Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered January 29, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,197.90.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $2,197.90.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of claim form had been based, should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the [*2]event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report (see Staten Is. Advanced Surgical Supply v GEICO Ins. Co., 58 Misc 3d 143[A], 2017 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). We note that an insurer cannot use a peer review report to prove its defense of lack of medical necessity or to impermissibly bolster its expert’s testimony (see e.g. Promed Orthocare Supply, Inc., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 23, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 18, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 18, 2015, the Civil Court denied the motion and cross motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “defendant’s personal knowledge of defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a [*2]matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) finding that the first EUO scheduling letter had been timely mailed, arguing that the individual who executed the affidavit of mailing of the EUO scheduling letters did not demonstrate knowledge of the practice and procedures for receipt of the claim forms, which were mailed to defendant’s office in Atlanta, Georgia. Plaintiff also challenges the Civil Court’s implicit CPLR 3212 (g) finding that defendant established plaintiff’s failure to appear for the EUOs. However, a review of the record establishes that the Civil Court correctly determined that defendant had established plaintiff’s failure to appear for the EUOs. Moreover, defendant’s practices and procedures regarding the receipt of its mail are irrelevant (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d, 11th & 13th Jud Dists 2018]). As a result, the Civil Court should have granted defendant’s motion for summary judgment.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

718659/17

For plaintiff:
David Landfair Esq.
Kopelevich & Feldsherova PC
241 37th Street, Suite B439
Brooklyn, NY 11232

For defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747

RECITATION, AS REQUIRED BY CPLR2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

In this action to recover first party no fault benefits, defendant moves for an order granting summary judgment and dismissing the complaint based on plaintiff’s failure to respond within 120 days to defendant’s initial request for verification.

In support of the motion, defendant submits the affidavits of its claim examiner in New York, Ms. McAndrews, and an employee of Auto Injury Solutions “AIS,” in Alabama, Ms. Ulmer. AIS is retained by defendant to receive and disseminate incoming mail related to no fault claims made against defendant, and, to mail medical providers or their assignees, verification requests which claims adjusters in New York electronically transmit to AIS. Ms. Ulmer submits two different affidavits, both dated August 4, 2017, which set forth AIS’s procedure for mailing verification requests, and procedure for documenting its receipt of incoming mail. Ms. McAndrews’ affidavit describes defendant’s procedures for electronically preparing and transmitting to AIS, defendant’s requests for verifications and denials.

Summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman at 395).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]).

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570, 774 NYS2d 72 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]).

In the instant action, the basis of defendant’s motion, to wit, plaintiff’s failure to provide requested verifications, requires defendant to unequivocally prove by admissible evidence that it did not receive the requested verification. Defendant’s conclusory denial of receipt, is insufficient to make out prima facie showing of defendant’s entitlement to summary judgment. (See Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 36 N.Y.S.3d 46 [App Term, 2nd Dept 2016]).

While any mail containing plaintiff’s response to verification request would have been received by AIS in Alabama, Ms. McAndrews, defendant’s adjuster in New York, is the only affiant who states that AIS did not receive response to the verification requests, absent any evidence of her personal knowledge of AIS’s incoming mail procedures. Without demonstrating her personal knowledge of AIS’s internal mailing practices, Ms. McAndrew’s assertion that AIS did not receive verification responses lacks probative value. (see J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127[A], 55 N.Y.S.3d 692 [App Term, 1st Dept 2017]).

Ms. Ulmer, the affiant purportedly knowledgeable of AIS’s mailing procedures, states that she conducted a diligent search of the records in possession of AIS regarding the instant matter. She then lists the records, which she states are “annexed hereto,” but does not identify any exhibit, to which the described records are attached. Rather, there are some exhibits to the motion that contain records, which only defense counsel references in his affirmation. Defense counsel does not submit proof however, that the records annexed to those exhibits, are the records referenced in Ms. Ulmer’s affidavit, and that those records are all the documents Ms. Ulmer’s search had yielded.

Absent admissible evidence that the documents contained in the exhibits represent the totality of all documents obtained by Ms. Ulmer, defendant fails to establish, through any exhibit, the nature and the extend of the records that are in AIS’s possession.

Furthermore, Ms. Ulmer’s affidavit, describing the records she had obtained through her search, is ambiguous and insufficient to establish defendant’s burden that AIS has not received response to the verification requests.

Ms. Ulmer’s states that her “investigation revealed the following:” which she then attempts to numerically describe. Yet, Ms. Ulmer’s numeric description refers only to events, not the essence of the document necessary for its identification. Immediately appearing after the number one, the affidavit states: “document was received by AIS on 1/18/2017,” after number two, that “the document was indexed,” following numbers four and the five that “copies of EOR and NF10 were sent to the provider” and “to the assignor.”

As to item number three, Ms. Ulmer states that “the charges listed on the bill totaled $1039.69″ without providing any further details.

The inherent vagueness of Ms. Ulmer’s affidavit in her description of the records she had obtained, undermines defendants’ attempt to prove that AIS has not received response to the verification requests.

Moreover, while Ms. Ulmer could have avoided the ambiguity by unequivocally stating that her search did not reveal any response to verification requests, Ms. Ulmer, in contrast to Ms. McAndrews, does not make any such statement. Nor does she state that the records she attempted to describe, are the only records in AIS’s possession.

Furthermore, the ambiguous affidavit becomes evidently inaccurate, when Ms. Ulmer incorrectly states “all the documents” (including the bill prepared by plaintiff in the sum of $1039.69) were “prepared” in the regular course of” business of AIS, underscoring the unreliability the affidavit.

The Court further notes that Ms. Ulmer submits two distinct affidavits that are both executed in Alabama on August 4, 2017. CPLR 2309(c) states that an oath taken outside of New York State must be accompanied by a certificate, commonly referred to as “certificate of conformity” attesting that the oath that was taken in the foreign state was done so in accordance with the laws of that jurisdiction or of New York.

Defendant fails to produce an original “certificate of conformity” for either affidavit. Instead, defendant annexes to both affidavits identical copies a single certificate of conformity. Even, should the court decide to accept copies of the certificate of conformity in lieu of the original, defendant’s failure to provide copies of two separate certificates of conformity for each affidavit, renders the affidavits inadmissible as a matter of law.

Based on the foregoing, defendant failed to establish its entitlement to summary judgement by admissible evidence. Defendant’s motion for summary judgement is therefore denied.

Dated: November 21, 2018
ODESSA KENNEDY
JUDGE OF THE CIVIL COURT