[*1]

Civil Court of the City New York, Queens County, October 6, 2011

APPEARANCES OF COUNSEL

Lewin, Goodman & Baglio, LLP, Melville (Brendan Kearns of counsel), for plaintiff. Rossillo & Licata, P.C., Westbury (Susan Schenck of counsel), for defendant.

{**34 Misc 3d at 377} OPINION OF THE COURT

Carmen R. Velasquez, J.

A bench trial was held before this court on August 19, 2011 in this action by the plaintiff to recover no-fault benefits for chiropractic services provided to Dana Schepanski. At the trial, Dr. Daniel Sposta, D.C., testified on behalf of the defendant and the plaintiff, Dr. John Kraft, D.C., testified on his own behalf. The parties also stipulated to the admission of the peer review report and underlying medical documents. After reviewing and assessing all of the evidence, including the testimony of the witnesses and the exhibits introduced by the parties, the court renders the following decision:

Plaintiff, Dr. John Kraft, D.C., as assignee of Dana Schepanski, seeks payment for chiropractic services, consisting of manipulation under anesthesia of the spine and hips, provided on July 28, 2009. At trial the parties stipulated to plaintiff’s prima facie case of no-fault entitlement and to the timeliness and propriety of defendant’s denial of the claims that are the basis of this action. The parties further stipulated that the sole issue to be determined by this court was the medical necessity of the chiropractic manipulation under anesthesia (MUA) performed by plaintiff.

Plaintiff’s assignor, Dana Schepanski, had been involved in a motor vehicle accident on October 28, 2008, which left her with headaches, neck pain radiating to the shoulders and lower back pain radiating to the left buttocks and hip region. After several months of chiropractic care, physical therapy and pain medication, assignor’s progress had plateaued. Medical progress notes dated from November 2008 to January 2009 consistently denoted her functional status as no greater than fair with continuing pain, spasms and tightness. On January 28, 2009, plaintiff, as co-surgeon, performed five manipulations of the assignor’s spine and hip joints while she was under anesthesia. On March 27, 2009, defendant, State Farm Mutual Automobile Ins. Co., denied payment of all services rendered by plaintiff on January 28, 2009.

Although the parties stipulated that the only issue before this court was the medical necessity of the disputed services, the defendant, both at trial and in the explanation of review, contended that an MUA performed on the hip joint is outside the scope of chiropractic service. Also raised, tangentially, was the frequently encountered contention that a chiropractor is not authorized to perform MUA procedures.{**34 Misc 3d at 378}

[*2]Whether manipulation under anesthesia is a procedure exceeding the scope of lawful chiropractic service is not an issue of first impression for this court. In an unpublished decision, dated July 23, 2010, this court found that chiropractors were authorized to perform manipulations of the spine under anesthesia and awarded judgment to the chiropractor who performed the manipulations and to the chiropractor who assisted him (Lezamiz v Nationwide Mut. Ins. Co., index No. CV-021277/08; Palumbo v Nationwide Mut. Ins. Co., index No. CV-035624/08). The New York State Workers’ Compensation Board, which supplies the fee structure by which the procedures at issue are to be compensated, has also consistently authorized chiropractors to perform manipulations under anesthesia (Employer: Solomon Schecter Day School, 2006 WL 3889159, 2006 NY Wrk Comp LEXIS 11146 [WCB No. 2040 8277]; Employer: Eckerd Drugs, 2008 WL 922458, 2008 NY Wrk Comp LEXIS 2647 [WCB No. 4060 1307]; Employer: Aramak, 2009 WL 456874, 2009 NY Wrk Comp 535411 [WCB No. 0053 5411]; see also John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 29 Misc 3d 367 [Civ Ct, Kings County 2010]).

The relevant statute, Education Law § 6551 (1), provides that

“The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion, 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.”

In light of its unambiguous language, the statute must be given its literal meaning (see Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 418 [1995]; Roth v Michelson, 55 NY2d 278, 283 [1982]). Nothing in the language of this statute, which defines chiropractic practice, suggests that lawful manipulations performed by chiropractors on conscious patients become unlawful once those patients are sedated. However, another subdivision of the Education Law provides that the holder of a chiropractic license is not permitted “to prescribe, administer, dispense or use in his practice drugs or medicines.” (Education Law § 6551 [3].) Nevertheless, as the State Education Department has acknowledged in a letter dated September 18, 2007, the Education Law does not prohibit a chiropractor from{**34 Misc 3d at 379} performing spinal manipulations on patients who are under anesthesia, although the chiropractor cannot administer the anesthesia. Therefore, manipulation under anesthesia is within the lawful scope of chiropractic services provided that, as in this case, the anesthesia utilized for the procedure is administered by a licensed professional and not by the chiropractor.

