Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Sofya Petrukhin of counsel), for appellant. Peter C. Merani, P.C. (Brian Kratenstein, Eric Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 7, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover upon a claim for $167.04 and upon the allegedly unpaid balance of its remaining claims. Defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered January 7, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Plaintiff correctly argues that defendant’s moving papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie entitlement to summary judgment on its cross motion, as plaintiff failed to establish either that defendant had failed to deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

702062/16

Counsel for Plaintiff: Law Offices of Gabriel & Shapiro, LLC

Counsel for Defendant: Rossillo & Licata, PC

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Saliently, defendant avers that insofar as it paid the claims submitted by plaintiff in accordance with the relevant fee schedule for such services, it has established its fee schedule defense thereby warranting summary judgment in defendant’s favor. Plaintiff opposes the instant motion asserting that insofar as defendant’s coder misapplies the relevant fee schedule, the amounts paid to plaintiff were insufficient. Thus, plaintiff contends that questions of fact preclude summary judgment.

For the reasons that follow hereinafter, defendant’s motion is granted.

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On August 9, 2015, CHARLES ROBINSON (Robinson) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained therein. Robinson was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Robinson assigned to plaintiff. On September 21, 2015 plaintiff provided treatment to Robinson totaling $3,900, said treatment was covered by defendant’s policy, was billed to defendant, but was nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, [*2]49 NY2d 557, 562 [1980]). A defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds, Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly and generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit it in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a motion for summary judgment the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and [*3]extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered (11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (id.; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]). Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.”]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens at 584 New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 [“Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days.”]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700 [“Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run.”]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a [*4]matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17—18 [App Term 2007] [“In the instant case, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that 18 items are properly addressed and mailed. We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]) should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]), or that denial within the 30 day prescribed by law wasn’t given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control [*5]or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A), *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant’s business records established defendant’s defense – timely denial (id. at 433-434)^[FN2] .

With respect to the value of medical services rendered, 11 NYCRR 65-3.8(g) limits the amounts payable to those promulgated by the chairman of the worker’s compensation board for industrial accidents. To be sure, Insurance Law § 5108(a) states that

[t]he charges for services specified in paragraph one of subsection (a) of section five thousand one hundred two of this article and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge.

Thus, Insurance Law § 5108(a) limits a medical provider’s recovery under the no-fault portion of an insurance policy, and said limitation is further reiterated within 11 NYCRR 65-3.8(g)(ii), which obviates an insurer’s obligation to pay for services exceeding the amounts allowed under Insurance Law § 5108(a) (see 11 NYCRR 65-3.8[g][ii][“Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated [*6]thereunder for services rendered by medical providers.”]).

Thus, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule and such defense is available even if payment or denial are not tendered within 30 days of the submission (Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], *1 [App Term 2018] [“Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014.”]; Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 143(A), *1 [App Term 2017] [“Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion.”]; Surgicare Surgical Assoc. v Natl. Interstate Ins. Co., 50 Misc 3d 85, 87 [App Term 2015]). Accordingly, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1 [“Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractor.”]; Surgicare Surgical Assoc. at 86 [“Plaintiff billed $10,800 for the services (associated with arthroscopic knee surgery), but defendant-insurer paid only $5,996.67 on the claim, an amount in accordance with the New Jersey Fee Schedule.”]). Thus, an insured establishes its fee schedule defense when it tenders an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. v Am. Tr. Ins. Co., 56 Misc 3d 134(A), *1 [App Term 2017]; Compas Med., P.C. v Am. Tr. Ins. Co., 56 Misc 3d 133(A), *1 [App Term 2017]; Sama Physical Therapy, P.C. v Am. Tr. Ins. Co., 53 Misc 3d 129(A), *1 [App Term 2016]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140(A), *1 [App Term 2015]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127(A), *2 [App Term 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23, 25 [App Term 2009]).

Defendant’s motion for summary judgment is granted insofar as the evidence tendered in support thereof establishes that defendant timely paid plaintiff’s claim in accordance with the relevant fee schedule. While the amount paid was less than the amount billed, defendant establishes that the amount billed was in excess of the amount allowed for the procedure actually performed under the relevant fee schedule.

In support of its motion, defendant submits an affidavit by Peg Kohle (Kohle), defendant’s Claim Specialist, who states, in pertinent part, as follows: Since January 2015, Kohle has been employed by defendant as a Claims Specialist in defendant’s no-fault department. Kohle is personally familiar with defendant’s business practice as it relates to the processing New York Personal Injury Claims (PIP), including defendant’s Enterprise Claims System (ECS) and the creation of all documents related to defendant’s decisions concerning PIP claims. After detailing defendant’s custom and practice with respect to receipt, processing, paying and/or denying PIP claims submitted to it by medical providers, Kohle describes documents relevant to this action, appended to her affidavit, and which she incorporates by reference. Specifically, Kohle states that on November 2, 2015, defendant received a bill from plaintiff for medical treatment it provided to Robinson on September 21, 2015. As per the form, plaintiff sought no-fault reimbursement from defendant in the amount of $3,900. A review of defendant’s claim file indicates that Robinson had been involved in an accident on August 9, 2015 and made a no-fault claim from defendant in connection therewith. Kohle states that upon defendant’s review of the bill, defendant paid the claim pursuant to the New York State Workers Compensation Fee Schedule. Specifically, on December 1, 2015, defendant denied a portion of the claim while concomitantly paying $291.32 to plaintiff. Defendant’s denial of the claim was memorialized in a denial form sent to plaintiff and within an explanation of review form appended thereto. Kohle asserts that the foregoing forms are defendant’s business records, generated in the regular course of defendant’s business records.

