[*1]

Active Care Med. Supply Corp. v Amica Mut. Ins. Co.

2018 NY Slip Op 50500(U) [59 Misc 3d 135(A)]

Decided on April 6, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-955 K C

Active Care Medical Supply Corp., as Assignee of Tyrone, David, Respondent,

against

 Amica Mutual Ins. Co., Appellant.

Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 August 12, 2015, deemed from a judgment of that court entered January 13, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 12, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,819.12.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 12, 2015 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

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’s action is barred by the doctrine of res judicata, and plaintiff cross-moved for summary judgment. By order entered August 12, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. Defendant’s appeal from the order entered August 12, 2015 is deemed to be from the judgment entered pursuant thereto on January 13, 2016 (see CPLR 5512 [a]).

While defendant failed to include res judicata as an affirmative defense in its answer or [*2]move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer, defendant moved for summary judgment dismissing the complaint on the ground of res judicata based upon orders in a declaratory judgment action in the Supreme Court, Kings County. We note that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]). Plaintiff’s papers in the Civil Court failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; J.K.M. Med. Care, P.C., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]). However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action (see J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 54 Misc 3d 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint based on res judicata.

With respect to plaintiff’s cross motion for summary judgment, although the affidavit of plaintiff’s employee, who stated that he had personally mailed the claim form to defendant, was sufficient to give rise to a presumption that the claim had been received by defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant rebutted the presumption of receipt with an affidavit by its claims representative, who described defendant’s procedures for receiving mail and stated that defendant had not received the bill at issue. Consequently, as defendant raised a triable issue of fact in opposition to plaintiff’s cross motion, the Civil Court should have denied plaintiff’s cross motion.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018

Amos Weinberg, Esq., for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied plaintiff’s motion to vacate an oral order of that court issued July 31, 2013 dismissing the action based on plaintiff’s failure to proceed at trial.

ORDERED that the order entered April 3, 2014 is affirmed, without costs.

This action by a provider to recover assigned first-party no-fault benefits was commenced in 2002. In 2013, the case was scheduled for trial for the first time. On July 31, 2013, plaintiff’s counsel appeared only to seek an adjournment. Plaintiff concedes that it had no witness and was not ready to proceed. The court denied plaintiff’s request for an adjournment and dismissed the action pursuant to Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (b) (2). About seven months later, plaintiff moved to vacate that dismissal, which motion was denied by order entered April 3, 2014, from which plaintiff appeals.

Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal “it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action” (V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc [*2]3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain that burden here. Plaintiff has not demonstrated that the Civil Court’s denial of plaintiff’s request for an adjournment was an abuse of discretion (see Nieves v Tomonska, 306 AD2d 332 [2003]). Plaintiff did not show why it could not have been prepared to proceed on the day set for the trial of the then 11-year-old case, or why it had not attempted to obtain an adjournment in advance, or any other extenuating circumstances. Plaintiff also did not explain why it had waited seven months to move to vacate its default. In any event, plaintiff has not demonstrated that it has a meritorious cause of action.

Accordingly, the order entered April 3, 2014 is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018

Maidstone Insurance Co., Petitioner, against Medical Records Retrieval, Inc., D/B/A Kamara Medical Supplies, as Assignee of Sandra Pereira, Respondent.

27526/2017E

Counsel for Petitioner: Jason Tenenbaum, Esq.

Mary Ann Brigantti, J.

The following papers numbered 1 to _2_ Read on this motion, VACATE ARBITRATION AWARD Noticed on September 14, 2017 and duly submitted on the Motion Calendar of September 14, 2017:

PAPERS NUMBERED

Notice of Motion- Exhibits and Affidavits Annexed 1,2

Upon the foregoing papers, the petitioner Maidstone Insurance Company (“Petitioner”) seeks an order (1) pursuant to CPLR 7511, vacating the award of the master arbitrator that affirmed an award of the lower arbitrator finding that the respondent Medical Records Retrieval Inc., d/b/a Kamara Medical Supplies, a/a/o Sandra Pereira (“Respondent”) was entitled to compensation for services performed (a) from March 12, 2016 through April 22, 2016, in the sum of $3,750.00; (b) from March 12, 2016 until April 1, 2016, in the sum of $1,323.00; and (c) from March 12, 2016 in the sum of $19.50 and $34.22, and entering judgment in favor of Petitioner vacating the award, and remanding the matter to a different arbitrator to compute the amount due and owing under the Medicaid fee schedule, which would be 1/6 times the wholesale price of the CPM and CTU, divided by 30, times the amount of days the items were rented, or $1031.27; (2) such other and further relief as this Court may deem just, proper, and equitable, and (3) costs and disbursements as taxed by the clerk, including Petitioner’s $325 master arbitration fee. The petition is unopposed.

In cases of compulsory arbitration, judicial review of a master arbitrator’s award is restricted to the grounds set forth in Article 75 of the CPLR (see Matter of Petrofsky, 54 NY2d [*2]207, 210-11 [1981]). The “governing consideration is ‘whether the decision was rational or had a plausible basis'” (Curley v. State Farm Ins. Co., 269 AD2d 240, 242 [1st Dept. 2000], citing Petrofsky at 211). “Vacatur of an arbitrator’s award is statutorily limited to occasions involving fraud, corruption or bias… or occasions where the arbitrator exceeded his or her power, or so imperfectly executed it so that a final and definite award was not made” (id., citing CPLR 7511[b]; Lopez 375 v. New York City Health and Hospitals Corp., 257 AD2d 530 [1st Dept. 1999]). The party seeking vacatur must prove that the award was irrational, in violation of public policy, or in excess of the arbitrator’s powers (id., citing In re Travelers Insurance Company v. Job, 239 AD2d 289 [1st Dept. 1997]). Furthermore, “‘an arbitrator’s award will not be set side even though the arbitrator misconstrues or disregards [the proof] or misapplies substantive rules of law, unless it violates strong public policy or is totally irrational'” (id., quoting Sims v. Siegelson, 246 AD2d 374, 376 [1st Dept. 1998]). While an arbitration award may be deemed arbitrary and capricious where it does not follow “clear precedent,” (Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432, [1st Dept. 2000]), vacatur should not be granted if the decision had a reasonable hypothesis and the controlling issue is “unsettled and subject to conflicting court decisions” (see Motor Vehicle Accident Indemnification Corp. v. Aetna Casualty and Surety Co., 89 NY2d 214, 224 [1996]).

In this matter, although the petition is unopposed, it must be denied because Petitioner has failed to carry its initial burden of demonstrating that vacatur of the arbitration awards is warranted. Petitioner received billing for a CPM knee machine (Code E0935) in the sum of $3,570.00, representing 42 days of usage (March 12, 2016 – April 22, 2016), at the billed rate of $85.00 per day, and billing for a water circulating pump (Code E0236) in the sum of $1,323.00, representing 21 days of usage (March 12, 2016 – April 1, 2016), billed at a rate of $125.00 per day. Petitioner was billed for other services as well, but it only disputes the billing rate for the aforementioned two items. Petitioner asserted that this billing was in excess of the applicable fee schedule. At the arbitration hearing, and in the instant petition, Petitioner argued that the applicable fee schedule for the above-referenced durable medical equipment (DME) is limited to 1/6th of the acquisition cost of the equipment on a monthly basis. In support of this position, Petitioner relied primarily on what it characterizes are “opinion letters” from the New York State Department of Health (“DOH”) and the Workers’ Compensation Board (“WCB”), as well as a 2016 Queens County Supreme Court decision. Petitioner also submits “frequently asked questions” the were published on the WCB website which states that the reimbursement rate of CPM (E0935) rental shall not exceed the amount specified in the Durable Medical Equipment Manual – Policy Guidelines – see section on “Rental of Durable Medical Equipment.” Those policy guidelines state – “for DME items that have been assigned a Maximum Reimbursement Amount (MRA), the rental fee is 10%^[FN1] of the listed MRA. For DME items that do not have a MRA, the rental fee is calculated at 10% of the equipment provider’s acquisition cost.” Petitioner argued that its documentation established that where, as here, the DME items have not been assigned a Maximum Reimbursement Amount (“MRA”), the rental fee is calculated at 1/6th of the equipment provider’s acquisition cost.

