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

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