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 (Margaret Pui Yee Chan, J.), entered October 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing
the complaint and granting plaintiff’s cross motion for summary judgment, arguing that it had properly reimbursed plaintiff the amount to which plaintiff was entitled for the acupuncture services it had rendered, by using the workers’ compensation medical fee schedule.

In support of its motion, defendant submitted an affidavit by an employee of its claims division, which was sufficient to establish that the verification requests and denial of claim forms 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]), but which was insufficient to establish defendant’s contention that the amounts charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule. The applicable portion of the fee schedule was not [*2]annexed to defendant’s papers. While courts are permitted to take judicial notice of the workers’ compensation fee schedule (see LVOV Acupuncture, P.C. v Geico Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]; see also Kingsbrook Jewish Med. Ctr.v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), a party seeking to have the court take judicial notice should provide the court with sufficient information to permit the court to take judicial notice and should advise the adverse party of the request for judicial notice (CPLR 4511 [b]). Inasmuch as that was not done here, we decline to take judicial notice of the workers’ compensation fee schedule in this case. Accordingly, with respect to the acupuncture services rendered by its licensed acupuncturist for the acupuncture sessions from August 7, 2006 through September 21, 2006, the Civil Court properly denied defendant’s motion for summary judgment. Likewise, the Civil Court properly denied defendant’s motion for summary judgment to the extent that it sought dismissal of plaintiff’s claim for the initial acupuncture visit of August 4, 2006, as defendant did not proffer sufficient evidence to warrant the dismissal thereof (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Plaintiff, however, was not entitled to summary judgment on its cross motion, as it failed to establish that there was an untimely denial or that the denial was conclusory, vague or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78AD3d 1168 [2010]). Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 30, 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, Kings County (Sylvia G. Ash, J.), dated January 21, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

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

Defendant demonstrated that it had timely mailed the NF-10 denial of claim forms based upon its standard office practices and procedures (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]). Moreover, defendant’s affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s conclusion that there was a lack of medical necessity for the subject medical supplies. Plaintiff challenges defendant’s peer reviewer’s reliance on various medical records. Some of the records were prepared by plaintiff and, accordingly, plaintiff may not challenge the reliability of those records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). In addition, contrary to plaintiff’s assertion, the fact that defendant’s [*2]peer reviewer took into consideration medical records of other providers in formulating his opinion does not render the peer review report inadmissible (see 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]).

Inasmuch as plaintiff failed to rebut defendant’s showing, defendant was entitled to summary judgment dismissing the complaint (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]). We note that plaintiff’s remaining contentions are either unpreserved or lack merit.

Accordingly, the order is affirmed.

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

Rios, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and RIOS, JJ.
PARSONS MEDICAL SUPPLY, INC.
as Assignee of MARIE JOSEPH,

Appellant,

-against-

NO. 2010-1201 K C

DECIDED
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, [*3]

Respondent.

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant’s motion for summary judgment is denied in the following memorandum:

The affidavit of defendant’s “litigation representative” in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a “pick up” bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant’s motion for summary judgment is denied.

Plaintiff’s cross motion was properly denied. The attorney’s affirmation was insufficient to establish plaintiff’s entitlement to judgment as a matter of law.
Decision Date: November 30, 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, Kings County (Johnny Lee Baynes, J.), entered September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Joseph A. Niemczyk of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain policies of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered May 19, 2010, as, upon reargument, vacated the determination in an order of the same court dated August 19, 2009, denying the plaintiff’s motion for summary judgment on the complaint, and thereupon granted the plaintiff’s motion for summary judgment on the complaint.

Ordered that the order entered May 19, 2010, is modified, on the law, by deleting the provisions thereof, upon reargument, vacating the determination in the order dated August 19, 2009, denying those branches of the plaintiff’s motion which were for summary judgment on the first and third causes of action, and thereupon granting those branches of the motion, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated August 19, 2009, denying those branches of the motion; as so modified, the order entered May 19, 2010, is affirmed insofar as appealed from, without costs or disbursements.

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]). No-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, including verification of all relevant information requested (see 11 NYCRR 65-3.5, 65-3.8 [a]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]).