Defendant also submits an affidavit by Charles Campanelli (Campanelli), Operations Manager for Signet Claim Solutions, LLC (Signet), who states, in pertinent part, as follows: Signet’s business includes the retention, upon request, of fee schedule and medical coding experts to perform reviews of medical records and bills for purposes of determining whether services were billed in accordance with the relevant fee schedule. Defendant is Signet’s client and was retained to hire an expert to review a plaintiff’s bill for medical services provided to Robinson. In connection with defendant’s retention of Signet, defendant provided relevant records to Signet, including plaintiff’s bill and the records provided by plaintiff with the same. Signet then retained Mercy Acuna (Acuna), an expert, to review the foregoing records, and who then provided Signet with a report memorializing her opinion. Acuna’s report was created and retained in the regular course of Signet’s business and said report was appended to Campanelli’s affidavit.

Defendant submits an affidavit by Acuna, wherein she incorporates by reference, her report within which she proffers her opinion regarding plaintiff’s bill for services rendered to Robinson. Acuna states that her report is accurate, that the opinion in her report is based on her education, training and experience as well as a review of plaintiff’s bill, the records appended thereto and the relevant New York State Workers Compensation Chiropractic Fee Schedule.

Defendant submits the bill referenced by Kohle, which indicates that on September 21, 2015, it treated Robinson. Specifically, the bill indicates that it performed Pain Fiber Nerve Conduction Studies (PFNCS) upon Robinson’s upper and lower extremities, that 9599 was the corresponding Fee Schedule Treatment Code and that the value of said services was $3,900. The reports appended to the bill indicate upon which what parts of the body the procedures were performed and the results thereof. Defendant also submits the denial of claim form and explanation of review form referenced by Kohle, which indicate that on December 1, 2015, it paid plaintiff $291.32 for the services rendered to Robinson. The explanation of review form indicates that $291.32 represents payment for the tests performed at $145.66 for the upper extremities and $145.66 for the lower extremities. Per defendant’s form, the foregoing rates are in accordance with the relevant fee schedule.

Defendant submits Acuna’s report and the documents upon which she relied (plaintiff’s reports regarding the tests performed upon Robinson, AMA CPT Assistant, New York Workers’ Compensation Chiropractic Fee Schedule, information regarding the AXON II Neural Scanner). Acuna states that she is a Registered Nurse and also a member of the American Academy of Professional Coders (AAPC), a national coding certification organization. Acuna has also worked as a coding reimbursement specialist since 1997 and in order to join AAPC took classes in coding and compliance. Based on Acuna’s review of the foregoing documents, she states that because PFNCS testing only measures amplitude and not velocity/latency, the test performed by plaintiff on Robinson was a quantitative sensory test. As per the AMA CPT Assistant, Acuna states that the appropriate treatment/billing code for the test performed is 0110T. According to the New York Workers’ Compensation Chiropractic Fee Schedule, the foregoing treatment code has no fixed Relative Value and instead, contains a “BR” under the Relative Value column which means the billing physician has to “establish a unit value consistent in relativity with other unit values shown in the schedule.” Acuna opines that the closest corresponding treatment code for the testing performed is 95904 which has a Relative Value of $12.60. Since the Conversion Factor in the schedule applicable to plaintiff is $5.78 (Region 4), the allowable fee for the testing performed is $72.83 per extremity (Relative Value x Conversion Factor), for a total of $145.66 for the lower extremity and an additional $145.66 for the upper extremity. Thus, as per the fee schedule, plaintiff was entitled to receive and, did in fact, receive $291.42 for the tests performed.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment insofar as the foregoing evidence establishes that defendant timely paid the instant claim in accordance with the relevant fee schedule.

Again, as noted above, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule (Oleg’s Acupuncture, P.C. at *1; Z.M.S. & [*7]Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 87). Thus, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 86). An insured establishes its fee schedule defense by tendering an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. at *1; Compas Med., P.C. at *1; Sama Physical Therapy, P.C. at *1; GBI Acupuncture, P.C. at *1; Raz Acupuncture, P.C. at *2; Great Wall Acupuncture, P.C. at 25).

Here, Acuna, an expert coder opines, based on a review of plaintiff’s bills, the reports of treatment rendered to Robinson, and ample reference material, including the applicable fee schedule, that the amounts billed by plaintiff are at variance and in excess of the relevant fee schedule such that the amounts paid by defendant were appropriate and in accordance to the fee schedule. As such, defendant establishes prima facie entitlement to summary judgment.

Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Significantly, plaintiff’s submission is bereft of any evidence and it proffers no countervailing expert opinion. Instead, plaintiff, by counsel, actually agrees with the bulk of Acuna’s opinion – conceding that its initial treatment code was improper, that 0110T is the appropriate code for the tests performed, but that 95864 is the most appropriate code under the relevant fee schedule. As such, plaintiff urges that it is entitled to compensation for each nerve tested rather than for just the lower and upper extremities.

Plaintiff’s opposition, bereft of any evidence to support its assertion is insufficient to raise an issue of fact (LMS Acupuncture, P.C. v Geico Ins. Co., 42 Misc 3d 150(A), *1 [App Term 2014] [“With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.” (internal citations omitted).]). In light of Acuna’s affidavit and a review of the literature upon which she relies, it is clear that medical billing in accordance with the relevant fee schedule requires an expertise beyond the ken of the layman (De Long v Erie County, 60 NY2d 296, 307 [1983] [“The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.”]). Thus, this Court holds that an issue of fact with regard to her determination – dispositive in this case – can only be raised by the divergent opinion of another expert.

