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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are 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 denying defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit from the chiropractor who was to perform the IMEs, which affidavit was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first through fourth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s fifth through ninth causes of action, the affidavit of defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the fifth through ninth causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second, and fifth through eighth causes of action are 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 denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit from the chiropractor who was to perform the IMEs, which affidavit was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first, second, fifth, sixth, seventh and eighth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s third and fourth causes of action, the affidavit by defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the third and fourth causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second, and fifth through eighth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 13, 2012. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).

A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claim after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim form was untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Thus, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004] D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff’s action is premature. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint

ORDERED that the judgment is reversed, with $30 costs, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s motion for summary judgment was based upon plaintiff’s failure to appear for scheduled examinations under oath (EUOs). However, defendant failed to proffer evidence in admissible form establishing when it had received plaintiff’s claim forms (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant did not establish that it had tolled the 30-day period within which defendant was required to pay or deny the claims so that it may be determined, as a matter of law, that its NF-10 denial of claim form had been timely mailed. As defendant has not demonstrated that it is not precluded from raising its defense that plaintiff failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009] cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), its motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited, pursuant to stipulations, to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports. At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review reports into evidence lacks merit (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d, 11th & 13th Jud Dists 2013] A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

[*1]

District Court of Nassau County, First District, March 13, 2014

APPEARANCES OF COUNSEL

Baker Sanders, L.L.C., Garden City, for plaintiff.

Printz & Goldstein, Woodbury, for defendant.

Plaintiff, All-In-One Medical Care, P.C., commenced this no-fault action against defendant, Government Employees Insurance Company (GEICO), following GEICO’s denial of plaintiff’s claims for no-fault benefits for physical therapy services provided in January and February 2011. Plaintiff’s assignor, Santo Fernandez, was injured in an accident in May 2010. GEICO denied the claims based upon the results of independent medical examinations (IMEs) conducted in October 2010 by three different doctors (Drs. Emmanuel, Sesto, and Yiu). GEICO defends this case at trial solely upon the IME and live testimony of the first doctor, Dr. Jacquelin Emmanuel.

Pursuant to the parties’ stipulation, the trial of plaintiff’s claim was limited to the defense of lack of medical necessity. Dr. Emmanuel was defendant’s only witness. Plaintiff presented no witnesses in rebuttal. Each party submitted medical records for the court’s consideration. Their respective submissions were introduced into evidence on consent and without objection.

According to Dr. Emmanuel’s testimony, he examined Mr. Fernandez twice, first on September 13, 2010, and again on October 25, 2010. The first exam was conducted shortly after Mr. Fernandez had undergone arthroscopic shoulder surgery. Dr. Emmanuel concluded, at that time, that Mr. Fernandez’s spinal sprains/strains had “resolved,” but his right shoulder injuries were still “healing.” After noting Mr. Fernandez’s complaints of tenderness in his right shoulder, Dr. Emmanuel found significant limitations in the right shoulder’s range of motion. Dr. Emmanuel accordingly recommended that Mr. Fernandez should continue to receive physical therapy for his right shoulder, three times a week, for the following four weeks.

Dr. Emmanuel reexamined Mr. Fernandez on October 25, 2010. Mr. Fernandez’s complaints at that time included “radiating neck pain and pain in his low back and right shoulder.” However, upon examination, Mr. Fernandez displayed “no acute distress.” Dr. Emmanuel found no evidence of tenderness or spasm upon palpation of the cervical or lumbar spinal musculature. Range of motion was normal or near normal. The right shoulder arthroscopic entry portals had healed. Dr. Emmanuel found “no impingement signs” in the right shoulder.

Based upon the latter examination findings, Dr. Emmanuel concluded that “no further physical therapy or massage is medically {**43 Misc 3d at 729}necessary.” His report further explained: “Although there were findings of slightly decreased ranges of motion in the cervical spine and right shoulder regions, this is subjective rather than objective. There is no evidence of spasms or instability and all orthopedic tests are negative.”

Dr. Emmanuel’s trial testimony echoed his IME findings. He explained in a clear, consistent, and credible manner why he had concluded that Mr. Fernandez required no further treatments. Notwithstanding the existence of continued subjective complaints, Dr. Emmanuel’s objective examination of Mr. Fernandez found only mild range of motion limitations. Absent objective evidence of tenderness or spasm, he saw no need for continued physical therapy.