With respect to the first cause of action, in which the plaintiff sought benefits as assignee of Gregoria Young, the plaintiff made a prima facie showing that it had mailed the prescribed statutory billing form to the defendant, and did not receive payment within the requisite 30-day period. In opposition to that showing, however, the defendant insurer submitted proof that it timely issued a denial of this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendant failed to timely pay or deny the claim, the Supreme Court, upon [*2]reargument, should have adhered to its prior determination denying summary judgment to the plaintiff on this cause of action without regard to the merits of the defendant’s denial of the claim (see Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 [2d Dept 2011]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]).

With respect to the second cause of action, in which the plaintiff sought benefits as assignee of Loicyra Bulado, also known as Loicyra Almeda, the plaintiff offered proof that it had mailed the prescribed statutory billing form and did not receive payment therefor within 30 days after complying with the defendant’s verification requests (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In opposition thereto, the defendant failed to raise a triable issue of fact. Accordingly, upon reargument, the plaintiff was properly awarded summary judgment on the second cause of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

With respect to the third cause of action, in which the plaintiff sought benefits as assignee of Anthony Prunella, the plaintiff submitted proof that it did not receive payment of its claim within 30 days after submission thereof to the defendant. However, in opposition thereto, the defendant established that it timely requested verification of this claim, and that it paid the claim within 30 days after receipt of the requested verification (see 11 NYCRR 65-3.5 [b]; see also New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]). Accordingly, upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of the plaintiff’s motion which was for summary judgment on the third cause of action. Prudenti, P.J., Skelos, Balkin and Sgroi, JJ., concur.

—[*1] The Zuppa Firm PLLC, Brooklyn, N.Y. (Raymond J. Zuppa of counsel), for appellants.

McDonnell & Adels, PLLC, Garden City, N.Y. (Rivkin Radler LLP [Evan H. Krinick, Cheryl F. Korman, Barry I. Levy, and Stuart M. Bodoff], of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2010, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action seeking, among other things, a judgment declaring that it had no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C. (hereinafter collectively the professional corporation defendants). The first cause of action sought a judgment declaring that the professional corporation defendants were unlawfully incorporated and, thus, ineligible to collect or recover no-fault benefits. The second cause of action sought a judgment declaring that the services provided by the professional corporation defendants were performed by independent contractors or other nonemployees, and that the professional corporations were, therefore, not entitled to collect or recover no-fault benefits.

The professional corporation defendants, along with the defendants Valentina Anikeyeva and Andrey Anikeyev (hereinafter collectively the defendants), moved, among other things, pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to [*2]state a cause of action. In an order entered September 3, 2010, the Supreme Court, inter alia, denied those branches of the defendants’ motion. We affirm the order insofar as appealed from.

“In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1162 [2011] [internal quotation marks omitted]).

“A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see Rockland Light & Power Co. v City of New York, 289 NY 45, 51 [1942]; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011]; Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1969]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3001.13).

Accordingly, where a cause of action is sufficient to invoke the court’s power to “render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy” (CPLR 3001; see 3017 [b]), a motion to dismiss that cause of action should be denied (see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]; Rockland Light & Power Co. v City of New York, 289 NY at 51; Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d at 1150; Staver Co. v Skrobisch, 144 AD2d at 450; Ackert v Union Pac. R. R. Co., 4 AD2d 819, 821 [1957]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac ¶ 3001.13).

Here, contrary to the defendants’ contention, the allegations in the first and second causes of action presented justiciable controversies sufficient to invoke the Supreme Court’s power to render a declaratory judgment (see CPLR 3001; Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587 [2009]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 71 [2008]).

The defendants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were to dismiss the first and second causes of action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Mastro, J.P., Dillon, Cohen and Miller, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see 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]; see also 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]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover payment of no fault benefits under a policy of automobile insurance, the plaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is affirmed, with costs.

Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff’s additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

[*1]

District Court of Nassau County, First District, November 9, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty for defendant. Friedman, Harfenist, Kraut & Perlstein for plaintiff.

{**34 Misc 3d at 296} OPINION OF THE COURT

Fred J. Hirsh, J.

