Decided on December 18, 2017

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered July 9, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Eddie J. McShan, J.), entered July 9, 2013, reversed, with $10 costs, defendant’s motion denied and complaint reinstated.

Defendant-insurer failed to establish its entitlement to summary judgment dismissing the underlying first-party no-fault action based upon plaintiff’s alleged failure to provide defendant with proof of claim. The vague and conclusory assertions by defendant’s claim specialist that defendant had “no record of receiving” the underlying claim, which, it is alleged, was improperly mailed to a certain Florida post office box where defendant “never accepted mail,” were insufficient to make a prima facie showing that the claim was not properly and timely submitted (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; Easy Care Acupuncture PC v MVAIC, 45 Misc 3d 131[A], 2014 NY Slip Op 51645[U] [App Term, 1st Dept 2014]). Conspicuously absent from the moving affidavit was any description of defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), any indication whether the specified Florida post office box actually belonged to defendant, or even the correct address where the claim should have been sent. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Civil Court of the City of New York, Kings County, December 18, 2017

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn, for plaintiff.

Peter C. Merani, P.C., New York City, for defendant.

Plaintiff’s motion to reargue its motion for summary judgment is decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff submitted a claim form and invoice to defendant for services rendered to Cosby Reavis on October 8, 2013. According to plaintiff’s claim, these services related to various codes promulgated under the Official New York Workers’ Compensation Medical Fee Schedule (the fee schedule), including code 20999, which is a “By Report” code. Defendant denied plaintiff’s claim in part because plaintiff did not bill its services in accordance with the applicable fee schedule. Plaintiff filed the instant action and both parties moved for summary judgment.

With specific regard to plaintiff’s motion to reargue, this court denied plaintiff’s motion for summary judgment with respect to plaintiff’s claim for payment under code 20999 (52 Misc 3d 491 [2016]). The court reasoned that, because code 20999 is a “By Report” code, plaintiff was required to submit certain information about the services provided in order to establish a proper billing rate as part of its prima facie case. Plaintiff did not provide this information, and consequently, plaintiff did not meet its initial burden of proof on summary judgment.

Plaintiff now moves to renew and reargue its motion for summary judgment. A motion for leave to renew is addressed to the court’s sound discretion and can be granted only if it is shown that there are new facts, although in existence at the time the original motion was made, that were unknown to the movant and therefore were not brought to the court’s attention (Semenov v Semenov, 98 AD3d 962, 963 [2d Dept 2012]). To the extent the facts are new, plaintiff must offer a reasonable justification for its failure to present such facts on the prior motion (id.).

A motion to reargue must show that there was a point of law or fact that was overlooked in the prior motion, and cannot be based on arguments different from those originally stated in the prior motion (NYCTL 1998-1 Trust v Rodriguez, 154 AD3d 865, 865 [2d Dept 2017]; Rodriguez v Gutierrez, 138 AD3d 964, 966-967 [2d Dept 2016]).

Plaintiff argues that “academic literature” dictates that dry needling is commonly billed under code 20999, and attaches this “literature” to its motion to renew and reargue. As an{**60 Misc 3d at 683} initial matter, plaintiff does not explain why it did not offer this “literature” in support of its underlying motion for summary judgment, and so it cannot be considered for the motion to renew (Semenov, 98 AD3d at 963). Likewise, the court cannot consider this “literature” as part of the motion to reargue, as it is a new theory not advanced in the underlying motion (NYCTL 1998-1, 154 AD3d at 865; Rodriguez, 138 AD3d at 966-967).

Even if this court were to consider this “literature,” plaintiff provides no reason why the court should give it any weight or deference. The referenced document is titled “Local Coverage Determination (LCD): Pain Management (L33622).” Plaintiff offers no explanation about who authored the document, who uses this document, how it is used, or the weight, if any, the medical community gives the document. All this said, the document makes a passing statement that dry needling should be billed under code 20999. Even assuming this were true, it would not change the “By Report” designation in the fee schedule, which requires a medical provider to submit a report with its bill to establish the proper billing rate.

Additionally, plaintiff argues that this court incorrectly interpreted plaintiff’s prima facie burden as established by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498, 507 [2015]). Plaintiff argues that Viviane Etienne holds that plaintiff’s prima facie burden is limited only to proving timely submission of a claim form, and that payment is overdue. In its underlying decision in this action, this court explained that, in order to determine the appropriate monetary value of services designated “By Report,” the Official New York Workers’ Compensation Medical Fee Schedule directs the medical provider to provide certain information to justify its billing. These documents and information (i.e., the “report”) are part of the “completed claim form” (see Viviane Etienne, 25 NY3d at 507), and thus part of plaintiff’s prima facie burden, so that defendant has sufficient notice of the services being billed in order to make a proper decision on the claim. Plaintiff does not argue that the court [*3]overlooked or misunderstood a point of law. Instead, plaintiff simply disagrees with the court’s reasoning.

