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 (Bonnie P. Chaikin, J.), dated June 24, 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 which denied its unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claims on the ground of lack of medical necessity (see Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affidavit of defendant’s chiropractor and his independent medical examination (IME) report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the equipment provided to plaintiff’s assignor (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]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

As plaintiff did not submit papers opposing defendant’s motion, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

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, Third District (Tricia M. Ferrell, J.), dated October 29, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiffs’ motion for leave to renew their prior motion for summary judgment, which motion was denied by an order of the same court dated July 21, 2008, and, in effect, for leave to renew their opposition to defendant’s prior cross motion for summary judgment dismissing the complaint, which cross motion was granted by the July 21, 2008 order, and, upon renewal, granting plaintiffs’ motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiffs the principal sum of $11,310.74.

ORDERED that the judgment is reversed, without costs, the order dated October 29, 2009 is vacated, plaintiffs’ motion for leave to renew is denied, and the order dated July 21, 2008 is reinstated.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order dated July 21, 2008, the District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that the matter should be referred to the Board for its determination of the issue of whether plaintiffs’ assignor was in the course of his employment at the time of the accident. [*2]

Thereafter, plaintiffs moved for leave to renew their prior motion on the ground that, at the time of the prior order, the District Court had been unaware that the Board would be unable to hear the matter since plaintiffs’ assignor had failed to file a claim with the Board. In support of their motion, plaintiffs offered a copy of their counsel’s letter to the Board which requested that the Board schedule a hearing regarding the issue of their assignor’s employment. Plaintiffs also annexed a letter from the Board which purportedly responded to counsel’s letter but in fact did not do so, and instead referred to a different letter sent by counsel.

Defendant opposed plaintiffs’ motion, urging the court to deny the motion because it was not “based upon new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there . . . [was] a change in the law that would change the prior determination” (CPLR 2221 [e] [2]) and because the motion did not “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]).

By order dated October 29, 2009, the District Court granted plaintiffs’ motion for leave to renew and, upon renewal, in effect vacated the July 21, 2008 order, granted plaintiffs’ motion for summary judgment, and implicitly denied defendant’s cross motion for summary judgment. A judgment in the principal sum of $11,310.74 was subsequently entered. Defendant’s appeal from the order is deemed to be from the judgment (CPLR 5501 [c]).

“A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion” (Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR 2221 [e]; Keyland Mech. Corp. v 529 Empire Realty Corp., 48 AD3d 755 [2008]). Such a motion ” is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'” (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]). The District Court granted leave to renew based on plaintiffs’ purported “new facts.” However, the “new facts” offered in support of renewal were in the form of a letter from plaintiffs’ counsel to the Board, requesting that the Board schedule a hearing pursuant to the District Court’s July 21, 2008 order, and a letter from the Board’s General Counsel to plaintiffs’ counsel which was not responsive to plaintiffs’ counsel’s letter, did not refer to the instant case, and, in fact, referred to a different letter from plaintiffs’ counsel. There was nothing in plaintiffs’ submissions to indicate any personal knowledge that a proper application for workers’ compensation benefits had been made by plaintiffs’ assignor, or that the Board had actually rejected such application. Accordingly, leave to renew should have been denied, and the District Court improvidently exercised its discretion in granting plaintiffs’ motion.

We note that, contrary to the conclusion of the District Court, it is the Board which has primary jurisdiction to resolve the question of coverage (see Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Accordingly, the judgment is reversed, the October 29, 2009 order is vacated, plaintiffs’ motion for leave to renew is denied and the order dated July 21, 2008 is reinstated.

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

[*1]

Civil Court of the City of New York, New York County, January 17, 2012

APPEARANCES OF COUNSEL

Leon Kucherovsky, New York City (Matthew Viverito of counsel), for plaintiff. Short & Billy P.C., New York City (Mark Puleo of counsel), for defendant.

{**35 Misc 3d at 583} OPINION OF THE COURT

Andrea Masley, J.