Indeed, assuming arguendo, that here, plaintiff’s attorney affirmation could, by itself, controvert Acuna’s opinion, plaintiff’s scant and conclusory attack on her opinion would nevertheless fall woefully short. For example, counsel makes no effort to reference any relevant documentation for his position that 95864 is the more appropriate billing code. Instead, citing to nothing, he merely asserts the same. Nor does plaintiff’s assertion that Acuna’s opinion is not premised on facts in the record avail it. It is true that expert testimony must be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence (Cassano v. Hagstrom, 5 NY2d 643, 646 [1959]; Gomez v New York City Hous. Auth., 217 AD2d 110, 117 [1995]; Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [1982]), and here, as discussed in detail, Acuna’s opinion is firmly grounded on facts in the record. Moreover, the documents from which those facts were extrapolated were properly before the Court. Thus, defendant’s motion is granted. It is hereby

ORDERED that the plaintiff’s complaint be dismissed, with prejudice. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon all plaintiff within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Fidel E. Gomez, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: It bears mentioning that the court’s reasoning in Hosp. for Joint Diseases – that “[p]ersonal knowledge of [defendant’s] documents, their history, or specific content are not necessarily required of a document custodian” (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment – is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Decided on March 9, 2018

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Medgine Bernadotte, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 29, 2014. The order, insofar as appealed from, upon denying defendant’s motion for summary dismissing the complaint, declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”

ORDERED that the order, insofar as appealed from, is modified by striking the provision therein that, “At trial [plaintiff] has the burden to prove . . . whether it fully complied with [defendant’s] verification requests”; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs.

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 provide verification which defendant had requested. Plaintiff opposed the motion and annexed its verification responses to its opposition papers. Plaintiff appeals from so much of the order of the Civil Court entered September 29, 2014 as declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”

Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.”

We decline plaintiff’s request to make a CPLR 3212 (g) finding in plaintiff’s favor (see S & R Med., P.C. v GEICO Gen. Ins. Co., 52 Misc 3d 133[A], 2016 NY Slip Op 51013[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision therein that, at trial, plaintiff has the burden to prove “whether it fully complied with [defendant’s] verification requests.”

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

[*1]

Civil Court of the City of New York, Kings County, February 24, 2018

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for plaintiff.

Jaffe & Koumourdas & Mohavicka, LLP, New York City (Thomas Torto of counsel), for defendant.

Background/History

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, inter alia, after a final appellate decision in its favor, for additional attorney’s fees pursuant to 11 NYCRR 65-4.6 of “no less than $250,000.00.”

The original order of the Honorable Carolyn Wade, dated March 6, 2009 (2009 WL 10454195 [Civ Ct, Kings County, Mar. 6, 2009, index No. 1208322005]), denied plaintiff’s motion for summary judgment based upon its failure to establish its prima facie case. Subsequently, the decision and order was appealed to the Appellate Term, for the Second, Eleventh and Thirteenth Judicial Districts, which affirmed (31 Misc 3d 21 [2011]). Thereafter, the Appellate Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (114 AD3d 33, 46 [2d Dept 2013]), with two dissenting Justices, reversed, holding,

“(T)he plaintiff established, prima facie, its entitlement to judgment as a matter of law by demonstrating that its prescribed statutory billing forms used to establish proof of claim (see 11 NYCRR 65-1.1) were mailed to and received by the defendant and that the defendant failed to either timely pay or deny the claims (see Insurance Law § 5106; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d at [*2]1082; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604).”^[FN1]

The Court of Appeals affirmed. (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].){**59 Misc 3d at 581}

Arguments of the Parties Regarding Additional Attorney’s Fees

For context, the court incorporates by reference its prior interim decision and order dated June 2, 2017, and restates relevant portions summarizing the arguments of respective counsel.

Plaintiff argued, inter alia, that as the legal issue of a medical provider’s prima facie showing was an issue that was considered by the Court of Appeals, the same was novel and unique and therefore warrants additional legal fees.

In opposition, defendant contended, inter alia, that plaintiff’s application for attorney’s fees of “no less than $250,000” is beyond this court’s jurisdictional limit, and that nonetheless, plaintiff is not entitled to excess attorney’s fees because the issues in this no-fault action were not novel or complex. For example, in support of its appeal to the Appellate Term, plaintiff’s counsel served and filed a four-page appellant’s brief and when the matter reached the Court of Appeals upon defendant’s appeal of the order of the Appellate Division, the Court of Appeals decision began with established principles encompassing a plaintiff medical provider’s prima facie case and concluded by predicating its conclusion on the admissibility of an affidavit. In short, defendant argued that the issue of evidentiary proof on a summary judgment motion is not novel or unique and that even if plaintiff’s counsel “expended a great deal of ‘time, money and effort’ on this case . . . it is not enough by itself to warrant the award of additional attorney’s fees.”

As to additional attorney’s fees in matters involving a claim for first-party no-fault benefits, 11 NYCRR subpart 65-4, Regulation No. 68-D governs the limitations of the same. The applicable subdivisions read as follows:^[FN2]

“(e) . . . the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.

“(f) Notwithstanding the limitations listed in this section, if the arbitrator or a court determines that the issues in dispute were of such a novel or unique{**59 Misc 3d at 582} nature as to require extraordinary skills or services, the arbitrator or court may award an attorney’s fee in excess of the limitations set forth in this section. An excess fee award shall detail the specific novel or unique nature of the dispute which justifies the award.” (11 NYCRR 65-4.6 [emphasis added].)