Defendant moves for summary judgment. Plaintiff cross-moves to compel discovery.

Background

Plaintiff Total Equipment, LLC (Total) sues as assignee of Latasha James (James) to recover first-party no-fault benefits for durable medical equipment provided to James.

Defendant asserts it is entitled to summary judgment because it timely denied the claim on the ground the medical equipment provided to James was not medically necessary based upon the peer review report of Ronald A. Csillag, D.C.

Dr. Csillag reviewed and relied upon medical reports and records, no-fault claim forms and a police accident report outlined in his report in preparing his peer review report. None of the reports or records Dr. Csillag relied upon in preparing his peer review report have been provided to the court. Dr. Csillag specifically relied upon the information [*2]contained in the medical reports and records he reviewed including James’s complaints, the diagnoses made and the treatment provided as the factual basis for his opinion that the medical equipment supplied was not medically necessary.

Plaintiff cross-moves to compel defendant to comply with its discovery demands. Plaintiff seeks to obtain copies of the medical reports and records reviewed by Dr. Csillag in preparing his peer review. Plaintiff claims that it needs these reports and records to determine whether the factual assertions made in Dr. Csillag’s peer review report are accurate and to have those records and reports reviewed by a chiropractor or other appropriate health care professional so it can possibly obtain an affidavit establishing the medical necessity of the medical equipment Total provided to James.

Discussion

Defendant establishes a prima facie entitlement to judgment as a matter of law by establishing the timely mailing of a denial and the submission of an affirmed or sworn-to peer review which sets forth a factual basis and a medical rationale for the peer reviewer’s conclusion the treatment, testing, and medical equipment were not medically necessary. (Mosad Med., P.C. v Praetorian Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op{**34 Misc 3d at 297} 51876[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Neomy Med., P.C. v GEICO Ins. Co., 32 Misc 3d 137[A], 2011 NY Slip Op 51532[U] [App Term, 2d, 11th & 13th Jud Dists 2011].)

If the defendant tenders such proof, the plaintiff must submit an affidavit from a health care provider that meaningfully refers to and rebuts the conclusions contained in the peer review report. (Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50189[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Vincent Med. Servs., P.C. v GEICO Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52153[U] [App Term, 2d, 11th & 13th Jud Dists 2010].)

CPLR 3212 (f) permits the court to deny a motion for summary judgment if facts essential to justify opposition may exist but cannot be stated. A motion for summary judgment must be denied where the party opposing the motion has not had a reasonable opportunity to conduct discovery before the motion was made. (James v Aircraft Serv. Intl. Group, 84 AD3d 1026 [2d Dept 2011].)

A party opposing a motion for summary judgment based upon the need for additional discovery must establish the additional discovery might lead to relevant evidence or facts essential to the opposition are within the exclusive control of the defendant. (Davis v Rochdale Vil., Inc., 83 AD3d 991 [2d Dept 2011].)

In this case, the plaintiff has established that it has not had a meaningful opportunity to conduct and obtain discovery. Plaintiff served a demand for interrogatories and a document demand upon defendant on March 16, 2011. Defendant did not respond or object to either the demand for interrogatories or the document demand. Rather than responding to plaintiff’s discovery demands, defendant moved for summary judgment.

One of the items demanded in plaintiff’s document demand is the no-fault file. The defendant’s no-fault file should contain the medical reports and records Dr. Csillag reviewed in preparing the peer review report. The no-fault file may also contain other medical reports and records not reviewed by Dr. Csillag. This material is exclusively in the possession of the defendant.

These medical reports when reviewed by another health care professional might provide plaintiff with the information needed to oppose defendant’s summary judgment [*3]motion by providing an affidavit or affirmation from a health care provider that meaningfully refers to and rebuts the opinions expressed and conclusion reached by the peer reviewer. Plaintiff could also use{**34 Misc 3d at 298} the information contained in the no-fault file to establish there are errors or shortcomings in the peer review report. (Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 31 Misc 3d 1205[A], 2011 NY Slip Op 50500[U] [Nassau Dist Ct 2011].)

