Decided on April 25, 2016

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 (Reginald A. Boddie, J.), entered August 12, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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 of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law since it did not establish either that defendant had failed to deny the claim 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 a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2011]).

We decline defendant’s request that we search the record and grant defendant summary judgment dismissing portions of each of plaintiff’s claims.

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

Elliot, J.P., Weston and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.

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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Indeed, in support of plaintiff’s cross motion, plaintiff’s counsel virtually conceded that plaintiff had failed to appear for the EUOs. Contrary to plaintiff’s further argument, defendant established that it had properly tolled its time to pay the two claims in question (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

We also reject plaintiff’s contention that defendant’s motion was premature in light of outstanding discovery (see CPLR 3212 [f]). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff did not object to defendant’s reasons for [*2]seeking the EUO during the claims processing stage, plaintiff may not raise such objections in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (cf. CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).

Plaintiff’s remaining arguments are moot and/or lack merit.

Accordingly, the order is affirmed.

Elliot, J.P., Weston and Solomon, JJ., concur.

Decided on April 19, 2016

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 (Maureen A. Healy, J.), entered July 9, 2013. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

Although the affidavit of defendant’s claims examiner established prima facie that defendant had not received the claim at issue, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

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

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decided on April 18, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered February 11, 2015, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered February 11, 2015, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely denied certain no-fault claims on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), and that the remaining claims were paid by defendant pursuant to a settlement agreement.

In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denials (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), or the calculation of the fee. Accordingly, defendant’s motion for summary judgment dismissing plaintiff’s claims – which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule or settlement agreement, was properly granted.

Plaintiff’s remaining contentions are either without merit or, where plaintiff failed to articulate any specific arguments in its appellate brief, abandoned on appeal (see Mendoza v Akerman Senterfitt LLP, 128 AD3d 480, 483 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 18, 2016

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2014, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 8, 2014, reversed, with $10 costs, and defendants’ motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath (EUOs) to plaintiff’s assignor (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]), and that the assignor failed to appear at two scheduled EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s specific contention, defendant established that it requested the EUOs within the applicable time frames set forth in the no-fault regulations, by submitting its EUO letters dated February 4, 2011 and March 1, 2011 (see 11 NYCRR 65-3.5[b], 65-3.6[b]; cf. National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [2015]). Moreover, the attorney who was assigned by defendant to take an EUO of plaintiff’s assignor with respect to the subject claim, and “who would have conducted the EUO if the [assignor] had appeared certainly was in a position to state that the [assignor] . . . did not . . . appear in his office on the date[s] indicated” (Hertz Corp., 124 AD3d at 411).

In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the [*2]assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 18, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.) dated April 4, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.) dated April 4, 2014, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., 136 AD3d 722 [2016]), and that the peer review reports of defendant’s acupuncturist were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the peer review report pertaining to acupuncture services rendered November 19, 2007 through November 29, 2007, failed to make a prima facie showing that the services rendered during this time frame were not medically necessary. The peer reviewer’s assertion, in effect, that the documentation submitted for his review lacked “supportive information” was insufficient to sustain defendant’s burden of eliminating all triable issues as to medical necessity (see Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50586[U][App Term, 1st Dept 2013]). Moreover, inasmuch as the peer reviewer did not address plaintiff’s claim for services rendered January 2, 2008, and “stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatment,” his report cannot properly form the basis for denial of this claim (see Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 44 Misc 3d 144[A], [*2]2014 NY Slip Op 51407[U][App Term, 1st Dept. 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 13, 2016

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered April 16, 2015, which, upon reargument, adhered to its prior order granting defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered April 16, 2015, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 99302; as modified, order affirmed, with $10 costs.

Defendant’s documentary submissions failed to eliminate all triable issues as to whether it properly denied plaintiff’s no-fault claim for $54.74, billed under CPT code 99203 (initial evaluation), thus precluding summary judgment dismissing this claim (see Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co., 50 Misc 3d 127[A], 2015 NY Slip Op 51849[U][App Term, 1st Dept. 2015]).

In the absence of any prejudice, Civil Court properly exercised its discretion under CPLR 2001, to allow defendant to correct the defect in form of the IME report of its acupuncturist/chiropractor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 11, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

Ordered that the order is reversed, without costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of insurance coverage is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity for the services rendered.

In this action by a New York City provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a New York City motor vehicle accident on July 29, 2009, defendant^[FN*] moved for summary judgment dismissing the complaint on the{**51 Misc 3d at 72} grounds that no coverage existed and that there was a lack of medical necessity for the services rendered. In support of its motion, defendant argued, among other things, that the Civil Court failed to obtain personal jurisdiction over defendant; that a conflict-of-law analysis required the application of Michigan law; and that there was a lack of coverage for the vehicle involved in the accident, as a Michigan court had issued an order, entered on default, in a declaratory judgment action, declaring the policy to be invalid at its inception due to the rescission of the insurance policy based on fraud and/or misrepresentation by the insured in procuring the Michigan policy. By order entered April 2, 2014, the Civil Court granted defendant’s motion, implicitly finding that personal jurisdiction over defendant had been acquired and holding that Michigan law controlled, pursuant to which an insurer may rescind an [*2]insurance policy and declare it void at its inception despite the fact that the claimant is an innocent third party. This appeal by plaintiff ensued. It is noted that plaintiff raises no issue regarding the Civil Court’s determination that Michigan law controls.