As was observed in Maxwell v State Farm Mut. Auto. Ins. Co. (115 AD2d 190, 192 [3d Dept 1985]):

“The focus on the excess award determination is not necessarily on the results achieved [*3]but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney’s behalf . . . . [In this case] the primary issues were settled on well-established rules of contract law and statutory construction. While counsel is to be commended for his efforts, the fact remains that the issues were not so novel or unique as to justify an excess fee award.”

In Dumlao v State Farm Ins. Co. (173 AD2d 517 [2d Dept 1991]), the Court held that the issue of whether the injury was caused by an accident covered under the policy or whether it resulted from a preexisting arthritic condition was not sufficiently unique to warrant departure from the maximum attorney’s fee provided for under the insurance regulation.

In the instant matter, the issue of whether an affidavit of service from a third-party billing company is sufficient to establish plaintiff medical provider’s prima facie case—i.e., entitlement to reimbursement for assigned first-party no-fault benefits—was ultimately certified by the Appellate Division to the Court of Appeals. Inasmuch as the Court of Appeals accepted the certified question, this court found that the issue presented is sufficiently novel so as to warrant consideration of additional attorney’s fees in accordance with 11 NYCRR 65-4.6.^[FN3]

{**59 Misc 3d at 583}As such, a hearing was warranted to determine additional attorney’s fees. Parenthetically, plaintiff’s counsel’s contention that a comparatively large attorney’s fee for a modest principal award is appropriate based upon Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co. (179 AD2d 645 [2d Dept 1992]) is misplaced. The appropriateness of an increased attorney’s fee in excess of $850 will be determined based upon applicable considerations of a reasonable attorney’s fee (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839 [2016] [“the award of attorneys’ fees, whether pursuant to agreement or statute, must be reasonable and not excessive”]).

In Matter of Rahmey v Blum (95 AD2d 294, 300 [2d Dept 1983]), which is a seminal case on the calculation of a reasonable attorney’s fee, the Court laid out an “analytical framework . . . to aid the courts in computing a reasonable attorney’s fee.” (See also Law Off. of Thaniel J. Beinert v Litinskaya, 43 Misc 3d 1205[A], 2014 NY Slip Op 50504[U] [Civ Ct, Kings County 2014].)

The court in Ousmane v City of New York (22 Misc 3d 1136[A], 2009 NY Slip Op 50468[U], *9-10 [Sup Ct, NY County 2009]) utilized the lodestar method, as elaborated in Rahmey, of determining the reasonableness of awarding attorney’s fees and that methodology is expressed as follows:

“A. Hours Reasonably Expended

“The first step to be taken in arriving at a fair and appropriate award of attorneys’ fees [*4]under the lodestar method is to determine whether the number of hours claimed were reasonably ‘expended from contemporaneous time sheets.’ Becker v. Empire of America Federal Savings Bank, 177 AD2d 958 (4th Dept 1991); see also Rahmey, 95 AD2d at 300-301. The court need not automatically accept inadequately documented hours or those hours which reflect ‘padding, i.e., hours that are excessive or otherwise unnecessary.’ Rahmey, 95 AD2d at 301. The following factors are also to be considered in assessing the reasonable hours worked: the extent to which the hours reflect inefficiency or duplicative work; legal work versus non-legal work, investigations, and other work performed{**59 Misc 3d at 584} by non-lawyers; time spent in court differentiated from out-of-court efforts; and the court’s own knowledge, experience and expertise as to the time required to complete a similar task. Id.; see also Matter of Spingarn, 164 Misc 2d 891, 894 (Sup Ct, NY County 1995).” (Emphasis omitted.)

Regarding the hourly fee charged by counsel making the application for attorney’s fees, the court in Carroll v Weill (2008 NY Slip Op 32512[U], *8 [Sup Ct, NY County 2008, Ramos, J.]) stated,

“To determine the reasonable hourly billing rate, the ‘prevailing market rate’ or the rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation’ applies (Blum v Stenson, 465 US 886, 896 [1984]); Farbotko v Clinton County of N.Y., 433 F3d 204 [2d Cir 2005]).”

While it is well established that “[t]he focus on the excess award determination is not necessarily on the results achieved but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney’s behalf” (Maxwell, 115 AD2d at 192), there is scarcely any case law on the determination of an appropriate attorney’s fee award in this specialized field of no-fault law.

In Liebman v New Jersey Mfrs. Ins. Co. (123 Misc 2d 697 [Civ Ct, Bronx County 1984]), the court granted an excess fee award based upon the court granting an hourly rate that was found within the regulations while allowing the jury to determine the number of hours. At the time, the court held that the attorney’s compensation should be $75 per hour for “out of court time” and $150 per hour for “in court time” (Liebman, 123 Misc 2d at 701). Prior to the repealing of the original Regulation No. 68, which implemented New York’s No-Fault Law, in 2001, the provision pertaining to an attorney’s fee, former 11 NYCRR 65.17 (b) (6) (iv) dictated that

“(a) for preparatory services relating to the arbitration forum or court, the attorney shall be entitled to receive a fee of up to $70 per hour . . . and . . .

“(b) in addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.”

The revised Regulation No. 68-D, effective post April 5, 2002, incredibly, did not change the hourly compensation (former 11{**59 Misc 3d at 585} NYCRR 65-4.6 [d] [1], [2]). Lastly, the sixth amendment to Regulation No. 68, which is not applicable to the services at issue, which revised certain aspects of attorney’s fees, likewise, did not change an hourly compensation rate for the practice of no-fault law (11 NYCRR 65-4.6 [c]). It appears that the hourly compensation rate was largely unchanged albeit modestly increased from $35 per hour for out of court services and $50 per hour for in court services in the late 1970s (11 NYCRR 65.16 [c] [7] [iii] [a], [b]).