This motion raises significant questions regarding the proof a defendant must present to the court when moving for summary judgment in an action brought to recover first-party no-fault benefits where the motion is based upon a peer review report that found the treatment provided, the testing performed or the medical supplies furnished were not medically necessary. More specifically, this motion raises issues regarding the factual basis for the peer reviewer’s medical rationale.

Dr. Csillag, the peer reviewer, submitted a sworn-to peer review report that states he reviewed various medical reports and records and the prescription for durable medical equipment in issue. He summarizes the medical findings contained in those reports and records including the diagnoses of injuries sustained by James. Based upon these facts, Dr. Csillag offers his opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained. Praetorian denied plaintiff’s claim based upon Dr. Csillag’s opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained.

The court was not provided with any of the material Dr. Csillag reviewed because the medical reports and records and other material reviewed by the peer review doctor “are not part of defendant’s prima facie showing.” (Active Imaging, P.C. v Progressive Northeastern Ins. Co., 29 Misc 3d 130[A], 2010 NY Slip Op 51842[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2010].)

A party moving for summary judgment must tender evidentiary proof in admissible form establishing an entitlement to judgment as a matter of law. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980].)

A no-fault insurance carrier is required to pay all necessary medical expenses incurred by a party injured in a motor vehicle accident, “provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses{**34 Misc 3d at 299} may be incurred as a result of the injury” (Insurance Law § 5102 [a] [1] [iv]).^[FN1]

The term “necessary [medical] expenses” is not defined by the Insurance Law (article 51) or the no-fault regulations (11 NYCRR part 65).

The courts have struggled to find a workable definition of the term “medical necessity.” (See CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608, 615 [Civ Ct, Kings County 2004].)

While the term medically necessary is regularly used in the appellate decisions involving actions to recover first-party no-fault benefits, the appellate courts have never provided a definition for this term. Thus, the most workable definition of medical necessity is those practices that are in accordance with generally accepted medical standards. (Id.) [*4]

In this case in order to determine if the medical supplies and equipment provided to James by Total were medically necessary, the court must determine whether a reasonably prudent chiropractor would under similar circumstances have prescribed these medical devices for James. (Taormina v Goodman, 63 AD2d 1018 [2d Dept 1978].)

In order to obtain summary judgment based upon a peer review report that finds the treatment, testing and/or medical supplies were not medically necessary, the defendant insurer must provide the court with a sworn or affirmed peer review report establishing a factual basis and a medical rationale for the conclusion that the treatment, testing and/or supplies were not medically necessary. (Alfa Med. Supplies, Inc. v Auto One Ins. Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51851[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; MSSA Corp. v Redland Ins. Co., 32 Misc 3d 141[A], 2011 NY Slip Op 51606[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 150[A], 2011 NY Slip Op 51119[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010].)

The first issue the court must confront when deciding a motion for summary judgment based upon a peer review is the “factual basis” of the peer reviewer’s factual basis.{**34 Misc 3d at 300}

The peer reviewer does not have first hand or personal knowledge of the injured party’s complaints, injuries and/or treatment. The peer reviewer has not examined or spoken to the injured party. The peer reviewer’s knowledge of the injured party’s complaints, injuries and treatment is based upon the information contained in the medical reports and records and other documents provided by the insurer.

All of this material and the information reviewed by the peer reviewer and upon which the peer reviewer based his or her conclusion is inadmissible hearsay. (Prince, Richardson on Evidence § 8-101 [Farrell 11th ed].)^[FN2]

The no-fault claim form and the material submitted by the assignee are not admissible in evidence unless the party seeking their admission into evidence establishes the documents are business records. (Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2d Dept 2008]; New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011].) Medical records of the other health care professionals reviewed by the peer reviewer would be admissible in evidence if the party seeking their admission establishes the documents are business records. (Wilson v Bodian, 130 AD2d 221 [2d Dept 1987].)

Reports of health care providers prepared for litigation are not admissible in evidence. (Id.; Carter v Rivera, 24 Misc 3d 920 [Sup Ct, Kings County 2009].)