[1]; Under current Appellate Term precedent, such trial evidence, if credited, is sufficient to make out a lack of medical necessity defense to post-IME services, and shift the burden to plaintiff of demonstrating the medical necessity of post-IME treatments. (See Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U]; [App Term, 2d Dept, 9th & 10th Jud Dists 2013];.) This court, as factfinder at trial, concludes that Dr. Emmanuel had a sound factual basis and medical rationale for his opinion that no further treatment was necessary. Accordingly, unless plaintiff satisfied its burden of proving to the contrary, defendant is entitled to judgment dismissing plaintiff’s no-fault claim.

In the face of such showing by defendant, plaintiff attempted to meet its burden through submission of post-IME medical records. “Follow-up progress notes” from Dr. Jean Claude Demetrius document monthly post-IME evaluations of Santo Fernandez that were performed between November 2010 and February 2011. In his January 11, 2011 report, for example, Dr. Demetrius notes that the patient’s pain course “has been moderately improved with current physical therapy and acupuncture” but “still has significant pain in neck and lower back with radiating pain and paresthesia to the both upper and lower extremities.” In addition, Mr. Fernandez continued to complain about shoulder pain. Upon examination of the patient’s shoulders, Dr. Demetrius found mild tenderness in the right shoulder, severe tenderness in the left shoulder, and decreased range of motion in the upper extremities.

Based upon these findings and other documented examination results, Dr. Demetrius’s “diagnostic impression” included cervical and lumbar strain/sprain, cervical and lumbar discogenic{**43 Misc 3d at 730} disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c];ontinued physical therapy” and a follow-up reevaluation in four to six weeks. Similar findings and recommendations were made in his earlier and later reports.

Submission of these records, as part of a stipulated evidence package, raises an interesting evidentiary question. Can the plaintiff meet its own burden to prove medical necessity solely through submission of post-IME medical records? Or must it submit live witness testimony from a treating doctor, or other medical expert, establishing by expert proof that the subject services were appropriate and medically necessary?

The decision in Amato did not reach the issue. Unlike this case, the plaintiff in Amato submitted “no evidence.” (See 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U], *2.) Since the plaintiff in Amato “proffered no evidence” respecting the patient’s condition following the date of the IME, any finding that the patient’s condition may have “worsened after the IME” would be “speculative, at best.” (Id.) Consequently, the Appellate Term directed entry of judgment in favor of defendant, dismissing the complaint, due to the complete absence of rebuttal proof from the plaintiff respecting the necessity of the post-IME treatments.

Here, in contrast, plaintiff did not rest upon the strength of its cross-examination of Dr. Emmanuel. Instead, it submitted the treating doctor’s records of the post-IME examinations. Can this court accept the findings and conclusions of the treating doctor without hearing his testimony in court at trial? In the absence of specific guidance from the Appellate Term, this court necessarily must look to decisions made by other appellate courts. Since this court sits under the Second Department’s umbrella, it looks principally to that Court’s decisions in analogous circumstances and related contexts. The rulings made in such cases are far from uniform.

In one leading case involving a claim of medical malpractice, the Appellate Division, Second Department, addressed at length the admissibility of physicians’ office records under the “business records” exception to the hearsay rule. (Wilson v Bodian, 130 AD2d 221, 228-234 [2d Dept 1987], citing CPLR 4518.) Plaintiff’s evidence in that case included the office records of a treating doctor, Dr. Hyman. Although plaintiff’s counsel claimed to have subpoenaed the doctor, “[n];either the process server nor any other witness nor any affidavit of service was produced to{**43 Misc 3d at 731} verify the unavailability of Dr. Hyman.” (130 AD2d at 224.) When the records were offered into evidence, the defendant objected on hearsay grounds. As counsel noted in his objection, “I cannot cross-examine those records.” (Id. at 225.)

On defendant’s appeal from a jury verdict in plaintiff’s favor, defendant renewed his objection to the admission of the records. The Appellate Division rejected the argument. After surveying “inconsistent” rulings made by other courts, the Second Department “reaffirm[ed]; that a physician’s office records, supported by the statutory foundations set forth in CPLR 4518 (a), are admissible in evidence as business records.” (130 AD2d at 230-231.) “Similar to hospital records, it is the business and duty of a physician to diagnose and treat a patient’s illness. Therefore, entries in the office records germane to diagnosis and treatment are admissible, including medical opinions and conclusions.” (Id. at 231 [emphasis added];.)