However, the statute in effect at the time services were rendered, 11 NYCRR 65-4.6 (f) (the most recent amendment on Feb. 4, 2015, contains virtually the same language found but under subdivision [e] of 11 NYCRR 65-4.6), is clear and unambiguous, and the words “[n]otwithstanding the limitations listed” and “court may award an attorney’s fee in excess of the limitations,” will be given their plain meaning (State of New York v Patricia II., 6 NY3d 160[*5][2006]) and a legal fee based on the usual and customary hourly fees charged by attorneys practicing no-fault law, taking into consideration reasonably comparable skill, experience, and reputation, under a lodestar or quantum meruit standard, will be awarded if at least one of those standards is met.

Although this court in its interim order dated June 2, 2017, determined that it would award “reasonable” attorney’s fees based on the lodestar standard, the court may also make an award under quantum meruit through its inherent authority to do so. (See Beacon Fed. Sav. & Loan Assn. v Marks, 97 AD2d 451 [2d Dept 1983].)

Even where the attorney rate is found to be reasonable, the court may reduce the fee if it finds the amount of time spent rendering legal services was excessive. See Metropolitan Lofts of NY, LLC v Metroeb Realty 1, LLC (46 Misc 3d 1222[A], 2015 NY Slip Op 50251[U], *12 [Sup Ct, Kings County 2015, Demarest, J.]):

“The Court has further determined, however, that a 10% discount is necessitated by the duplication apparent in some of the billing. Although the hourly billing rates are reasonable, the number of hours is found to be excessive (see NYCTL 1996-1 Trust v Stavrinos Realty Corp., 113 AD3d 602, 604-605 [2d Dept 2014]; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1008, 1010 [2d Dept 2010]; Friedman v Miale, 69 AD3d 789, 791 [2d Dept 2010]).”

{**59 Misc 3d at 586}Lastly, the court noted that as the attorney’s fees sought are statutory and are not a part and parcel of the principal award, the jurisdictional limit of $25,000 is not applicable (see NY City Civ Ct Act § 201; Metrotran Adv. Trust Fund v Cado Trans., 156 Misc 2d 725 [Civ Ct, Kings County 1993]).

The Court in DeGregorio v Bender (52 AD3d 645, 646 [2d Dept 2008]) summarized the standards:

“In fixing an award of legal fees in quantum meruit, the court should consider ‘evidence of the time and skill required in that case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit from the services, and the fee usually charged by other attorneys for similar services’ ” (citing Rosenzweig v Gomez, 250 AD2d 664 [1998]).

The Attorney’s Fee Hearing

The court held an attorney’s fee hearing on September 26, 2017, September 27, 2017, September 28, 2017, and October 3, 2017, pursuant to 11 NYCRR 65-4.6.

Testimony of Max Valerio, Esq. (Plaintiff’s Witness)

The court heard testimony from Max Valerio, Esq., a subpoenaed witness, who testified on behalf of the plaintiff’s counsel that he is a former partner of the law firm and has worked on “hundreds of appeals.” Mr. Valerio estimated that he spent approximately 20 hours doing research and 20 hours writing the four-page brief which was submitted to the Appellate Term. Mr. Valerio had no independent recollection and no contemporaneous time records. Mr. Valerio estimated that he spent 5-10 hours preparing for the Appellate Term argument. Mr. Valerio testified that he also spent 10-20 hours preparing the motion for leave to appeal to the Appellate Division. After the motion was granted, he was involved in drafting the brief which was eventually submitted to the Appellate Division. No one else helped him in researching, writing or editing the brief. Mr. Valerio testified that he “probably” spent 80 hours working on the appellate brief, or a period of approximately two weeks. There was no record on appeal prepared by plaintiff’s counsel inasmuch as the appeal was based on the clerk’s return. Mr. [*6]Valerio testified that he read the opposition brief from the defendant and spent between 10-20 hours working on the reply and two to four hours preparing for oral argument in the Appellate{**59 Misc 3d at 587} Division. Mr. Valerio’s hourly rate in 2005 ranged from $300-$500 per hour depending on the nature of his legal services rendered. There was an argument he made in the Appellate Division which lasted one-half hour.

The court accepts Mr. Valerio’s testimony to the extent that he performed legal services regarding the appeal covering the period up to and including the argument before the Appellate Division, and that he alone worked on the briefs, and that the lowest rate utilized when billing at an hourly rate was $300 per hour, but otherwise finds his testimony generally not credible.

Testimony of David Gottlieb, Esq. (Plaintiff’s Witness)

The court heard testimony from David Gottlieb, Esq., who worked for plaintiff’s counsel in 2010 and has perfected hundreds of appeals in the Appellate Term, and the Appellate Division, First and Second Departments, as well as two appeals in the New York State Court of Appeals. Mr. Gottlieb was on Brooklyn Law School’s Law Review and was admitted in 2005. Mr. Gottlieb has conducted approximately 100 no-fault bench trials. Mr. Gottlieb prevailed in his law firm’s competition as to who would present the oral argument in the Court of Appeals. The draft of the Court of Appeals brief was circulated throughout the law firm for feedback from other members of the firm. Mr. Gottlieb testified that he spent approximately six hours reviewing the record, and eight hours reviewing and researching citations within the defendant’s brief. The first draft of the Court of Appeals brief took 10 hours, the second draft took 20 hours. The final draft took 10 hours. There were at least 43 emails involving feedback from other members of the firm. The reply brief (Court of Appeals) took six hours to get through (14 pages). Mr. Gottlieb checked all cites and quotes. After reviewing the reply in the Court of Appeals, Mr. Gottlieb prepared a motion to allow the filing of amicus briefs. The preparation for the argument in the Court of Appeals was 28 hours. Mr. Gottlieb reviewed videos of arguments made in the Court of Appeals in preparation and spent a total of 130 hours working on the appeal to the Court of Appeals including oral argument. There were costs from the appellate printers, but no bills for these costs were admitted into evidence. Mr. Gottlieb did not keep contemporaneous time records.