Plaintiff Stephen Matrangolo, D.C., P.C., a chiropractic practice, commenced this action in June 2007 for the recovery of no-fault benefits for services rendered to assignors Tina Espinozo-Hernandez and Edgar Hernandez for injuries arising from a car accident in December of 2006. The answer dated August 17, 2007 consists of six affirmative defenses including: (2) plaintiff lacks standing; (4) services provided by an independent contractor; and (6) the referral was an improper self-referral. After trial on June 9, 2011, the court reserved decision and the parties were directed to submit posttrial memoranda on issues raised but not resolved at trial.^[FN*] [*2]

{**35 Misc 3d at 584}For the following reasons, the court finds that Public Health Law § 238-a does not apply to the electromuscular testing provided here and thus is not a bar to Dr. Matrangolo’s claim. However, based on the testimony and evidence before it, the court finds that Dr. Matrangolo is not entitled to compensation for services provided by Dr. Brawner.

The parties stipulated at trial to all 11 outstanding health insurance claim forms for electromuscular testing services rendered in the amount of $2,168.82 for Ms. Espinozo-Hernandez and $2,807.64 for Mr. Hernandez. All services for assignor Tina Espinozo-Hernandez were rendered on December 11, 18, and 27 of 2006. For assignor Edgar Hernandez, services were rendered on December 18 and 27 of 2006, and on January 3 and 8 of 2007. Maria Ingrassia, Dr. Matrangolo’s medical biller, the sole witness, testified for plaintiff that Baldwin Medical referred the assignors to Dr. Matrangolo for neuromuscular testing, and that bills for plaintiff’s services were timely submitted and remain unpaid. Defendant stipulated to plaintiff’s prima facie case and asserted, as affirmative defenses, that the referral to Dr. Matrangolo constitutes a violation of Public Health Law § 238-a and that plaintiff lacks standing since it is billing for services provided by a nonparty physician. Plaintiff argued that defendant has failed to rebut its prima facie case and that Public Health Law § 238-a applies to physicians but not to chiropractors such as himself.

Defendant sought to introduce a lease between plaintiff and Baldwin Medical over objection from plaintiff. Defendant sought sanctions for plaintiff’s noncompliance with its May 13, 2011 subpoena ad testificandum and duces tecum of Dr. Matrangolo which seeks the patient file for each AAO; the leases between Dr. Matrangolo and the referring provider for 2006, 2007 and 2008; records of payments made by Dr. Matrangolo to the referring provider; all correspondence between Dr. Matrangolo and the referring provider; all W-2s or 1099s issued by Dr. Matrangolo to the technician who administered the tests in 2006, 2007 and 2008; and all documents regarding the financial relationship between plaintiff and the referring provider.

On cross-examination, Ms. Ingrassia identified Dr. Matrangolo’s signature on the lease and defendant offered it into evidence as an admission against interest. Had plaintiff responded{**35 Misc 3d at 585} to defendant’s trial subpoena, defendant could have offered the lease as a business record. However, by refusing to comply and not moving for relief from the subpoena, plaintiff robbed defendant of the opportunity to establish the requisite foundation. (CPLR 4518.) The lease had been identified by plaintiff in response to interrogatories which had been court ordered. Alternatively, defendant asked the court to make an adverse inference against plaintiff based on plaintiff’s failure to respond to the trial subpoena and allow the lease into evidence.

The witness also identified Dr. Brawner as a doctor who is associated with Baldwin Medical but who is not an employee of Dr. Matrangolo.

Defendant read plaintiff’s responses to interrogatories, as to the electromuscular testing of the AAOs, into the record. As to who administered the test to the AAOs, plaintiff responded Dr. Josephine Brawner. In response to the question how many people do the testing for Dr. Matrangolo, plaintiff responded Dr. Brawner. At trial, plaintiff objected to the interrogatories as evidence because plaintiff’s counsel explained that Dr. Matrangolo made a mistake when he responded to the interrogatories; an employee not Dr. Brawner administered the tests here. The [*3]court struck plaintiff’s counsel’s testimony. The court rejects all of plaintiff’s attempts to change plaintiff’s discovery responses in its posttrial brief. Plaintiff did not supplement its discovery or issue a correction. The time for testimony and evidence was at trial.