After plaintiff filed the instant motion, the Appellate Term issued its decision in Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). {**60 Misc 3d at 684}In Bronx Acupuncture, the plaintiff medical provider sought payment for services submitted under a “By Report” code. The defendant insurance company denied the claim because the plaintiff did not provide certain documentation. The appellate court treated the documentation as a request for additional documentation, and held that defendant’s denial was not proper because it did not request the documentation in accordance with 11 NYCRR 65-3.5 (b) (Bronx Acupuncture, 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U], *1).

That said, the specific legal issue confronted in this action is whether the “report” in a “By Report” claim is an additional form of documentation or verification, as is generally the case when a carrier requests copies of medical records, or subsequent letters of medical necessity, or rather, in this unique circumstance, whether the “report” in a claim billed “By Report” is actually an integral part of the bill or claim form, and so whether it must be included in order to constitute a “completed claim form.” If it is the latter, then it would be an element of plaintiff’s prima facie burden to produce such a “completed claim form,” under Viviane Etienne. It would not constitute a separate, new element of the prima facie burden.

I acknowledge, support, and endeavor to follow the principles laid out in Viviane Etienne. Further, I am mindful of the Appellate Term’s decision in Bronx Acupuncture and its potential implication in this case. That said, I find that it is definitional to the submission of any claim that the claim form must be complete, and that to satisfy the prima facie burden laid out in Viviane Etienne, completed claim forms must provide the necessary data to identify both the value of the claim and the basis for calculating that value. It is the satisfaction of this prima facie threshold that shifts the burden to the insurer to pay or deny the claim, or to demand further verification, within the times specified in the regulations. Alone in the applicable fee schedule, the “By Report” code provides no inherent value. The code is a wild card which invites the provider to name the value of the claim and to explain, in narrative form, the basis of calculation for that value. Without the report, the “By Report” code is not reduced to a defined service with a calculated value, and the insurer has no basis to either pay or deny the associated claim. For these reasons, I find that the report is a necessary component of the bill for a “By Report” claim. Its absence renders the claim form incomplete, fails to satisfy the prima facie requirements laid out in Viviane Etienne{**60 Misc 3d at 685}, and so fails to trigger the insurer’s obligation to timely pay or deny the claim.

For the foregoing reasons, plaintiff’s motion to renew and reargue is denied.

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-231 K C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 2, 2014. The order granted plaintiff’s motion to enter a default judgment and denied defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff’s motion to enter a default judgment and denied defendant’s cross motion to open its default and to compel plaintiff to accept a late answer.

It is well settled that in order to open a default in answering, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Here, defendant established a reasonable excuse for its failure to serve an answer (see Vardaros v Zapas, 105 AD3d 1037 [2013]) and made a prima facie showing of a viable defense based on a lack of medical necessity.

Accordingly, the order is reversed, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2749 Q C

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 7, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim form had been timely and proper and that the sole issue for trial was whether plaintiff’s assignor had failed to appear for the scheduled IMEs.

In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the [*2]complaint is granted.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2515 Q C

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered September 9, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the second through seventh causes of action.

ORDERED that 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, plaintiff appeals from so much an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second through seventh causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.

For the reasons stated in Greenway Med. Supply Corp., as Assignee of Tellechea Maria v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2253 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2389 Q C

Law Offices of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 20, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $878.67 on its first cause of action.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted for a new trial on the first cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held on the first cause of action, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). Prior to defendant calling any witnesses, the Civil Court indicated that, as defendant would not be able to admit into evidence the peer review report upon which the denial of claim had been based “for the truth of what is in there,” defendant would not be able to meet its “burden.”^[FN1] The court disagreed with [*2]defendant’s position that a “substitute doctor” could testify without the peer review report being admitted into evidence and directed a verdict in favor of plaintiff. A judgment was subsequently entered awarding plaintiff the principal sum of $878.67 on its first cause of action.

Contrary to the apparent holding of the Civil Court, an insurer cannot use a peer review report at trial for its “truth,” i.e., to prove the insurer’s defense of lack of medical necessity (see Alev Med. Supply, Inc. v Government Empls. Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Indeed, the “admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony” (A-Quality Med. Supply, 39 Misc 3d at 26). While an insurer’s expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), “it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report” (Promed Orthocare Supply, Inc. v Geico Ins. Co., ____ Misc 3d _____, 2017 NY Slip Op 51264[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, a new trial is required on the first cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the first cause of action.

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

Footnotes

Footnote 1: In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).