The court accepts Mr. Gottlieb’s testimony that he performed legal services regarding the appeal covering the period of time{**59 Misc 3d at 588} from the date of the Appellate Division decision through the decision in the Court of Appeals, but because there was inadequate testimony regarding hourly rate fees and no contemporaneous time records, the court otherwise finds his testimony insufficient for establishing a reasonable hourly rate or time spent providing legal services. Under cross-examination, regarding certain services performed, Mr. Gottlieb testified as follows, “from what I remember . . . (2 hours of watching videos)” and “cannot tell for sure.”

Stephan Belinfanti, Esq. (Plaintiff’s Witness)

Mr. Belinfanti was admitted to the bar in 2001, and worked for Country-Wide Insurance Co. as a staff attorney in mid-2004, as well as other insurance defense firms and eventually started working for plaintiff’s counsel in September 2010. Mr. Belinfanti has conducted hundreds of bench trials and six jury trials, three of which concluded with a verdict, and has perfected a number of appeals. This court has had Mr. Belinfanti appear before it at numerous bench trials and recognizes his talent and competence. However, Mr. Belinfanti likewise did not keep any contemporaneous time records and the court is unwilling to accept testimony regarding estimates of “minimum” time spent in performing certain legal tasks. The court did not find Mr. [*7]Belinfanti’s testimony regarding attorney rates, to the extent there was such testimony, to be sufficient.

Gary Tsirelman, Esq. (Plaintiff’s Witness)

Mr. Tsirelman is the principal of the plaintiff’s counsel’s firm and has been an attorney for 16 years. Mr. Tsirelman is well qualified in the area of no-fault law having an office of 40 employees with 16 lawyers with 95% of his cases involving no-fault. Mr. Tsirelman testified that he spent 10 hours working on the appeal in the Appellate Term, six hours researching and editing, three hours working up defendant’s brief, and one hour discussing the appeal with Mr. Valerio. Regarding the appeal to the Appellate Division, Mr. Tsirelman spent 40 hours working on the appeal as follows: 20 hours editing/researching, 10 hours reading and rereading defendant’s brief and 10 hours discussing procedure and strategy with Mr. Valerio. Mr. Tsirelman detailed how 10 attorneys participated in moot court in preparation for the argument in the Court of Appeals. Mr. Tsirelman spent 10 hours editing and researching the Court of Appeals brief, three hours considering anticipated opposition,{**59 Misc 3d at 589} and six hours helping to get Mr. Gottlieb ready for his oral argument in the Court of Appeals.

Mr. Tsirelman testified that senior attorneys are billed at $500/hour for Racketeer Influenced and Corrupt Organizations Act no-fault defenses, declaratory actions, and breach of contract cases. This rate is placed in all retainers except for no-fault cases. The court finds that certain of the tasks were duplicative and excessive.

Sedmund Resciniti (Defendant’s Witness)

Mr. Resciniti is an attorney with 57 years’ legal experience who has a significant background in insurance law and testified on behalf of the defendant as someone with specialized knowledge in the area of No-Fault Law. Mr. Resciniti testified that he was employed by Allstate Insurance Company in 1960 and since 1962 maintained his own practice with a specialty in insurance law and no-fault. Although Mr. Resciniti testified regarding his interpretation of the statute as to the maximum hourly rate that can be charged by an attorney in an excess fee application, such an interpretation is completely disregarded because such province resides exclusively with the court. (See Measom v Greenwich & Perry St. Hous. Corp., 268 AD2d 156, 159 [1st Dept 2000] [“(e)xpert testimony as to a legal conclusion is impermissible”], citing People v Kirsh, 176 AD2d 652, 653 [1991], lv denied 79 NY2d 949 [1992].) However, the court does consider Mr. Resciniti’s opinion that the hourly rate for no-fault legal services was $50 per hour between 2005 and 2015.^[FN4] Mr. Resciniti has perfected six to seven appeals in the Court of Appeals, 35-40 appeals in the Appellate Division, and argued in approximately 20 matters in the Appellate Division, First and Second Departments, but has never tried a no-fault case in civil court and has only appeared in arbitration proceedings. Mr. Resciniti testified as to the time it would take to accomplish certain tasks by the plaintiff and that any time above the following estimates is unreasonable: drafting Appellate Term brief (1.5-2 hours); preparation for and oral argument in the Appellate Term (1.5 hours); drafting motion for leave to appeal to the Appellate Division (duplicative of Appellate Term motion) (one hour); drafting Appellate Division brief (12 hours); drafting reply brief (four hours); oral argument in Appellate Division (and preparation, two hours); drafting brief in Court{**59 Misc 3d at 590} of Appeals (eight hours); and oral argument in Court of Appeals (and preparation, two hours). According to Mr. Resciniti, the total reasonable hours for the appeal could [*8]not exceed 32.5-33 hours and any hours in excess of these hours is duplicative or excessive.