Exhibit A in evidence is a lease between Baldwin Medical Services P.C. and Dr. Stephen Matrangolo Corporation from January 1, 2007 to December 31, 2008. This lease was introduced at trial by defendant over plaintiff’s objection. Plaintiff produced this lease in discovery. Indeed, plaintiff annexed the lease to plaintiff’s posttrial memorandum as evidence of its compliance with discovery. Accordingly, there is no reason to believe the lease is not trustworthy. Plaintiff’s objection to admission of the lease is curious since the existence of a valid lease in effect from January 1, 2007 establishes a safe harbor for plaintiff for those services rendered in 2007. However, having failed to produce in discovery or at trial a lease for 2006, plaintiff would not be entitled to the protection of Public Health Law § 238-a (5) (b) (i). Therefore, if Public Health Law § 238-a applied to plaintiff, then he would be entitled to reimbursement only for those services rendered after January 1, 2007. Accordingly, it is unnecessary to otherwise address the subpoena issues.{**35 Misc 3d at 586}

In its posttrial memorandum, defendant argues that Dr. Matrangolo rents space from the referring provider Dr. Brawner for purposes of rendering services for which he is referred, and that this relationship in and of itself constitutes an improper referral under Public Health Law § 238-a. The absence of a lease for the 2006 calendar year, according to defendant, constitutes evidence of an improper referral. Lastly, defendant argues that plaintiff lacks standing since he billed for services rendered by Dr. Brawner, a nonparty physician.

Public Health Law § 238-a prohibits a practitioner from making a referral for services to a provider when the practitioner or an immediate family member of such practitioner has a “financial relationship” with the provider. (Stephen Matrangalo, DC, P.C. v Allstate Ins. Co., 31 Misc 3d 129[A], 2011 NY Slip Op 50517[U] [App Term, 1st Dept 2011].) A financial relationship is defined in Public Health Law § 238 (3) as “an ownership interest, investment interest or compensation arrangement.” A compensation arrangement is defined as “any remuneration between a practitioner . . . and a health care provider.” (Public Health Law § 238-a [5] [a].) The statute is clear that compensation does not include payments for the rental or lease of office space if there is a written agreement signed by the parties, for a rental term of at least one year, consistent with fair market value in an amount that does not vary with “volume or value of any referrals of business between the parties.” (Public Health Law § 238-a [5] [b] [i] [A].)

A plain reading of the statute supports plaintiff’s interpretation that, as a chiropractor, his services fall outside the ambit of Public Health Law § 238-a. Public Health Law § 238-a provides:

“1. (a) A practitioner authorized to order clinical laboratory services, pharmacy services, radiation therapy services, physical therapy services or x-ray or{**35 Misc 3d at 587} imaging services may not make a referral for such services to a health care provider authorized to provide such services where such practitioner or immediate family member of such practitioner has a financial relationship with such health care provider.

“(b) A health care provider or a referring practitioner may not present or cause to be presented to any individual or third party payor or other entity a claim, bill, or other demand for payment for clinical laboratory services, pharmacy services, radiation therapy services, physical [*4]therapy services or x-ray or imaging services furnished pursuant to a referral prohibited by this subdivision.

“2. Subdivision one of this section shall not apply in any of the following cases:

“(a) practitioners’ services—in the case of practitioners’ services provided personally by, or under the supervision of, another practitioner in the same group practice as the referring practitioner;

“(b) in-office ancillary services—in the case of health or health related items or services (i) that are furnished personally by the referring practitioner, personally by a practitioner who is a member of the same group practice as the referring practitioner, or personally by individuals who are employed by such practitioner or group practice and who are supervised by the practitioner or by another practitioner in the group practice; and in a building in which the referring practitioner, or another practitioner who is a member of the same group practice, furnishes practitioners’ services unrelated to the furnishing of such items or services, or in the case of a referring practitioner who is a member of a group practice, in another building which is used by the group practice for the centralized provision of such items or services of the group; and (ii) that are billed by the practitioner performing or supervising the services, by a group practice of which such practitioner is a member, or by an entity that is wholly owned by such practitioner or such group practice.” (Emphasis added.)

