an opinion in which Judge

Read concurs.

Decided June 10, 2015

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