The lower arbitrator considered these arguments, and specifically found that the DME at issue – the CPM and the CTU – were not listed in the Medicaid DME fee schedule, and no specific amount had been set by the DOH for the monthly rental of those items. While the arbitrator understood the calculations made by Petitioners’ professional coder, he noted that coder’s methodology was flawed because the DOH had indicated in a letter dated June 8, 2016, that according to 12 NYCRR section 442.2(g), the Medicaid Policy Guidelines and Medical Policy Manual are not to be included in the Medicaid DME fee schedule except to the extent that such documents contain the Medicaid DME fee schedule. The lower arbitrator thus rejected Petitioner’s fee schedule defense, and found that the billing was proper in accordance with 12 NYCRR 442.2. The master arbitrator affirmed these findings, holding that the arbitration interpretation of the evidence and applicable law pertaining to this fee schedule dispute was not arbitrary, capricious, or contrary to law.

After review of the instant petition, this Court finds that the arbitration awards were supported by a rational and plausible basis and were not contrary to clear precedent. 12 NYCRR 442.2(b) provides that “[t]he maximum permissible monthly charge for such equipment, supplies and services provided on a rental basis shall not exceed the lower of the monthly rental charge to the general public or the price determined by the New York State Department of Health area office. The total accumulated monthly rental charges shall not exceed the fee amount allowed under the Medicaid fee schedule” (emphasis added). Petitioner’s submissions fail to establish that the New York DOH area office has set or determined a price for the DME at issue. The June 8, 2016 letter from the DOH senior attorney established that the earlier July 2014 letter was clearly not an instance where DOH made such a determination. Furthermore, the correspondence from the WCB employee did not constitute an official “interpretation of a regulation” or an “informal opinion” of the agency’s regulations (compare Matter of Elcor Health Servs. v. Novello, 100 NY2d 273, 280 [2003]; A.M. Medical Services, P.C. v. Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2nd Dept. 2012]). Contrary to Petitioners’ contentions, the arbitrator also had a rational basis for determining that the Medicaid policy guidelines are inapplicable to these facts (see 12 NYCRR 442.2[g]). Even if the Medicaid guidelines are applicable here, as noted in the WCB “FAQ,” they only state that the “1/6th” (10% as of July 1, 2016) calculation of rental fee applies where the DME items “do not have a MRA.” It is rational to conclude that this calculation only applies to DME items that are listed in the fee schedule but are not assigned a MRA value. Where, as here, the DME items are not listed at all on the Medicaid fee schedule, the Department of Health has not determined a monthly rental charge. Under these circumstances, the applicable monthly rental charge will be the rate charged to the general public (12 NYCRR §442.2[b]). Petitioner argues that its contentions further the cost containment policies behind the no-fault system, however, engaging in such an analysis goes beyond the narrow issue that is before this Court (see Curley v. State Farm Ins. Co., 269 AD2d 240, 242).

Accordingly, it is hereby

ORDERED, that the petition is denied, and the Master Arbitration Award is confirmed (CPLR 7511[e]).

This constitutes the Decision and Order of this Court.

Dated: April 4, 2018
Hon. Mary Ann Brigantti, J.S.C.

Footnotes

Footnote 1:According to Petitioners’ professional coder, the Medicaid Policy Guidelines changed the reimbursement formula from 1/6th to 10% of the acquisition cost on July 1, 2016.

Matter of Allstate Ins. Co. v Travelers Cos., Inc.

2018 NY Slip Op 02163 [159 AD3d 982]

March 28, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 2, 2018

[*1]

In the Matter of Allstate Insurance Company, Appellant, v Travelers Companies, Inc., Respondent.

Sweetbaum & Sweetbaum, Lake Success, NY (Marshall D. Sweetbaum and John S. McDonnell of counsel), for appellant.