Public Health Law § 238 (11) defines “Practitioner” as “a licensed or registered physician, dentist, podiatrist, chiropractor, nurse, midwife, physician assistant or specialist assistant, physical therapist, or optometrist.” (Emphasis added.)

Public Health Law § 238 defines each of the five enumerated “services”:

“1. ‘Clinical laboratory services’ shall mean the microbiological, serological, chemical, hematological, biophysical, cytological or pathological examination of materials derived from the human body, for the purposes of obtaining information for the diagnosis, prevention, or treatment of disease or the assessment of health condition . . .{**35 Misc 3d at 588}

“13. ‘X-ray or imaging services’ shall mean diagnostic imaging techniques which shall include but not be limited to the following:

“(a) Conventional x-ray or radiology.

“(b) Fluoroscopy.

“(c) Digital radiography.

“(d) Computed tomography.

“(e) Magnetic resonance imaging.

“(f) Nuclear imaging.

“(g) Ultrasonography.

“(h) Angiography.

“14. ‘Pharmacy services’ shall mean the preparing, compounding, preserving or, the dispensing of drugs, medicines and therapeutic devices on the basis of prescriptions or other legal authority.

“15. ‘Radiation therapy services’ shall mean the use of high energy x-rays, particles, or radiation materials for the treatment of cancer and other diseases.

“16. ‘Physical therapy services’ means physical therapy as defined by section sixty-seven [*5]hundred thirty-one of the education law.”

According to Education Law § 6731, “Physical therapy” is defined as

“a. The evaluation, treatment or prevention of disability, injury, disease, or other condition of health using physical, chemical, and mechanical means including, but not limited to heat, cold, light, air, water, sound, electricity, massage, mobilization, and therapeutic exercise with or without assistive devices, and the performance and interpretation of tests and measurements to assess pathophysiological, pathomechanical, and developmental deficits of human systems to determine treatment, and assist in diagnosis and prognosis.

“b. The use of roentgen rays or radium, or the use of electricity for surgical purposes such as cauterization shall not be included in the practice of physical therapy.” (Emphasis added.)

The service at issue here is “electromuscular testing,” which is not an enumerated service in Public Health Law § 238-a. Education Law § 6551 defines the practice of “chiropractic” as:

“1. The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion,{**35 Misc 3d at 589} or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

“2. a. A license to practice as a chiropractor shall not permit the holder thereof to use radio-therapy, fluoroscopy, or any form of ionizing radiation except X-ray which shall be used for the detection of structural imbalance, distortion, or subluxations in the human body.

“b. The requirements and limitations with respect to the use of X-ray by chiropractors shall be enforced by the state commissioner of health and he is authorized to promulgate rules and regulations after conferring with the board to carry out the purposes of this subdivision.

“c. Chiropractors shall retain for a period of three years all X-ray films taken in the course of their practice, together with the records pertaining thereto, and shall make such films and records available to the state commissioner of health or his representative on demand.

“3. A license to practice chiropractic shall not permit the holder thereof to treat for any infectious diseases such as pneumonia, any communicable diseases listed in the sanitary code of the state of New York, any of the cardio-vascular-renal or cardio-pulmonary diseases, any surgical condition of the abdomen such as acute appendicitis, or diabetes, or any benign or malignant neoplasms; to operate; to reduce fractures or dislocations; to prescribe, administer, dispense or use in his practice drugs or medicines; or to use diagnostic or therapeutic methods involving chemical or biological means except diagnostic services performed by clinical laboratories which services shall be approved by the board as appropriate to the practice of chiropractic; or to utilize electrical devices except those devices approved by the board as being appropriate to the practice of chiropractic. Nothing herein shall be construed to prohibit a licensed chiropractor who has successfully completed a registered doctoral program in chiropractic, which contains courses of study in nutrition satisfactory to the department, from using nutritional counseling,{**35 Misc 3d at 590} [*6]including the dispensing of food concentrates, food extracts, vitamins, minerals, and other nutritional supplements approved by the board as being appropriate to, and as a part of, his or her practice of chiropractic. Nothing herein shall be construed to prohibit an individual who is not subject to regulation in this state as a licensed chiropractor from engaging in nutritional counseling.” (Emphasis added.)