[1] Despite defendant’s assertions that it does not write insurance policies or conduct business in New York, it is uncontroverted that defendant’s New York certificate of authority states that defendant is licensed to engage in specified insurance business in New York. Consequently, defendant was authorized to do business in New York State, and, pursuant to Insurance Law § 1212 (a), an insurer authorized to do business in the state must appoint the Superintendent of Insurance as its agent for service of process “in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in this state” (emphasis added). Inasmuch as the cause of action in the case at bar arose in New York, we find that the service of process upon the Superintendent of Insurance was sufficient to acquire jurisdiction over defendant (see Insurance Law § 1212 [b]).

[2] Michigan law allows for the rescission of a motor vehicle insurance policy based on fraud or a material misrepresentation in the application for insurance (see Titan Ins. Co. v Hyten, 491 Mich 547, 817 NW2d 562 [2012]; Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *15-16 [Ct App, July 30, 2013, docket No. 301188], appeal denied 494 Mich 883, 834 NW2d 503 [2013]; Lake States Ins. Co. v Wilson, 231 Mich App 327, 586 NW2d 113 [1998]). However, Michigan{**51 Misc 3d at 73} has generally denied an insurer’s right to rescind a policy of insurance in order to avoid payment of no-fault benefits to an innocent third party (see Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *15-16; Great Lakes Cas. Ins. Co. v Auto Owners Ins. Co., 2010 WL 2595102, *1, 2010 Mich App LEXIS 1213, *2-3 [Ct App, June 29, 2010, docket No. 290871]; Lake States Ins. Co. v Wilson, 231 Mich App at 331, 586 NW2d at 115).

Contrary to the determination of the Civil Court, the holding of the Supreme Court of Michigan in Titan did not abrogate the innocent third party rule. In Gagnon, the plaintiff sought to recover no-fault personal injury protection benefits and the Court of Appeals of Michigan held that the innocent third party rule prohibited the insurer from rescinding the policy. The court distinguished Titan by holding that although the Supreme Court in Titan stated that an insurer is not precluded from availing itself of a remedy to avoid liability under an insurance policy on the ground of fraud in the application for insurance even when the claimant is a third party, “the insurer in Titan sought to reform an insurance policy by reducing the excess liability coverage limits available to innocent accident victims to the statutory minimum; it did not seek to completely avoid liability under the policy” (Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *19).

In view of the foregoing, we find that defendant cannot rely on a lack of coverage defense to withhold payment of no-fault benefits to plaintiff for the medical services it rendered to its assignor, who was an innocent third party. We note that since the Civil Court did not determine the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered, the matter is remitted to the Civil Court for a determination of that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of insurance coverage is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

Pesce, P.J., Weston and Solomon, JJ., concur.

Footnotes

Footnote *:In his affidavit in support of defendant’s motion, the general counsel for Auto Club Insurance Association states that “ACIA is also known as AAA Michigan.” However, defendant was not so described in the summons and complaint.

[*1]

Civil Court of the City of New York, Kings County, April 11, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn, for plaintiff.

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

{**52 Misc 3d at 492} OPINION OF THE COURT

Plaintiff’s and defendant’s respective motions for summary judgment are decided as follows:

I. Factual Background[*2]

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 three different codes promulgated under the Official New York Workers’ Compensation Medical Fee Schedule. These codes are 99215, 20553 and 20999. Through the affidavit of its owner, Ksenia Pavlova, plaintiff contends it has made a prima facie case because it timely mailed a claim (NYS Form NF-3) for services rendered to Cosby Reavis, in accordance with its office procedure for generating and mailing bills, and that defendant has not paid the bill.

Defendant received plaintiff’s claim on October 21, 2013, and issued a denial (NYS Form NF-10) of the claim on December 3, 2013, based on a defense of lack of medical necessity of the services rendered, and based upon its contention that plaintiff did not bill its services in accordance with the applicable fee schedule. Defendant submits a copy of the denial with the affidavit of its claims representative, Nancy Kowalchuk, who describes defendant’s procedure for receiving and reviewing claims, and for sending denials to its Southwest Output Processing Center. Defendant also submits the affidavit of Janine{**52 Misc 3d at 493} Wicks of its Southwest Output Processing Center, who describes defendant’s procedure for mailing responses to claims for benefits, such as plaintiff’s claim. Lastly, defendant submits the sworn statement of Dr. Dorothy Scarpinato, who describes her determination that plaintiff’s services were not medically necessary, based on her independent medical examination of Cosby Reavis.