Defendant’s claim that Education Law § 6551 (1) does not permit the holder of a chiropractic license to treat a hip joint lacks merit. The statute limits the purpose of chiropractic treatment but not its scope. It allows treatment of the “human body,” without qualifying the term “human body” so as to preclude treatment of a particular part thereof. The only requirement is that the purpose of treatment be the removal of nerve interference and its effects resulting from or related to “distortion, misalignment or subluxation of or in the vertebral column.” Thus chiropractors licensed in the State of New York may treat any part of the human body, including the hip joint, provided that treatment is for the purpose stated in Education Law § 6551 (1). In fact, the New York State Workers’ Compensation Board has specifically authorized a chiropractor to perform manipulation of the bilateral hip areas under anesthesia, when the stated purpose was to break up fibrous adhesions and [*3]scar tissue that had formed on and around the claimant’s spinal column (Employer: Aramak, 2009 WL 456874, 2009 NY Wrk Comp 535411).

The defendant does not contend and has introduced no evidence that the MUA of the hip joints conducted on plaintiff’s assignor was for a purpose other than alleviating nerve interference related to the vertebral column. The medical records of plaintiff’s assignor indicate she had back pain, which radiated to the hip area, and the diagnosis codes in the explanation of review include closed dislocation of the sacrum. The sacrum is the segment of the vertebral column that articulates the hip bone on either side (Stedman’s Medical Dictionary [26th ed], sacrum at 1566). Therefore, based on the trial evidence, the court finds that the MUA of the hip joints performed by the plaintiff was related to the vertebral column and within the scope of lawful chiropractic practice as defined in the Education Law.

In support of the lack of medical necessity defense, defendant’s witness, Dr. Sposta, testified that plaintiff failed to meet three requirements: (1) chiropractic patients must seek a second opinion before undergoing an MUA procedure; (2) a chiropractor co-surgeon prior to performing an MUA must review the{**34 Misc 3d at 380} patient’s medical records; (3) pursuant to protocols established by the National Academy of MUA Physicians (NAMUA), MUA is only appropriate where conventional manipulation could not be performed due to pain, apprehension, muscle contraction or muscle splinting.

Dr. Sposta cited no authority to support his contention that a second opinion is necessary before an MUA procedure is performed on a chiropractic patient. As Dr. Kraft testified, the New York State Workers’ Compensation Board medical treatment guidelines contain no such requirement. As for plaintiff’s alleged failure to personally review the patient’s medical records prior to the MUA, even if established it would be insufficient, on its own, to rebut the presumption of medical necessity. Finally, while there is no evidence that plaintiff’s assignor was incapable of withstanding conventional manipulation, NAMUA protocol does not limit the availability of the MUA procedure to this criteria. As per NAMUA, patients whose conditions justify MUA include those “whereby manipulation of the spine or other articulations is the treatment of choice, however, due to the extent of the injury mechanism, conservative manipulation has been minimally effective in 2-6 weeks of care and a greater degree of movement of the affected joint(s) is needed.” (NAMUA National Guidelines http://www.namuap.org/mcms/mua/content.cfm?pulldata=scmscontent.cfm & entity_id=8&content_id=180 [accessed Sept. 15, 2011].) The assignor’s treatment prior to the MUA in this case well exceeded such minimum. Her medical records reveal that she was not a surgical candidate and had received several months of conservative care with little to no improvement, thereby justifying the MUA procedures performed by plaintiff.

The court finds that the plaintiff, as a licensed chiropractor, was authorized to perform the disputed manipulations under anesthesia and that the defendant has failed to rebut the presumption of medical necessity of these procedures by a fair preponderance of the credible evidence. Accordingly, verdict in favor of the plaintiff, Dr. John Kraft, D.C., in the amount of $1,594.10 (the agreed disputed amount) with statutory interest, attorney fees, costs and disbursements.

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 January 5, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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

It is undisputed that defendant timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; 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]). The record establishes that plaintiff’s responses to defendant’s verification requests failed to provide the information which defendant had requested, in that plaintiff merely stated that the supplies at issue had been provided pursuant to a doctor’s prescription and did not advise defendant of the name of the doctor who had issued the prescription or where the doctor was located so that defendant could try to obtain the requested information from the prescribing doctor (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]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint as premature should have been granted, as defendant’s time to pay or deny the claim had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). In light of the foregoing, we reach no other issue.