Not one of the enumerated “services” includes neuromuscular electrical testing or chiropractic services. The statute clearly bars Dr. Matrangolo as a “practitioner” from making a referral to a family member or entity in which he has a financial interest, but it does not bar a practitioner, such as Dr. Brawner, from referring a patient to Dr. Matrangolo for chiropractic services or testing that falls within the scope of chiropracty because chiropracty is not one of the five enumerated services in Public Health Law § 238-a.

“Public Health Law § 238-a has an obvious and salutary purpose: to prevent the provision of health care from being based on financial incentive rather than patient welfare and medical necessity.” (Matrangolo, as Assignee of David Fitzhugh v Progressive Cas. Ins. Co., Civ Ct, NY County, Dec. 1, 2010, index No. 52599/09.) It is clear from the legislative history that the legislature was concerned about physician investors making self-referrals to clinical laboratories, imaging services and physical therapy. (Mem of Assemblyman Richard N. Gottfried, 1992 NY Legis Ann, at 513; Governor’s Mem approving L 1992, ch 803, 1992 NY Legis Ann, at 515.) Pharmacies were added in 1993. (Governor’s Program Bill Mem approving L 1993, ch 443, 1993 NY Legis Ann, at 321.) Whether to include “chiropracty” or “electromuscular” testing as an enumerated service in Public Health Law § 238-a is a decision to be made by the legislature. Although the Public Health Law is not a bar to plaintiff’s claims, Dr. Matrangolo is not entitled to payment because the evidence before the court is that Dr. Brawner, not Dr. Matrangolo, provided the services. (A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d Dept 2005].) In the claim forms in evidence, plaintiff states that the tests were administered by Dr. Brawner.

Accordingly, it is ordered, that the case is dismissed with prejudice.

Footnotes

Footnote *: The purpose of the posttrial memoranda was to provide the parties an opportunity to explain the legal basis for arguments made during trial; not for the submission of additional testimony or evidence. Accordingly, the court rejects Dr. Matrangolo’s affidavit. The time for his testimony was at trial in response to defendant’s subpoena. Likewise, the court rejects defendant’s submission of examinations before trial of Dr. Matrangolo taken in other cases (e.g. June 5, 2008 transcript, without an index number, states that it was taken by order of Justice Lebedeff in Queens County Civil Court where the as assignee of [AAO] is Ashak Akram; and March 12, 2007, in 116 different matters for which the index numbers are not listed).

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 (Wavny Toussaint, J.), entered June 1, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

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 supplies 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 medical supplies at issue. Defendant’s showing that such supplies were not medically necessary was not rebutted by [*2]plaintiff. 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 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 13, 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 (Robin S. Garson, J.), entered June 30, 2010, deemed from a judgment of the same court entered July 22, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the June 30, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,177.63

ORDERED that the judgment is reversed, without costs, the order entered June 30, 2010 is vacated, plaintiff’s motion for summary judgment is denied 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, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. After judgment was entered, defendant appealed from the order. We deem defendant’s appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

The affidavit of defendant’s litigation representative established that defendant had timely [*2]mailed its request and follow-up request for verification in accordance with its 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 demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, 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, thus, plaintiff’s action is premature.

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

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: January 13, 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 (Robin S. Garson, J.), entered June 8, 2009. 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.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, had been timely mailed in accordance with defendant’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, among other [*2]things, an affidavit by its chiropractor/acupuncturist, together with her peer review report, which set forth a factual basis and medical rationale for her determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. In light of the foregoing, defendant’s motion for summary judgment dismissing the complaint should have been 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 13, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 29, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty, P.C., Bethpage (Kevin R. Glynn of counsel), for appellant.

{**35 Misc 3d at 70} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted; as so modified, 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion.

