Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co. (2008 NY Slip Op 51761(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 21, 2006, deemed in part from a judgment of said court entered February 1, 2007 (see CPLR 5501 [c]). The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment on its second cause of action. The judgment, entered pursuant to so much of the June 21, 2006 order as denied plaintiff’s cross motion for summary judgment on its first and third causes of action and granted defendant’s cross motion for summary judgment to the

extent of awarding defendant summary judgment on plaintiff’s first and third causes of action, dismissed plaintiff’s first and third causes of action.

Judgment affirmed without costs.

Order, insofar as appealed from, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of granting plaintiff summary judgment on its second cause of action, and matter remanded to the court below for the calculation of statutory interest [*2]and attorney’s fees thereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to three assignors, defendant moved, pursuant to CPLR 603, to sever plaintiff’s causes of action, plaintiff cross-moved for summary judgment, and defendant cross-moved for summary judgment. The court below granted defendant’s severance motion, denied plaintiff’s cross motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of granting defendant partial summary judgment with respect to plaintiff’s first cause of action (regarding assignor Andree Sarjoo) and third cause of action (regarding assignor Romelle Archer). Plaintiff appeals, arguing that it was entitled to summary judgment upon its three causes of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (see e.g. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s “PIP Litigation Representative,” in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment.

In opposition to plaintiff’s cross motion, and in support of its own cross motion, defendant asserted that, with respect to plaintiff’s claims for services rendered to Mr. Sarjoo (the first cause of action) and Mr. Archer (the third cause of action), it timely denied the claims in question on the ground that the services provided were not medically necessary based on affirmed peer review reports. Contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation, as neither peer review doctor stated in his peer review report that his determination was based on a lack of documentation. Instead, both reports set forth a factual basis and medical rationale for the doctors’ opinions that the MRIs billed for were not medically necessary. Accordingly, since plaintiff did not rebut the evidence in support of defendant’s cross motion upon these causes of action, the court below properly granted defendant’s cross motion with respect to plaintiff’s first and third causes of action (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to plaintiff’s remaining cause of action to recover upon the claim for services rendered to Sean-Anthony Cherry (the second cause of action), defendant denied the claim based upon Mr. Cherry’s alleged failure to appear at scheduled examinations before trial (EUOs). Since the affidavit submitted by defendant was insufficient to establish Mr. Cherry’s nonappearance at said EUOs, defendant failed to raise a triable issue of fact (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also Midisland Med., PLLC v New York [*3]Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51983[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, contrary to the determination of the court below, plaintiff was entitled to summary judgment with respect to its second cause of action.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
CROSSBRIDGE DIAGNOSTIC RADIOLOGY, P.C.
a/a/o ANDRE SARJOO, SEAN-ANTHONY CHERRY
and ROMELLE ARCHER,

Appellant, [*4]

-against-
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part, and votes to affirm the judgment, and the order insofar as appealed from, in the following memorandum:

I concur with the majority in its affirmance of the lower court’s denial of plaintiff’s cross motion for summary judgment as to the first and third causes of action and the granting of defendant’s cross motion for summary judgment as to the first and third causes of action, encompassing the dismissal of those causes of action. I dissent as regards the awarding of summary judgment to plaintiff with respect to the second cause of action.

With regard to the first and third causes of action, I agree with the majority’s finding that “contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation.” I, nonetheless, disagree with the majority’s finding relating to the second cause of action regarding the sufficiency of notice to the assignor Mr. Sean-Anthony Cherry.

Defendant denied those claims upon the assertion that Mr. Cherry failed to appear at a scheduled examination before trial (EUO). The majority finds, and I agree, that the affidavit submitted by defendant was insufficient to establish, in admissible form, the fact that Mr. Cherry failed to appear at the EUO. Indeed, defendant’s affiant failed to specify how she obtained the information that Mr. Cherry had failed to appear. The majority then cites to the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]) in support of its conclusion granting judgment to plaintiff.

I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (id.).

In that case, although the Appellate Division, Second Department, nominally affirmed the majority ruling of the Appellate Term, the court specifically rejected the artificial distinction my colleagues created between “pre” and “post” claims. More importantly, the Appellate Division held that, “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis added]).

Inasmuch as the notices to appear for the EUO were sent directly to the assignor and, in addition, there is no affidavit from the assignor that he either appeared or that he did not receive such notice, the evidence of notice has not been rebutted (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire. Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, it is now incumbent upon plaintiff to establish, in admissible form, that the assignor complied with the condition precedent, that is the assignor’s submission to the EUO. [*5]

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability (see also Quality Health Prods., Inc. v Progressive Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op _____, No. 2007-148 Q C, decided herewith).

Accordingly, I would deny both cross motions for summary judgment relating to the second cause of action, as was done in Stephen Fogel Psychological, P.C..