Heavenly Points Acupuncture v Integon Natl. Ins. Co. (2021 NY Slip Op 50895(U))

Index No. CV-723275-19/QU

Plaintiff’s counsel:
Mandell & Santora PC
29 Broadway
Lynbrook, NY 11563

Defendant’s counsel:
Rosillo & Licata LLP 355 Post Avenue, Suite 204
Westbury, NY 11590

I. Papers

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723275-19/QU dated February 10, 2020 (“Motion 1“) and file stamped by the court on February 13, 2020. 1

Plaintiff’s Affirmation in Opposition under index number CV-723275-19/QU dated May 19, 2020 (“Opposition 1“) and electronically filed with the court on May 20, 2020. 2

Defendant’s Reply Affirmation under index number CV-723275-19/QU dated April 27, 2021 (“Reply 1“) and electronically filed with the court on May 12, 2021. 3

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723253-19/QU dated February 10, 2020 (“Motion 2“, together with Motion 1, the “Motions“) and file stamped by the court on February 13, 2020. 4

Plaintiff’s Affirmation in Opposition under index number CV-723253-19/QU dated May 19, 2020 (“Opposition 2“) and electronically filed with the court on May 20, 2020. 5

Defendant’s Reply Affirmation under index number CV-723253-19/QU dated April 27, 2021 (“Reply 2“) and electronically filed with the court on May 12, 2021. 6

In a summons and complaint under index number CV-723275-19/QU filed on October 31, 2019, Plaintiff sued Defendant insurance company to recover $1,110.36 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Allen from June 29, 2019 to July 18, 2019, plus attorneys’ fees and statutory interest (see Motion 1, Aff. of Scozzari, Ex. A). In a summons and complaint under index number CV-723253-19/QU filed on October 31, 2019, Plaintiff sued Defendant to recover $970.96 in unpaid first party No-Fault benefits for medical services provided to Allen from August 14, 2019 to August 30, 2019 (see Motion 2, Aff. of Scozzari, Ex. A). In both actions, Defendant moved for summary judgment dismissing Plaintiff’s complaints on the ground that the services Plaintiff rendered to Allen were not medically necessary. Plaintiff opposed Defendant’s Motions. An oral argument by both parties was conducted before this Court on September 1, 2021. Both parties agreed that the arguments in both actions were identical except for the dates of service and the respective amounts claimed. For judicial efficiency, this Court decides both motions together because they raise identical issues of law within a virtually identical factual background.

III. Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim (Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Here, the affidavits of Defendant’s No-Fault examiner Dougert sworn February 6, 2020, which were appended to the Motions, establishing Defendant’s regular office mailing procedures showed Defendant timely denied Plaintiff’s claim (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; see Progressive Cas. Ins. Co. v Infinite Ortho Prods, Inc., 127 AD3d 1050, 1051 [2d Dept 2015]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In our instant matters, Defendant based its denials of Plaintiff’s claims on lack of medical necessity. Defendant presented the sworn peer review report of Dr. T. McLaughlin, an acupuncturist and chiropractor, who reviewed Allen’s chiropractic examination report, pain fiber nerve conduction study, initial physical examination report, physical therapy progress notes, and physical therapy prescription from March 2019 (see Motions, Scozzari Aff., Ex. B). Dr. McLaughlin also performed a physical examination of Allen on April 30, 2019, in which he specified the tests he performed. Dr. McLaughlin tested Allen’s range of motion in the cervical, thoracic, and lumbar spine and the upper and lower extremities which revealed normal ranges of motion as compared to the maximum range and no other abnormalities. Dr. McLaughlin’s evaluation of Allen under traditional Chinese medicine also revealed normal findings. Here, Dr. McLaughlin’s report established lack of medical necessity for the services Plaintiff provided (Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *1 [App Term 2d Dept 2017]; Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066 * 1 [App Term 2d Dept 2015]; Lenox Hill Radiology & MIA, [*2]P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680 *1 [App Term 2d Dept 2015]; Ayoob Khodadadi, M.D., MRI, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51968 * 1 [App Term 2d Dept 2012]).

In opposition, Plaintiff presented an affidavit dated May 4, 2020, in which Winslow, LA, who treated Allen, attested that she “reviewed the IME Report of Dorothy McLaughlin, DC, dated April 30, 2019.” (Opposition 1 and Opposition 2, Aff. of Nof, Ex. A at 1). Initially, this Court assumes that the reference to “Dorothy McLaughlin” in Winslow’s report was a typographical error. Based on review of medical records and treatment notes, Winslow attested that Allen had “reduced range of motion, continued complaints of pain and weakness, and reduced muscle strength, and continued complaints of tenderness and spasm,” (Id.) which indicated that Allen required further treatment. Winslow also attested that her treatment notes contradicted Dr. McLaughlin’s opinion, and concluded that additional physical therapy after the IME was medically necessary. Winslow’s affidavit “did not meaningly refer to, or discuss” Dr. McLaughlin’s report, so is insufficient to raise factual issues regarding medical necessity of the services Plaintiff provided (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50884[U] *2 [App Term 2d Dept 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] *2 [App Term 2d Dept 2009]). Similarly, Winslow’s statement that her treatment notes contradicted Dr. McLaughlin’s opinion was conclusory (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), particularly since Plaintiff did not present the notes to which she referred.

It is well established that “expert’s affidavit must contain four elements: (1) the expert’s qualification; (2) the facts underlying the expert’s opinion; (3) the technical, scientific or other authoritative basis supporting the opinion; and (4) the opinion itself” (Avoiding the Conclusory When Preparing Experts’ Affidavits, Feb. 27, 2015 N.Y.L.J.) and that conclusory opinions in expert affidavits lack probative value (Sparks v Detterline, 86 AD3d 601, 602 [2d Dept 2011]; Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]). Once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party’s showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, in our instant matters, Defendant’s expert applied various facts, i.e., Allen’s medical history and current complaint, experts’ physical examination on Allen, Allen’s range of motion and Allen’s medical condition at cervical spine, upper extremities, thoracic, lower extremities and lumbar, to western modern medical science, technology and cited authorities, as well as to traditional Chinese medicine, and had come to a conclusion that Allen’s treatment was not medically necessary. On the contrary, Plaintiff’s expert omitted the requirements of an expert’s affidavit, i.e., the underlying facts and the scientific basis upon which her opinion relied, but simply stated a conclusion/an opinion that Allen’s treatment by her was medically necessary. Here, Plaintiff’s expert affidavit failed to sufficiently rebut Defendant’s expert affidavit, and thus failed to defeat Defendant’s prima facie showing.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims in both actions can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Innovative Chiropractic, P.C. v New York Cent. [*3]Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), and that Defendant is entitled to dismissal of Plaintiff’s complaints in both actions.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motions for summary judgment are granted and that Plaintiff’s complaints are dismissed in both actions, and it is further

ORDERED that the part clerk is directed to mark the index numbers in both actions disposed for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 17, 2021
Queens County Civil Court
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Honorable Wendy Changyong Li, J.C.C.