A provider is required to submit proof of claim to the insurer “in no event later than 45 days after the date services are rendered” unless the insurer has been provided with “clear and reasonable justification for the failure to comply with such time limitation” (Insurance Department Regulations [11 {**35 Misc 3d at 71}NYCRR] § 65-1.1). Plaintiff’s billing manager alleged that he had [*2]personally mailed a claim form (which billed for acupuncture services rendered from May 23, 2007 through May 31, 2007) on June 21, 2007. Defendant denied payment for the portion of this claim which billed for treatment on May 23, 2007 and May 24, 2007, based on plaintiff’s submission of the claim form beyond the 45-day period. Defendant’s claims examiner averred that the claim form had not been received by defendant until July 13, 2007 and annexed the envelope, bearing a July 10, 2007 postmark, which purportedly contained the claim form in question. As there is an issue of fact regarding the date that this claim form was mailed, defendant was not entitled to summary judgment dismissing the portion of the claim which billed for treatment on May 23, 2007 and May 24, 2007.

With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.

Defendant denied the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 based on an independent medical examination (IME) performed on August 13, 2007 by an acupuncturist who concluded that further acupuncture treatment was no longer necessary. In support of its cross motion, defendant submitted the sworn report of the acupuncturist, which established, prima facie, a lack of medical necessity for the services performed from August 29, 2007 through September 6, 2007. In opposition, plaintiff submitted the affidavit of its treating acupuncturist which did not rebut the conclusions set forth in the IME report (see Olga Bard Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51898[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]). Accordingly, so much of defendant’s cross motion as seeks to dismiss this portion of plaintiff’s claim should have been granted.{**35 Misc 3d at 72}

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 is granted.

Golia, J. (dissenting in part and concurring in part and voting to modify the order, insofar as appealed from, by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted and by providing that so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover for services rendered from May 31, 2007 through August 27, 2007 is vacated, [*3]and the matter is remitted to the Civil Court for a new determination of this branch of defendant’s cross motion, in the following memorandum). I must dissent from my colleagues in the majority as to their implicit finding that a court is under no obligation to take notice of the rates set forth in the workers’ compensation fee schedule. Indeed, the question here is one of judicial notice and the obligations of the court with respect thereto. While the majority does not specifically cite to the term, judicial notice is the issue. I previously filed a concurrence addressing the very same issue in Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co. (14 Misc 3d 142[A], 2007 NY Slip Op 50372[U] [App Term, 2d & 11th Jud Dists 2007]). While my concurrence in Stanley Liebowitz, M.D. P.C. specifically addressed the Civil Court’s grant of summary judgment to the medical provider, as opposed to the denial of summary judgment to the insurance provider, the issue of judicial notice of the no-fault fee schedule was similarly the underlying basis of that matter.

CPLR 4511 (a) states that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state” (emphasis added). As the fee schedule by which the rates of no-fault medical providers is determined is codified in the Official Compilation of Codes, Rules and Regulations of the State of New York, it falls under the purview of this mandate, and is consequently an obligation of this court.{**35 Misc 3d at 73}

The fee schedule utilized in New York State’s no-fault insurance scheme is the same schedule that was originally devised to set fees for medical services provided in conjunction with workers’ compensation claims. The workers’ compensation fee schedule was “incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a])” (LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). Hence, the fee schedule, as it pertains to no-fault claims, is codified as part of the Official Compilation of Codes, Rules and Regulations of the State of New York as a component of Insurance Department Regulations (11 NYCRR) § 68.1 (a).

The New York Court of Appeals has specifically addressed judicial notice as it pertains to New York State regulations. In Matter of New York Assn. of Convenience Stores v Urbach (92 NY2d 204, 214 [1998]), the Court of Appeals found that the repeal of certain regulations by the New York State Tax Department was a development of which the Court “must take judicial notice.”

Both the Third and First Departments have held much the same. In Cruise v New York State Thruway Auth. (28 AD2d 1029, 1030 [1967]), the Appellate Division, Third Department, found that “the [trial] court was required [by CPLR 4511 (a)] to take judicial notice of” certain regulations of the New York State Thruway Authority. In Chanler v Manocherian (151 AD2d 432, 433 [1989]), the Appellate Division, First Department, held that, under CPLR 4511 (a), “[t]he refusal to take judicial notice of pertinent laws and regulations constitutes reversible error” (citing Howard Stores Corp. v Pope, 1 NY2d 110 [1956]).