What constitutes good and accepted chiropractic practice is generally beyond the knowledge of the average layperson. (De Long v County of Erie, 60 NY2d 296 [1983]; CityWide Social Work & Psychological Servs. v Travelers Indem. Co., supra.) The court must rely upon the opinion expressed by the peer reviewer to determine whether the services in question are medically necessary. [*5]

Before an expert witness is permitted to offer an opinion, the witness must be qualified as an expert. (Price v New York City Hous. Auth., 92 NY2d 553 [1998]; Caprara v Chrysler Corp., 52 NY2d 114 [1981], rearg denied 52 NY2d 1073 [1981]; Meiselman v Crown Hgts. Hosp., 285 NY 389 [1941].) To qualify as an expert, the witness must possess “the requisite skill, training,{**34 Misc 3d at 301} education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” (Matott v Ward, 48 NY2d 455, 459 [1979] [citations omitted]; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517 [2d Dept 2007].) Therefore, before the court can consider the opinion, the party whose opinion is being relied upon must be qualified as an expert. (Machac v Anderson, 261 AD2d 811 [3d Dept 1999].) Simply stating one is a licensed professional is not sufficient to establish the peer reviewer is an expert. (See Mustello v Berg, 44 AD3d 1018 [2d Dept 2007]; Postlethwaite v United Health Servs. Hosps., 5 AD3d 892 [3d Dept 2004].) In this case, defendant offered no evidence qualifying Dr. Csillag as an expert.

An opinion must be based upon facts in the record or facts personally known to the witness. (Prince, Richardson on Evidence § 7-308 [Farrell 11th ed].) “An expert may not reach a conclusion by assuming material facts not supported by the evidence and may not guess or speculate in drawing a conclusion (Interstate Cigar Co. v Dynaire Corp., supra, at 700).” (Nyon Sook Lee v Shields, 188 AD2d 637, 639 [2d Dept 1992].) The court questions how it can determine the validity of the peer reviewer’s medical rationale since it is based upon material not in the record and material that would be inadmissible at trial as hearsay. (See 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].) The peer reviewer is not using the medical records reviewed in preparing a peer review for the truth of the material contained in those records.

A peer reviewer may use this material to render an opinion provided it is professionally reliable, meaning that it is the type of material “accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw, 292 AD2d 84, 87 [2d Dept 2002].) Nothing in the peer review report submitted in this matter establishes the material relied upon by the peer reviewer was material generally accepted in the profession as a basis for forming an opinion or the out-of-court material is accompanied by evidence establishing its reliability.

If the peer review report is based solely upon material that would be inadmissible as hearsay, then the peer review report does not have a factual basis based upon evidentiary material in admissible form. If the peer reviewer is relying upon this hearsay material for his or her medical rationale, then the{**34 Misc 3d at 302} opinion contained in the peer review report cannot be the basis for a grant of summary judgment because it is not based upon facts contained in the record.

Plaintiff cannot determine without those medical reports and records whether the peer review report accurately presents the nature and extent of the claimant’s injuries or treatment without reviewing those records. Without giving the plaintiff the opportunity to obtain and review the full no-fault file, the court cannot determine whether there is material available that would contradict or question the peer reviewer’s opinion. (See Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., supra.)

Accordingly, defendant’s motion for summary judgment is denied without prejudice [*6]with leave to renew upon the completion of discovery. Plaintiff’s cross motion to compel defendant to comply with its discovery demands is granted. Defendant shall serve answers to plaintiff’s demand for interrogatories and shall serve a response to plaintiff’s document demand within 45 days of service of a copy of this order with notice of entry.

Footnotes

Footnote 1: An insurer is not required to pay no-fault benefits if the motor vehicle is not required to carry insurance or if the accident arises from the use and operation of a motorcycle. (Insurance Law § 5102 [f].)

Footnote 2: Hearsay issues do not generally arise at trial since the attorneys for the parties generally stipulate to the admissibility of the peer review report and the medical reports and records reviewed by peer reviewer.

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 (Alice Fisher Rubin, J.), entered April 29, 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, among other things, a sworn peer review report which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that such services were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, 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]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 (Rudolph E. Greco, Jr., J.), entered April 14, 2010. 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 affirmed, without costs.

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

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see 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]), the affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. 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 order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011