This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
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

                                - 1 -
                               - 2 -                          No. 75

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.

                               - 2 -
                               - 3 -                          No. 75

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.

                               - 3 -
                                - 4 -                         No. 75

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


                                - 4 -
                                 - 5 -                            No. 75

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.


                                 - 5 -
                              - 6 -                         No. 75

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.

                              - 6 -
                                - 7 -                        No. 75

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.

                                - 7 -
                                 - 8 -                       No. 75

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

                                 - 8 -
                              - 9 -                           No. 75

          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.

                              - 9 -
                              - 10 -                           No. 75

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]).


                              - 10 -
                              - 11 -                           No. 75

          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 no-
fault 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

                              - 11 -
                              - 12 -                         No. 75

"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.

                              - 12 -
                              - 13 -                          No. 75

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-

                              - 13 -
                              - 14 -                            No. 75

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,


                              - 14 -
                               - 15 -                           No. 75

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.




                               - 15 -
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


                                 - 1 -
                                - 2 -                        No. 75

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


                                - 2 -
                              - 3 -                           No. 75

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


                              - 3 -
                               - 4 -                        No. 75

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


                               - 4 -
                               - 5 -                         No. 75

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


                               - 5 -
                               - 6 -                          No. 75

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 long-
settled 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


                               - 6 -
                               - 7 -                         No. 75

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


                               - 7 -
                                - 8 -                         No. 75

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]).

                                - 8 -
                                - 9 -                          No. 75

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


                                - 9 -
                              - 10 -                          No. 75

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.




                              - 10 -
                                - 11 -                           No. 75

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




                                - 11 -