II. Discussion

A. Fee Codes 99215 and 20553

[1] To prevail on a motion for summary judgment, a medical provider must establish its prima facie case by proving it mailed its “completed claim form to the insurer,” and the insurer failed to pay or deny the claim within 30 days of receipt of the claim (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]). With regard to the claims bearing codes 99215 and 20553, this court holds that plaintiff has met its prima facie burden. However, for the reasons stated below, the court finds that plaintiff has not met its prima facie burden as to the claim bearing code 20999.

Following submission of the bill, defendant had 30 days to pay or deny the claim for any defense, except for any non-precludable defense (Viviane Etienne, 25 NY3d at 506). As defendant denied plaintiff’s claim more than 30 days from the date of receipt, defendant did not preserve its defense of medical necessity (Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2d Dept 2000] [lack of medical necessity is a precludable defense]). In addition, defendant’s motion omits any argument concerning the proper billing of services associated with codes 20553 and 99215. Accordingly, this court grants plaintiff’s motion for summary judgment with regard to services related to codes 20553 and 99215.

B. “By Report” Code 20999

[2] With regard to the remaining code 20999, defendant argues that plaintiff has not satisfied its prima facie burden because plaintiff’s claim is incomplete. Specifically, defendant contends plaintiff did not provide sufficient information in support of the amount it charged for the services it designated with code 20999 of the Fee Schedule. Instead of having a relative value associated with the service, code 20999 is designated “By Report,” abbreviated “BR.” The Fee Schedule states that, in order to determine the appropriate monetary value of services designated [*3]“BR,” plaintiff must provide certain information.

{**52 Misc 3d at 494}“Information concerning the nature, extent, and need for the procedure or service, time, skill and equipment necessary, etc., is to be furnished using all of the following:

“A) Diagnosis (postoperative), pertinent history and physical findings.

“B) Size, location, and number of lesions or procedures where appropriate.

“C) A complete description of the major medical procedure and the supplementary procedures.

“D) When possible, list the closest similar procedure by code and relative value unit. The ‘BR’ relative value unit shall be consistent in relativity with the other relative value units in the schedule.

“E) Estimated follow up period, if not listed.

“F) Operative time.” (See Fee Schedule § 4, Surgery at 4, Surgical Ground Rule No. 10 [June 1, 2012 ed].)

In its papers, plaintiff makes no showing that it provided this information.

Neither plaintiff nor defendant provides any case law to support or refute defendant’s argument that this information is part of plaintiff’s prima facie burden, and this court has found no governing precedent. Thus, this issue appears to be a matter of first impression in this jurisdiction.

This court views “By Report” information as, by definition, part of the proof of plaintiff’s “completed claim form” (see Viviane Etienne, 25 NY3d at 507), and thus part of plaintiff’s prima facie burden. The Fee Schedule, which has been adopted into New York’s no-fault regulations (see 11 NYCRR 68.1 [a]), places an affirmative duty on the medical provider to submit this information to justify its billing. By omitting this information, plaintiff deprived defendant of sufficient notice of the claim. Without sufficient notice, defendant should not be expected to evaluate and pay the claim. Consequently, plaintiff did not establish its prima facie case for services related to code 20999.

Separate from the language of the Fee Schedule, defendant also argues that, pursuant to the recently amended 11 NYCRR 65-3.8 (g) (1), plaintiff must prove it billed in accordance with the Fee Schedule as part of its prima facie burden. As this court held in East Coast Acupuncture, P.C. v Hereford Ins. Co. (51 Misc 3d 441, 442-443 [Civ Ct, Kings County 2016]), the amended 11 NYCRR 65-3.8 (g) (1) does not per se require a{**52 Misc 3d at 495} medical provider to prove it billed in accordance with the Fee Schedule as part of its prima facie burden. Instead, the regulation states that, to the extent plaintiff bills amounts in excess of the Fee Schedule, the claim is not established.^[FN*] Therefore, this court held that the fee schedule defense is, under the amended [*4]regulation, non-precludable. Consistent with that opinion is the implication that, to even be considered, the basis of a bill must be established. Fee Schedule encoding generally acts as an agreed shorthand for the value of services. By exception, claims submitted through “By Report” codes have no predetermined relative value, and therefore, must be properly documented and detailed (as described in Surgical Ground Rule No. 10) before they can be considered established and complete. Accordingly, this court holds that, by failing to provide the information specified in the Fee Schedule in support of its services, plaintiff has not made its prima facie case as to code 20999.

III. Conclusion

For the foregoing reasons, plaintiff’s motion is granted with respect to the services billed under codes 20553 and 99215, in the amount of $267.79, and plaintiff may enter judgment for $267.79 plus statutory costs, attorney’s fees, disbursements and interest. Defendant’s motion is granted with respect to services billed under code 20999, and plaintiff’s claim with respect to those services is dismissed.

Footnotes

Footnote *:In any event, defendant does not argue that plaintiff billed in excess of the Fee Schedule. Rather, defendant argues that its fee schedule denial arose because plaintiff failed to provide the information necessary to determine the appropriate fee for its services related to code 20999.