SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 14, 2010. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branch [*2]of its motion seeking summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the District Court found that defendant had demonstrated that it had timely denied plaintiff’s claim, but denied defendant’s motion on the ground that the independent medical examination (IME) report annexed to defendant’s motion did not establish a lack of medical necessity for the supplies provided.

In support of its motion, defendant submitted, among other things, an affirmed IME report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies provided (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]). Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]). As plaintiff has not challenged the District Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered September 11, 2009. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff lacked standing to bring the action because its owner’s license to practice medicine had been suspended. The court declined to consider defendant’s remaining arguments in light of its determination.

On appeal, plaintiff’s sole argument is that it is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to the revocation of its owner’s license. We agree (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Thus, both plaintiff’s motion for summary judgment should not have been denied and defendant’s cross motion for summary judgment dismissing the complaint should not have been granted on that ground.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

Golia, J.P., Weston and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 9, 2010. The order, insofar as appealed from, granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide responses to its discovery demands to the extent of conditionally vacating the notice of trial if plaintiff failed to, among other things, provide defendant with W-2 and 1099 forms for named individuals, as well as plaintiff’s federal tax returns and schedules by the time the case “come[s] up for trial.”

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide responses to its discovery demands to the extent of conditionally vacating the notice of trial if plaintiff failed to, among other things, provide defendant with W-2 and 1099 forms for named individuals, as well as plaintiff’s federal tax returns and schedules by the time the case “come[s] up for trial.”

The notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. As a result, we find no basis to disturb the Civil Court’s order which granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar to the extent of conditionally striking the notice of trial so plaintiff could provide the discovery which defendant had requested (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate [*2]Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, as well as W-2 or 1099 forms for individuals who provided the services at issue, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; see also Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139[A], 2011 NY Slip Op 51551[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 24, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

The affidavit executed by defendant’s litigation representative was sufficient to establish that defendant’s NF-10 forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were timely mailed (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, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.

As defendant failed to make a prima facie showing of its entitlement to judgment as a [*2]matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 October 15, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Golia, J.P., Weston and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 13, 2009. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $498.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals as limited by the brief from so much of an order as denied the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claim for $498.

Defendant established that it had timely denied the claim for $498 (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]) on the ground of lack of medical necessity. In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; [*2]A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that these documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition, plaintiff submitted only an affirmation from its counsel and failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 should have been granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered September 25, 2009. The order, insofar as appealed from 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, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical services at issue.

In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 2, 2009. 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, without costs,

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely denied the claim (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]) on the ground of lack of medical necessity. The papers submitted in support of defendant’s cross motion for summary judgment included an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

District Court of Nassau County, First District

CV-013190-10

Friedman, Harfenist, Kraut & Perlstein, LLP

Verrill & Goodstein, Esqs.

Fred J. Hirsh, J.

Defendant moves for summary judgment in this action for first party no-fault benefits.

BACKGROUND

Lawrence Wilkes (“Wilkes”) sustained injuries in a motor vehicle accident that occurred on June 18, 2009.

Tri-State Consumer Insurance Company (“Tri-State”) was the insurance carrier that provided Wilkes with no-fault benefits for injuries sustained as a result of the accident.

All County, LLC (“All County”) performed a thoracic MRI of Wilkes on September 17, 2009. Wilkes assigned his rights to no-fault benefits to All County. All County submitted a No Fault Assignment of Benefits form, an NF-3 and a bill dated September 22, 2009 to Tri-State for payment.

Tri-State acknowledged receipt of the bill on September 25, 2009.

Tri-State issued an NF-10 dated September 29, 2009 denying payment of the claim for the thoracic MRI in full on the grounds all no-fault benefits for orthopedic treatment or testing had been denied effective September 13, 2009 based upon an Independent [*2]Medical Examination (“IME”) conducted by Kenneth Falvo, M.D. on August 18, 2009.

Tri-State does not state whether a copy of the denial of all claims for orthopedic testing or treatment subsequent to September 13, 2009 was provided to Wilkes or if so, when and how such notice was given.

The doctor who ordered the thoracic MRI is not known since a copy of the prescription or referral for the thoracic MRI and/or the MRI report is not contained in the record.^[FN1] The date the MRI was ordered is not stated because the prescription for the test is not contained in the record.