The court finds that the testimony of Mr. Resciniti comes much closer to the reasonable hours expended in prosecuting the appeals than the evidence presented by plaintiff’s counsel and the estimates of defendant’s witness will be treated as a concession of the reasonable minimum number of hours that were required to prosecute the appeals. Where defendant presents an expert who renders an opinion regarding the reasonable hours expended, defendant concedes those hours. (Cf. Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975] [“in the absence of either party challenging the verity of the alleged facts, as is true in the instant case, there is, in effect, a concession that no question of fact exists”]; cf. Schifter v Commercial Travelers Mut. Acc. Assn. of Am., 183 Misc 74 [1944], affd 269 App Div 706 [1945]; see also Annotation, Proper Procedure and Course of Action by Trial Court, Where Both Parties Move for Summary Judgment, 36 ALR2d 881.)

Legal Analysis

The court is unable to utilize the lodestar method to determine reasonable attorney’s fees because plaintiff’s counsel’s firm did not keep any contemporaneous billing records and did not provide the court with proof of a “reasonable hourly billing rate,” by showing the “prevailing market rate” or the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation” (Carroll v Weill, 2008 NY Slip Op 32512[U], *8; Matter of Rahmey v Blum, 95 AD2d 294 [2d Dept 1983]). However, the court may accept, at a minimum, the 33 hours conceded by the defendant (cf. Kuehne & Nagel v Baiden) and the statutory rate of $70 for legal services rendered out of court or $80 for legal services rendered in court. (See former 11 NYCRR 65-4.6 [d] [1], [2].)

The court rejects all testimony regarding an hourly rate of plaintiff’s counsel’s attorneys of between $500 to $1,000 per hour because such testimony only pertained to hourly rates charged by plaintiff’s firm having to do with matters other than the type of litigation or appeal ultimately argued in the Court of Appeals. The court accepts plaintiff’s counsel’s respective testimony regarding the experience of its attorneys which included years of practice and areas of expertise.{**59 Misc 3d at 591}

Unlike federal courts which strictly apply only a lodestar analysis (New York State Assn. for Retarded Children, Inc. v Carey, 711 F2d 1136 [2d Cir 1983]), state courts frequently determine reasonable attorney’s fees on a quantum meruit basis in a multitude of contexts under its inherent authority. (See Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471 [1977] [where court refused to accept contractual provision mechanically applying a rate of 15% for attorney’s fees upon default judgment and only accepted such percentage as a limitation of such “reasonable fees” up to such percentage based on a “quantum meruit” basis]; see Matter of Greenfield, 127 AD3d 1189, 1192 [2d Dept 2015] [involving an estate matter, where an appellate court affirmed the trial court’s quantum meruit award of attorney’s fees in the absence of the law firm keeping contemporaneous time records]; see Padilla v Sansivieri, 31 AD3d 64, 67 [2d Dept 2006] [a matter involving a personal injury case where a disbarred attorney is claiming a fee prior to his disbarment, “there is case law expressly recognizing that the calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations”], citing Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 459 [1989].)

As Justice Rivera determined in Nawaz v Boryczka (34 Misc 3d 1234[A], 2012 NY Slip Op 50367[U], *2 [Sup Ct, Kings County 2012]), “quantum meruit” is defined to be “as much as he [or she] deserve[s].” (Black’s Law Dictionary 1119 [5th ed 1979], quantum meruit.) Making that [*9]determination requires an assessment of the value of the services rendered. (See Ruggiero v Gross Plumbing & Heating, 226 AD2d 984, 986 [3d Dept 1996] [where appellate court reversed trial court in making quantum meruit determination on papers because, “the affidavit submitted by the (law) firm in support of its fee request lacked evidence of other significant factors generally considered when determining fee requests under quantum meruit, namely, the total time spent, the hourly rate charged, the amounts customarily charged for similar services in the same locality and the difficulty of the case”].)

The time spent by plaintiff’s counsel in attending the attorney’s fee hearing is not compensable as a “fee on a fee.” (See Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]; Kumble v Windsor Plaza Co., 161 AD2d 259, 261 [1st Dept 1990].){**59 Misc 3d at 592}

Issue: Is there enough evidence in the record to award plaintiff’s counsel’s fees under a theory of quantum meruit?

At the hearing, numerous documents were admitted into evidence but these documents alone are insufficient to make a quantum meruit attorney’s fee award. (See Neals v Cox, 240 AD2d 380, 380-381 [2d Dept 1997] [“(a)ssuming, arguendo, that the case file was admissible in evidence, no evidence was submitted of the hours worked on the case and the respondent’s hourly rate. Accordingly, the respondent failed to prove the value of her services on a quantum meruit basis (see, Glickson v Eli Lilly & Co., 234 AD2d 416; Sparks v Barry’s Plumbing & Heating Corp., 230 AD2d 606; Ruggiero v Gross Plumbing & Heating, 226 AD2d 984)”].) Here, there is no doubt that time was spent in the preparation of the numerous documents that were placed into evidence, but the court would engage in pure speculation regarding establishing the actual time involved in preparing those documents.

Given that legal fees in no-fault cases are determined on an hourly rate or a percentage of the recovery (11 NYCRR 65-4.6 under current subdivision [c] [$70/$80 per hour] with a maximum of $1,400 for in/out of court services or under current subdivision [b] up to 20% of recovery not to exceed $1,360), and that plaintiff’s counsel’s firm practices virtually all no-fault law, some explanation should have been offered as to why no time records were kept.