Farber Brocks & Zane LLP, Garden City, NY (Tracy L. Frankel and William R. Brocks, Jr., of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 9, 2015, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 9, 2015, which denied the petition and granted the application of Travelers Companies, Inc., to confirm the award, and (2) a judgment of the same court entered March 24, 2016, which, upon the order, is in favor of Travelers Companies, Inc., and against the petitioner in the principal sum of $25,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to Travelers Companies, Inc.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

An individual insured by Allstate Insurance Company (hereinafter Allstate) and an individual insured by Travelers Companies, Inc. (hereinafter Travelers), were involved in a motor vehicle accident. In connection with that accident, Travelers paid its insured $75,000, representing coverage for basic economic loss and optional basic economic loss. Pursuant to Insurance Law § 5105 (a), Allstate reimbursed Travelers in the amount of $50,000 for the payment made to Travelers’ insured. Travelers then sought, through arbitration, to recover from Allstate the remainder of its payment to the insured. The matter was submitted to an arbitration panel. The arbitrators determined that Travelers was entitled to recoup the entire $75,000 payment to its insured and awarded Travelers $25,000.

Allstate filed a petition in the Supreme Court to vacate the arbitration award. [*2]Travelers opposed the petition, and requested that the award be confirmed. In an order dated December 9, 2015, the Supreme Court denied the petition and confirmed the award. The court then issued a judgment in favor of Travelers in the principal sum of $25,000. Allstate appeals.

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980 [2015]; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933 [2014]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).

Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102 [a], [b]; 11 NYCRR 65-1.1, 65-1.2).

Travelers’ remaining contentions either are without merit or need not be reached in light of our determination. Austin, J.P., Roman, Sgroi and Brathwaite Nelson, JJ., concur.

[*1]

Laga v Allstate Ins. Co.

2018 NY Slip Op 50416(U) [59 Misc 3d 129(A)]

Decided on March 23, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2015-1117 K C

Adelaida M. Laga, P.T., as Assignee of Mitchell, Rashida, Appellant,

against

Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Karina Barska of counsel), for appellant. Peter C. Merani, P.C. (Josh Youngman, 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.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. By order entered January 7, 2015, the Civil Court granted defendant’s motion.

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.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 23, 2018

Pro-Align Chiropractic, P.C., ASSIGNEE OF CHARLES ROBINSON, Plaintiff(s), against State Farm Mutual Automobile Ins. Company, Defendant(s).

702062/16

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

Counsel for Defendant: Rossillo & Licata, PC

Fidel E. Gomez, J.

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]).

[*1]

Acupuncture Now, P.C. v Hereford Ins. Co.

2018 NY Slip Op 50316(U) [58 Misc 3d 161(A)]

Decided on March 9, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-998 Q C

Acupuncture Now, P.C., as Assignee of Rhymer, Corea, Appellant,

against

Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Melissa Brooks, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 the insurance policy covering the vehicle allegedly involved in a June 10, 2011 motor vehicle accident had been cancelled prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.

The Civil Court held that defendant had demonstrated, as a matter of law, that the vehicle involved in the accident was a “for hire” vehicle and that, prior to the accident, the policy insuring the vehicle had been properly and validly cancelled in compliance with Vehicle and Traffic Law § 370 and 15 NYCRR § 34.11 (e). While the cancellation of the policy is governed by Vehicle and Traffic Law § 370, which requires the insurer to file a certificate of cancellation with the Commissioner of Motor Vehicles, the record reflects that defendant also sent its own cancellation notice in addition to complying with the statute. Plaintiff’s sole contention on appeal is that the sending of this additional notice “rendered the purported cancellation ineffective” (Travelers Prop. Cas. Corp. v Eagle Ins. Co., 273 AD2d 65, 66 [2000]). However, contrary to plaintiff’s argument, the May 10, 2011 notice at issue, which defendant sent informing the [*2]policyholder that it intended to cancel the policy effective June 6, 2011, did not render the cancellation of the policy ineffective (see American Tr. Ins. Co. v Hinds, 14 AD3d 378 [2005]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 09, 2018

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 09, 2018