Since the decision in Wilson v Bodian, the Second Department has not consistently followed the last part of its ruling. In some cases, it continues to hold that a doctor’s office records, including “the medical opinions contained therein,” are properly admissible as evidence if “germane to the diagnosis and treatment” of the doctor’s patient. (See Murray v Weisenfeld, 37 AD3d 432, 433 [2d Dept 2007];.)

Other decisions take a very different approach. In Wagman v Bradshaw (292 AD2d 84 [2d Dept 2002]), for example, the Court drew a distinction between admissible medical records containing the results of specified medical tests (e.g., MRIs), and subjective opinion evidence interpreting the MRI test results in “a written report prepared by a nontestifying healthcare professional.” (292 AD2d at 88.) According to the Court’s decision in Wagman, such a report would be deemed “patently inadmissible hearsay as the declarant, the preparer of the report, is unavailable for cross-examination.” (Id.)

Similarly, in Daniels v Simon (99 AD3d 658 [2d Dept 2012]), the Second Department held that the Supreme Court “correctly declined to admit into evidence various medical reports prepared by physicians who examined Deborah Daniels on behalf of her insurance carrier. The reports of these nontestifying physicians were inadmissible because the physicians were unavailable for cross-examination.” (99 AD3d at 660, citing inter alia Wagman v Bradshaw.) Without mentioning Wilson v Bodian, the Court in Daniels v Simon concluded that a medical report “is not admissible as a business record where, as here, it contains the physician’s opinion or expert proof.” (Id.)

{**43 Misc 3d at 732}Plaintiff’s proof of medical necessity in this case rests entirely upon post-IME reports, containing the treating doctor’s findings and opinions respecting the need for continued physical therapy treatments. Consequently, under the principles announced in Wagman v Bradshaw and its progeny, defendant could have objected to the submission of the reports prepared by Dr. Demetrius unless he could be cross-examined about his findings and opinions. Had defendant made such an objection in advance of trial, the parties could have obtained an in limine ruling from the court, and, depending upon the court’s ruling, they could have adjusted their presentations accordingly.

[2]; But defendant voiced no such objection. To the contrary, the post-IME records were part of a stipulated package of medical records that both sides deemed relevant to the issue at hand. In view of that stipulation, this court need not weigh in, at this time, on whether Wilson or Wagman should be followed in no-fault matters where the plaintiff offers medical record evidence of post-IME medical treatments which includes an uncalled treating doctor’s opinions. To the extent that the subject reports contain examination findings respecting Mr. Fernandez’s condition subsequent to the date of the last IME, the reports are clearly admissible as records “germane to diagnosis and treatment.” (Wilson v Bodian at 231.) To the extent the reports can be read as expressing an opinion regarding the patient’s need for additional physical therapy treatments, in the absence of objection that opinion may be weighed, along with the other evidence, in determining whether plaintiff met its burden of establishing the medical necessity of the post-IME treatments.

However, that conclusion does not end the court’s analysis. Although plaintiff’s proof of post-IME examinations by Dr. Demetrius might be enough to make out a prima facie case for medical necessity under Amato, submission of those records, without supporting testimony from Dr. Demetrius, raises a second issue, namely, whether the court should draw a negative inference from plaintiff’s decision to not call Dr. Demetrius as a witness.

Again, the court looks principally to Second Department rulings in related contexts. Although the leading cases do not involve no-fault matters, general principles announced in such cases have equal applicability to the case at bar.

Both in cases heard by the court, and in cases heard by a jury, an adverse inference may be drawn if a party fails to “call a witness who would normally be expected to support that party’s version of events.” (See Matter of Adam K., 110 AD3d 168, 176-{**43 Misc 3d at 733}178 [2d Dept 2013];.) The rationale for the rule rests on “the commonsense notion” that a party will normally call a witness who would be expected to provide testimony in the party’s favor. (See Matter of Adam K., 110 AD3d at 181.)