The court is being asked to use its own experience and expertise (Matter of Rahmey v Blum, 95 AD2d 294, 300 [2d Dept 1983]) to determine the reasonable hours, if any, above the hours conceded by the defendant and to further determine the reasonable hourly rates, if determined, above those specified in the statute (11 NYCRR 65-4.6). The plaintiff’s counsel in its posttrial memorandum of law is asking the court to consider the case of Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co. (179 AD2d 645 [2d Dept 1992]) where the Appellate Court affirmed the trial court’s setting of the attorney hourly rate in a no-fault matter of $175 per hour in 1989 which adjusted by the Bureau of Labor Statistics inflation calculator is equivalent to $354 in 2017.

This court will apply a flat hourly rate of $250 as reasonable for the legal services provided and makes an award of a legal fee only to the following extent:{**59 Misc 3d at 593}

Therefore, based upon the foregoing, plaintiff’s motion for additional attorney’s fees pursuant to 11 NYCRR 65-4.6 is granted and defendant is directed to make payment of $12,325 to plaintiff’s counsel within 30 days of the court’s decision or plaintiff may enter judgment.

Footnotes

Footnote 1:The exception was plaintiff’s claim dated November 17, 2004, in the amount of $139, which was denied based on “results from [an] independent medical exam the claimant attended on [September 21, 2004].” (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 36.)

Footnote 2:Plaintiff commenced this action in September 2005, prior to the adoption of the sixth amendment to 11 NYCRR 65-4.6, and as such, the amendment is not applicable and the subdivision as cited is the text of the regulation prior to the amendment. However, it should be noted that amended subdivision (e) has the same language as found in former subdivision (f).

Footnote 3:Indeed, the acceptance of a certified question by the Court of Appeals is discretionary (see 22 NYCRR 500.27 [a]; see also 22 NYCRR 500.22 [b] [4] [requiring movants to submit, inter alia, “(a) concise statement of the questions presented for review and why the questions presented merit review by this Court, such as that the issues are novel or of public importance, present a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division”]; Liriano v Hobart Corp., 92 NY2d 232, 243 [1998] [the Court of Appeals declined to accept a certified question where “(t)he Second Circuit’s opinion does not indicate that there is an unsettled or open question of New York substantive law”]; Tunick v Safir, 94 NY2d 709, 711-712 [2000] [the Court of Appeals noting that “the certification procedure can provide the requesting court with timely, authoritative answers to open questions of New York law, facilitating the orderly development and fair application of the law and preventing the need for speculation”]).

Footnote 4:In 2005 11 NYCRR 65-4.6 (d) (1) and (2) reflected an hourly rate of $70/$80 depending on in court or out of court work with a cap of $1,400.

Decided on February 23, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-475 K C

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 8, 2016. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate a default judgment entered upon its failure to appear or answer.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]), and a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Papandrea v Acevedo, 54 AD3d 915 [2008]). The affirmation submitted by defendant’s attorney in support of the motion did not provide a “detailed and credible” explanation of the law office failure that had caused the default (see Estrada v Selman, 130 AD3d 562, 562-563 [2015]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, [*2]1023 [2009]; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). Consequently, defendant’s conclusory claim of law office failure did not rise to the level of a reasonable excuse (see Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d at 1023; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 904; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]; Piton v Cribb, 38 AD3d 741, 742 [2007]; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 637 [2006]). In view of the foregoing, it is unnecessary to consider whether defendant demonstrated a meritorious defense to the action (see Levi v Levi, 46 AD3d 519, 520 [2007]). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Piton v Cribb, 38 AD3d at 742).

We note that, at oral argument, defendant=s attorney asserted that plaintiff had improperly served the summons and complaint on defendant at its Long Island office. However, since this argument was not raised in defendant=s brief, we decline to address it on appeal (see Pellescki v City of Rochester, 198 AD2d 762, 763 [1993]; see also McHale v Anthony, 41 AD3d 265, 266-267 [2007]; Crown Asset Mgt., LLC v Ferreri, 48 Misc 3d 132[A], 2015 NY Slip Op 51064[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

Decided on February 22, 2018

Decided on February 16, 2018

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

Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 8, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied and the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant correctly argues on appeal that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Defendant acknowledged that it had received the claim underlying plaintiff’s first cause of action on July 9, 2014 and the claim underlying plaintiff’s second cause of action on August 6, 2014, and established the mailing of independent medical examination (IME) scheduling letters to the assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), which scheduled plaintiff’s assignor’s IME for August 29, 2014. Thus, contrary to defendant’s further argument, defendant did not demonstrate that it was entitled to summary [*2]judgment dismissing plaintiff’s first cause of action because the IME had not been scheduled to be held within 30 calendar days after defendant had received the claim underlying the first cause of action (see 11 NYCRR 65-3.5 [d]).

With respect to the second cause of action, however, the IME was scheduled to be timely held. In addition to establishing that the IME scheduling letters had been mailed to the assignor, defendant established that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely denied the claim underlying the second cause of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722), and as plaintiff failed to raise a triable issue of fact in opposition, the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action should have been granted.

Defendant’s remaining contentions lack merit.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied and the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action is granted.

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

Decided on February 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1299 K C

Abrams, Cohen & Associates, P.C. (Frank Piccininni), for appellant. Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.

Plaintiff commenced this action on February 1, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer in or about September 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on March 14, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, [*2]finding that defendant had failed to raise the defense of res judicata in its answer.

For the reasons stated in Active Chiropractic, P.C., as Assignee of Mary Parrish v Allstate Ins. (— Misc 3d &mdash, 2018 NY Slip Op — [appeal No. 2016-1297 K C], decided herewith), the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.

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