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

Steinhardt, J., dissents in a separate memorandum. [*2]

Steinhardt, J., dissents and votes to affirm the order in the following memorandum:

Although I am in agreement with my learned colleagues regarding the timeliness of the mailings of defendant’s request and follow-up request for verification, I disagree with the outcome arrived at by the majority. The information sought by defendant from plaintiff, i.e., 1) an initial report from the referring physician and 2) a letter of medical necessity from the referring physician, were never within plaintiff supply company’s possession. In clear and concise language, it so advised defendant. Defendant neither revised its verification request nor paid the claim. Based on the outlined scenario, in the majority’s view, the time for defendant to pay or deny the claim would never begin to run and the claim would be premature forever. In my opinion, plaintiff responded to defendant’s request and follow-up request in a timely manner and defendant neither paid nor denied the claim that forms the subject matter of plaintiff’s complaint within 30 days. Consequently, plaintiff is entitled to summary judgment in its favor.
Decision Date: September 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 23, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

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

The nonjury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant’s peer review report into evidence, precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.

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

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 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 (Noach Dear, J.), entered June 30, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary
judgment dismissing the complaint, arguing that it had properly reimbursed plaintiff for the acupuncture services it had rendered, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services as those billed for herein. The Civil Court granted plaintiff’s motion, stating that defendant had failed to submit the applicable fee schedule to the court.

We find that the workers’ compensation fee schedule, which is required by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff did not object to the fee schedule amount set forth by the defense, nor contest the timely denial of the claims, so much of defendant’s motion as sought summary judgment dismissing the complaint as to these claims is granted. [*2]

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $160.56 for the initial acupuncture visit on September 2, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and which denied defendant’s cross motion insofar as it sought summary judgment dismissing the complaint as to this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 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 (Alice Fisher Rubin, J.), entered August 27, 2009. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D
Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on June 27, 2007 (CCA 400). As the six-year statute of limitations for contract actions applies to the claims involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), the statute of limitations bars any claim that accrued prior to June 27, 2001.

In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant’s receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and [*2]must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant’s dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.

As the earliest date defendant could have received the $1,707.97 bill was June 6, 2001 and the earliest date that benefits could have become overdue with respect to this bill was July 7, 2001, we find that defendant failed to meet its burden of establishing, prima facie, that the time in which to sue has expired.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 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 (Diane A. Lebedeff, J.), entered June 30, 2009. The order, insofar as appealed from, in effect, 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. Defendant cross-moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Allegiance Health, Inc. (Allegiance). The Civil Court, in effect, denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit of the chiropractor/acupuncturist who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly [*2]denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of our determination, we need not reach the remaining contentions raised on appeal.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered November 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered November 10, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

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

We have examined plaintiff’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 14, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 20, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 20, 2010, insofar as appealed from, reversed, with $10 costs, defendant’s motion for summary judgment granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2011

[*1]

District Court of Nassau County, First District, September 8, 2011

APPEARANCES OF COUNSEL

Marshall & Marshall, Jericho, for defendant. Friedman, Harfenist, Kraut & Perlstein, Lake Success, for plaintiff.

{**33 Misc 3d at 574} OPINION OF THE COURT

Michael A. Ciaffa, J.

Defendant moves for summary judgment dismissing plaintiff’s no-fault action based upon the reports of its peer review doctor, William A. Ross, M.D. Plaintiff opposes the motion and cross-moves for an order compelling defendant to respond to plaintiff’s outstanding interrogatories and requests for discovery.

The issues presented in this case involve an increasingly common practice by no-fault insurers: moving for summary judgment based upon “naked” peer review reports. The reports in question fail to attach copies of the medical records which purportedly provide the factual basis for the peer doctor’s opinion, contesting the medical necessity of three MRIs. Although a defendant need not necessarily submit those records in order to make a prima facie showing on a lack of medical necessity defense (see Active Imaging, P.C. v Progressive Northeastern Ins. Co., 29 Misc 3d 130[A], 2010 NY Slip Op 51842[U] [App Term, 2d Dept 2010]), the opponent can certainly make use of such records in challenging whether the peer doctor’s opinion has a sufficient “factual basis and medical rationale.” (See 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, Ciaffa, J.].) Before the opponent can do so, however, it must first obtain the records. If the records are not records belonging to the provider suing for payment, the records typically are obtainable through discovery. Insurers can and should provide them routinely, upon request. But as this case illustrates, otherwise “routine” requests for discovery are sometimes ignored for many months, with the absence of production coming to a head only when the insurer seeks to have the plaintiff’s case dismissed upon a motion for summary judgment. [*2]

Plaintiff, here, avers that it sought such discovery from defendant more than a year ago, and that it needs to obtain copies of the medical records referenced in the peer doctor’s reports in order to interpose “complete and proper opposition papers.”{**33 Misc 3d at 575} Since plaintiff is a diagnostic facility, its attorneys state that plaintiff is not in possession of the treating doctors’ records. They assert that defendant’s peer review doctor “relied upon approximately 19 different documents when making his determination.” The documents in question include an initial examination report, and a follow-up report from the nonparty treating doctors. Importantly, the latter records appear to provide the factual predicate for the peer doctor’s opinions that certain MRIs performed by plaintiff lacked medical necessity. Furthermore, it appears that the subject tests were ordered by the treating doctors, not the plaintiff, and that the tests were simply performed by plaintiff in reliance upon the treating doctors’ referrals. Counsel for plaintiff goes on to argue: “Without these records, [plaintiff] is unable to . . . determine whether statements made by Dr. Ross are belied by the underlying medical records, or . . . submit the medical records to its own medical expert in order to obtain a rebuttal affidavit on the issue of medical necessity.”