In cases where a party fails to call a treating doctor, an adverse inference may be drawn if the doctor is under a party’s control, and can provide relevant, noncumulative testimony regarding a patient’s condition. (See Matter of Adam K., 110 AD3d at 180, citing Zito v City of New York, 49 AD3d 872, 874 [2d Dept 2008]; see also Wilson v Bodian, 130 AD2d at 234.) Treating doctors, unlike reviewing doctors, possess “the greatest knowledge about the patient.” (Matter of Adam K. at 180.) Therefore, as a general rule, a party’s failure to call the treating doctor to give testimony on a material issue allows the court to draw an adverse inference “as to any evidence which the missing . . . witness ‘would be in a position to controvert.’ ” (Matter of Adam K. at 179, quoting Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996 [1985];.)

However, the rule “may not be used to draw any inferences beyond that.” (Matter of Adam K. at 179, quoting Matter of Jane PP. v Paul QQ. at 996.) An adverse inference, by itself, “does not permit establishment of the ultimate conclusion” that must be reached in a given matter. (Matter of Adam K. at 179.)

[3]; In the instant case, the ultimate issue to be decided is whether plaintiff met its burden of establishing the medical necessity of post-IME physical therapy treatments. Although Dr. Emmanuel’s testimony respecting his October 2010 examination may have been enough to shift the burden to plaintiff to establish the necessity of the post-IME treatments in January and February 2011, plaintiff countered Dr. Emmanuel’s testimony by submitting Dr. Demetrius’s post-IME medical records. Those records not only went into evidence without objection, but, more importantly, were not rebutted by any opposing proof from defendant.

Critically, Dr. Demetrius’s monthly medical reports include detailed evaluations of the patient’s ongoing complaints, the treating doctor’s findings, and the doctor’s recommendation for continuation of physical therapy treatments. Moreover, the reports, on their faces, set forth a facially valid factual basis and medical rationale for continuing the treatments before, during, and after January 2011. Based upon the treating doctor’s opinion that Mr. Fernandez’s condition had “moderately {**43 Misc 3d at 734}improved” with physical therapy, but he was still suffering from right and left shoulder joint pain, decreased range of motion in the upper extremities, and radiating pain and paresthesia to both the upper and lower extremities, plaintiff continued to provide physical therapy treatments to Mr. Fernandez.

Unlike the circumstances presented in Amato, plaintiff’s evidence takes the case out of the realm of “speculation” regarding the patient’s post-IME condition. On the other hand, under “missing witness” principles, plaintiff’s failure to call Dr. Demetrius cannot be ignored. By not calling him as a witness to give testimony regarding his diagnosis and treatment, plaintiff avoided exposing him to cross-examination. Since he clearly was in a position to give relevant, noncumulative testimony on a contested medical necessity issue, an adverse inference arises. Plaintiff’s failure to call him therefore allows the court to infer that he would not have been able to meaningfully controvert Dr. Emmanuel’s testimony respecting the patient’s condition in September and October 2010.

But that adverse inference helps defendant only to a limited extent. At least where, as here, defendant submitted no evidence contesting plaintiff’s admissible medical record evidence respecting the patient’s condition in January and February 2011, the absence of testimony from Dr. Demetrius is not dispositive.

Conclusion

In the final analysis, defendant’s proof satisfied its burden under Amato, shifting the burden to plaintiff to demonstrate through admissible proof that the post-IME services rendered by plaintiff were medically necessary. Plaintiff satisfied that burden through submission of medical records containing findings and opinions of the treating doctor, Dr. Demetrius. The medical records document the factual basis and medical rationale for the continued post-IME physical therapy treatments. Although plaintiff’s failure to call Dr. Demetrius as a witness gives rise to a limited adverse inference, that adverse inference by itself is not enough to defeat plaintiff’s otherwise sufficient medical record proof of medical necessity.

Accordingly, judgment is rendered for the plaintiff, for the full principal amount claimed ($321.14), with interest, costs, disbursements and attorney’s fees as allowed by law.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion.

Defendant established that the time to pay or deny plaintiff’s claim had been tolled by the timely issuance of examination under oath (EUO) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d 720, 722 [2006]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

In support of its motion, defendant established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants in that action, including plaintiff herein, “are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue.” As the instant action seeks to recover for assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case, defendant’s motion was properly granted (see Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d, 11th & 13th Jud Dists 2013] EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012])

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 6, 2012. The order denied 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided. Consequently, defendant’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ

2012-838 Q C., concur.
Decision Date: March 11, 2014