Dr. Falvo’s IME report reflects Wiles chief complaints pain in the neck, back, right knee an both hands. Dr. Falvo’s IME report states Wilkes had been examined by Dr. Goldstein an orthopedist, Dr. Liguori a neurologist, Dr. Stein, a psychologist and Dr. Mondshine a dentist for treatment of TMJ. The report states Wilkes is receiving acupuncture and chiropractic treatment 3 to 4 times a week. The IME report does not state from whom Wilkes was receiving chiropractic or acupuncture treatments.

The IME report reflects Dr. Falvo had received and reviewed a neuro-psychological evaluation and test report prepared by Dr. Stein dated July 3, 2009, a dental evaluation report of Dr. Mondshine dated July 16, 2009 and neurological evaluation report of Dr. Liguori dated June 26, 2009. Even though Dr. Falvo’s IME report reflects Wilkes was examined by Dr. Goldstein on the date of the accident, Dr. Falvo did not receive or review any reports or records from Dr. Goldstein. Dr. Falvo also did not receive or review any reports or records for the chiropractic or acupuncture treatment Wilkes was receiving.

Dr. Falvo examination revealed Wilkes had restriction of motion of the lumbar spine in all planes.

Dr. Falvo makes a diagnosis of cervical sprain, resolved, lumbar sprain resolved, contusion of the right knee, resolved and contusion carpometacarpal joints of both hands, healed. Dr. Falvo’s attributes Wilkes signs and symptoms in part to the June 18, 2009 motor vehicle accident. He attributes the low back injuries and conditions in part to Wilkes longstanding, symptomatic law back condition for which Wilkes was receiving treatment at the time of the June 18, 2009 motor vehicle accident.^[FN2]

The IME report does not state Dr. Falvo examined Wilkes thoracic spine. The report does not contain any mention of an orthopedic or neurological examination of the thoracic spine. The IME report discusses and evaluates Wilkes injuries and complaints relating to his cervical spine, his arms and wrists, his low back and his knees. The IME report does not make mention of the thoracic spine.

The court must start its analysis of this motion as it does with all no-fault claims that [*3]a timely submitted claim creates a presumption of medical necessity. Globe Surgical Supply v. Geico Ins. Co., 59 AD3d 129 (2nd Dept. 2008); Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004); and All County Open MRI & Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th & 10th Jud. Dists. 2006). All County submitted the claim for the thoracic MRI within five days of the performance of the MRI which is well within 45 days required by the no-fault regulations. 11 NYCRR 65-1.1. Defendant’s denial admits receipt of the claim on September 25, 2009, 8 days after the thoracic MRI was performed. Therefore, the claim is timely submitted thus creating a presumption the thoracic MRI was medically necessary.

Since the claim was timely submitted, the burden shifted to the defendant to rebut the presumption of medical necessity. A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 10 Misc 3d 50 (App.Term 2nd & 11th Jud. Dists. 2005); and AP Orthopedics & Rehabilitation, P.C. v. Allstate Ins. Co., 27 Misc 3d 1098 (Civil Ct. Richmond Co. 2010).

Medical treatment or testing is not medically necessary if the treatment or testing is not in accordance with general accepted medical practices. Nir v. Allstate Ins. Co., 7 Misc 3d 544 (Civil Ct. Kings Co. 2005). Treatment or testing is medically necessary if a reasonably prudent doctor exercising his or her best judgment under the circumstances and in accordance with the standard of care in that community would have provided the treatment or performed or ordered the test. Nestorowich v. Ricotta, 97 NY2d 393 (2002). To determine whether a reasonably prudent doctor exercising his or her best judgment would have ordered a thoracic MRI, the court must consider factors such as who ordered the test, when was the test ordered, what were the patient’s complaints and symptoms when the test was ordered, what treatment was the patient receiving, how was the patient responding to that treatment, how much time had elapsed between the time the injury or condition was diagnosed and the time the test was ordered, what was the diagnosis made by the medical provider who ordered the test, was the test needed for diagnosis and/or to determine appropriate treatment and/or would the results of the test change or affected treatment.

To establish treatment or testing is not medically necessary, the defendant must establish a factual basis and medical rationale for its determination the treatment or testing was not medically necessary. Biobalance Medical, P.C. v. Clarendon National Ins. Co., 34 Misc 3d 134(A) (App Term, 2nd, 11th & 1th Jud. Dists. 2011); and Right Aid Diagnostic Medicine, P.C. v. Geico Ins. Co., 34 Misc 3d 133(A) (App.Term, 2nd, 11th & 13th Jud. Dists.).