The essential principle underlying these decisions is that a court has an inherent obligation to know the laws which it is charged with applying, much the same as a judge would charge a jury on the law at the close of evidence. Indeed, in discussing the role of judicial notice in the application of laws, the American Jurisprudence Proof of Facts states that “[t]he exercise of [*4]such power is so much taken for granted, that the specific term ‘judicial notice’ is not generally associated with it, though technically it could well be applied,” as “[a] court has inherent power to know the domestic law of its own jurisdiction, both statutory and case law” (60 Am Jur Proof of Facts 3d 175, § 3).

This long-entrenched reluctance of courts to take judicial notice of codified laws and regulations is illustrated in some aged opinions of appellate courts in our sister states: “[i]nferior {**35 Misc 3d at 74}courts are required to know the local regulations, municipal ordinances and town by-laws which it is their duty to administer” (Strain v Isaacs, 59 Ohio App 495, 514, 18 NE2d 816, 825 [1938]); “[t]he court is bound to take notice of the law” (Randall v Commonwealth of Virginia, 183 Va 182, 186, 31 SE2d 571, 572 [1944]). Both cases remain good law in their respective jurisdictions and continue to inform as to the proper role of judicial notice.

More recently, in Getty Petroleum Mktg., Inc. v Capital Term. Co. (391 F3d 312, 322 [2004]), Judge Lipez of the United States Court of Appeals for the First Circuit wrote in a concurring opinion:

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.”

In light of the above-discussed precedent and the tangential connection between the formal practice of judicial notice and the recognition of codified laws and regulations, I can see no reason why this court should not take notice, judicial or otherwise, of the fee schedule. The fee schedule has been made part of the law of New York (see LVOV Acupuncture, P.C., 2011 NY Slip Op 51721[U]).

An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.{**35 Misc 3d at 75}

Pesce, P.J., and Steinhardt, J., concur; Golia, J., dissents in part and concurs in part in a separate memorandum.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 28, 2011

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 September 28, 2010. The order granted the motion of defendant Alicia A. Jackson to vacate a default judgment insofar as entered against her.

ORDERED that the order is reversed, without costs, and defendant Alicia A. Jackson’s motion to vacate the default judgment insofar as entered against her is denied.

Allstate Insurance Company, as subrogee of Joon Nam Kim and Kyu Nam Chae, brought this action against Alicia A. Jackson and Kevin D. Hudson, respectively the alleged owner and operator of a vehicle which, plaintiff claimed, was negligently operated, causing plaintiff’s subrogors to sustain serious injuries in an accident on October 17, 2006. As a result of the accident, plaintiff had to pay its subrogors for uninsured and no-fault benefits. After a default [*2]judgment was entered against defendant Hudson for failure to appear or answer, and against defendant Jackson for failure to appear at trial, Jackson moved, pro se, to vacate the default judgment insofar as entered against her. In her moving papers, Jackson asserted that she had a good defense because she “was not driving the car” at the time of the accident. The Civil Court granted Jackson’s motion.

A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and that she has a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Vehicle and Traffic Law § 388 places responsibility for harm resulting from the operation of a motor vehicle on the owner of the vehicle. Although the Court of Appeals has interpreted the statute as creating a rebuttable presumption that the driver of the vehicle operated it with the permission of the owner (Murdza v Zimmerman, 99 NY2d 375, 379-380 [2003]), Jackson failed to offer any evidence to rebut the presumption that Hudson drove the vehicle with her consent. Jackson’s mere assertion that she was not driving the vehicle at the time of the accident did not constitute a meritorious defense to the action (Traore v Nelson, 277 AD2d 443 [2000]). In view of the foregoing, we need not reach the issue of whether Jackson offered a reasonable excuse for her default. Accordingly, the order is reversed and defendant Jackson’s motion to vacate the default judgment insofar as entered against her is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2011

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, Second District (Michael A. Ciaffa, J.), dated July 7, 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.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claim on the ground of lack of medical necessity (see Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affirmed report of defendant’s peer reviewer set forth a sufficient medical rationale and factual [*2]basis to demonstrate a lack of medical necessity for the services at issue (see 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]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

In opposition to defendant’s motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (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]; 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.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: December 23, 2011