In the instant case, the facts and circumstances at bar clearly warrant giving plaintiff an opportunity to obtain the underlying records that the peer review doctor reviewed. As permitted by CPLR 3212 (f), the court has discretion to deny a defendant’s motion for summary judgment, or to order a continuance to permit plaintiff to pursue disclosure of underlying medical records, when a defendant moves for summary judgment upon a “naked” peer review report that appears to rely heavily upon the content of such records. (See e.g. Total Equip., LLC v State Farm, Nassau Dist Ct, May 31, 2011, Ciaffa, J., index No. 18745/10; Brownsville Advance Med., P.C. v Maya Ins. Co., Nassau Dist Ct, May 25, 2011, Hirsh, J., index No. 15326/10.)

Based upon the court’s experience deciding countless no-fault summary judgment motions and trials, the court has every reason to believe that allowing discovery of the treating doctors’ medical records might “lead to relevant evidence” that may justify opposition to defendant’s motion. (See CPLR 3212 [f].) The outcome of such matters most often turn upon the persuasiveness of the expert opinions and testimony of peer review doctors, when judged in the context of the underlying medical records. Attorneys practicing in the no-fault field know all too well that attacks upon a peer doctor’s opinion frequently depend upon close analysis of the treating doctors’ medical records. Indeed, as this court noted in Novacare Med. P.C. v Travelers{**33 Misc 3d at 576} Prop. Cas. Ins. Co. (at *5), “[i]f the plaintiff can demonstrate, through references to the medical records . . . , that the peer review doctor’s opinion lacks a sufficient ‘factual basis’ and/or ‘medical rationale’ because . . . it fails to address essential factual issues or is based upon disputed or apparently [*3]incorrect facts,” the defendant’s motion can be defeated without the need to obtain opposing expert proof. (Id.)

However, a plaintiff cannot make such an attack without the underlying medical records. Unlike no-fault matters brought by treating doctors, diagnostic facilities (like plaintiff) typically lack “personal knowledge” of the facts which establish (or contradict) the medical necessity of the tests in issue. Consequently, such diagnostic facilities are presumptively entitled to the benefit of CPLR 3212 (f) on the theory that “facts essential to justify opposition . . . [are] exclusively within the knowledge and control” of the nonparty treating physicians and the defendant’s peer review doctor. (See Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814, 815, 816 [2d Dept 2009] [rejecting argument that summary judgment motion was premature where opposing party “already had personal knowledge of the relevant facts”].)

Finally, unlike the circumstances presented in 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, 2d Dept 2010]), plaintiff’s counsel demonstrated both the need for such discovery, and that plaintiff requested discovery from defendant back in May 2010, long before defendant made the instant summary judgment motion. It is undisputed that defendant failed to respond to plaintiff’s discovery requests when they were made. Although defendant could have belatedly produced the documents in responding to the cross motion, defendant did not do so. Nor did it seek to excuse its inaction when the failure was raised in plaintiff’s cross motion papers. Instead, defendant merely argues that service of its motion gave rise to an automatic stay of disclosure pursuant to CPLR 3214 (b). While defendant is technically correct with respect to the latter point, the same statute allows the court to “order[ ] otherwise.” CPLR 3212 (f) likewise authorizes court-ordered disclosure where it appears from opposing papers that “facts essential to justify opposition may exist but cannot then be stated.” This is such a case.

In conclusion, to move the matter forward, plaintiff’s cross motion is granted to the extent of directing defendant to provide{**33 Misc 3d at 577} plaintiff’s counsel with copies of the reports and documents reviewed by defendant’s peer review doctor within 30 days of the date of this order. Within 30 days thereafter, defendant may re-notice its summary judgment motion, upon proper notice, allowing plaintiff at least 30 days time to oppose. The re-noticed motion, plaintiff’s opposition, and defendant’s reply (if any) can then be heard and determined on the merits.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), dated November 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), dated November 12, 2010, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of the information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]). In support of its motion for summary judgment, defendant established that its initial and follow-up verification letters were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). It being undisputed on the record that plaintiff failed to respond to defendant’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

In opposition, plaintiff’s conclusory denial of receipt of the initial verification letter was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d at 829-830; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1004 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 31, 2011