In this case, defendant has not offered any factual or medical basis for its conclusion the thoracic MRI was not medically necessary. Dr. Falvo’s IME report does not indicate he examined the thoracic spine. His IME report relates to the cervical and lumbar spine, the right knee and the carpometacarpal joints of both hands.

Dr. Falvo’s IME report reflects Wilkes had been examined and was under the care of an orthopedist, a neurologist and a chiropractor. Dr. Falvo’s report does not indicate who ordered the thoracic MRI. Dr. Falvo’s report does not indicate he was aware a thoracic MRI had been ordered. Dr. Falvo’s IME report indicates Wilkes does not need any additional treatment or testing from the viewpoint of an orthopedist for injuries to the cervical and lumbar spine, wrists and knee. The IME report does not state treatment is not needed for injuries to the thoracic spine. [*4]

Dr. Falvo is a board certified orthopedist. He is not a neurologist or a chiropractor. The denial indicates no-fault benefits for orthopedic diagnostic testing had been denied as of September 13, 2009 based upon the IME of Dr. Falvo. However, the IME and denial does not indicate no-fault benefits were being denied for neurological or chiropractic evaluation, treatment and/or testing. The papers before the court do not state who ordered the thoracic MRI. Dr. Falvo’s IME report would not be sufficient to establish the thoracic MRI was not medically necessary is the MRI was ordered by either the neurologist or the chiropractor. See, Shectman v. Wilson. 68 AD3d 848 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

Dr. Falvo’s IME report does not state the thoracic MRI was not medically necessary when it was ordered. As noted previously, the IME report does not indicate who ordered the MRI or when the MRI was ordered. Ordinarily, a period of time passes from the date an MRI is ordered and the MRI is performed. A diagnostic radiology facility should not have its claim summarily dismissed if the MRI was ordered prior to the effective date of the denial.

An insurer may not simply deny payment of a timely submitted no-fault claim based upon a “IME cut-off”. In order to obtain summary judgment based upon on IME cut-off, the IME report must present a factual basis and a medical rationale establishing the treatment provided and/or the testing performed was not medically necessary. Amato v. State Farm Ins. Co., 30 Misc 3d 238 (District Ct. Nassau Co., 2010).

In order to obtain summary judgment, the party moving for summary judgment must establish a prima facie entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); and Zuckerman v. City of New York 49 NY2d 557 (1980).

When deciding a motion for summary judgment, the court’s function is to determine if triable issues of fact exist. Matter of Suffolk County Dept. of Social Services v. James M. 83 NY2d 178 (1994); and Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). Summary judgment should be denied is the court has any doubt regarding the existence of triable issues of fact. Freese v. Schwartz, 203 AD2d 513 (2nd Dept. 1994); and Miceli v. Purex Corp., 84 AD2d 562 (2nd Dept. 1984)

If the party moving for summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 AD3d 397 (2nd Dept. 2008); Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept., 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept., 1999).

Defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law. Questions of fact exist relating to who ordered the MRI, when was the MRI ordered and the condition of Wilkes thoracic spine that resulted in the ordering of the thoracic MRI.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

SO ORDERED:

Hon. Fred J. Hirsh [*5]

District Court Judge

Dated: January 23, 2012

Footnotes

Footnote 1:The name of the medical provider who ordered the MRI can generally be determined by reviewing the MRI report because the report is generally addressed to the medical provider who ordered the MRI.

Footnote 2:The IME notes Wilkes is on Social Security Disability. The report notes Wilkes had a lumbar laminectomy in 1997. The IME report states Wilkes is evaluated by Dr. Goldstein every six months regarding his disability status.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 15, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

Plaintiff concedes that defendant timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity as well as on the alternative ground that the amounts billed for were in excess of the fee schedules. The record establishes that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity for the services rendered (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]). As a result, the burden shifted to plaintiff to rebut defendant’s showing.

Since plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52061[U] [App Term, 9th & 10th Jud Dists 2010]; Speciality Surgical Servs. v Travelers Ins. Co. 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Nicolai, P.J., Molia and Iannaccci, JJ., concur.
Decision Date: January 17, 2012