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 (Fred J. Hirsh, J.), dated December 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that
he had failed to appear for an independent medical examination (IME). The District Court denied defendant’s motion, and defendant appeals.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of an employee of Alternative Consulting and Examinations (ACE), which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; 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]). Defendant also submitted an affidavit of the doctor who was to perform the IMEs, which established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., [*2]35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

We note that, contrary to the finding of the District Court, while Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) states that a no-fault insurer must base its request for an examination under oath upon “the application of objective standards so that there is specific objective justification supporting the use of such examination,” it does not impose such a standard on a request for an IME.

As the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant’s motion for summary judgment dismissing the complaint is granted.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 06, 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, Richmond County (Kim Dollard, J.), entered December 17, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by personally serving defendant via mail pursuant to CPLR 312-a. Thereafter, defendant moved to dismiss the complaint on the ground that process had not been properly served. In its moving papers, defendant asserted that since it had not signed the acknowledgment of receipt of the summons and complaint and returned it to plaintiff within 30 days of receiving it, plaintiff was required to serve defendant in another manner and had failed to do so. In opposition to the motion, plaintiff’s attorney stated, among other things, that defendant should be compelled to sign the acknowledgment of receipt of the summons and complaint. The Civil Court denied defendant’s motion.

Since defendant did not sign and return the acknowledgment of receipt of the summons and complaint, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]). Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: April 05, 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 February 19, 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, the Civil Court denied plaintiff’s motion for summary judgment, as well as defendant’s cross motion for summary judgment dismissing the complaint, finding that “issues of fact remain for trial as to the propriety of the defendant’s denials and plaintiff’s purported failure to appear for an EUO.” This appeal by defendant ensued from so much of the order as denied its cross motion.

Defendant denied all of the claims at issue on the ground that the assignors had failed to attend scheduled examinations under oath (EUOs). In order for defendant to make a prima facie showing of its entitlement to summary judgment based on the assignors’ failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignors failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In support of its cross motion, defendant submitted the affirmation of an attorney employed by the law office that defendant hired to schedule and conduct the EUOs. This affirmation, however, failed to establish a prima facie showing since it did not describe the law [*2]office’s standard practices and procedures used to ensure that the verification requests were properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co. 286 AD2d 679 [2001]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U]). Consequently, the Civil Court properly denied defendant’s cross motion for summary judgment. Accordingly, the order is affirmed insofar as appealed from.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: April 05, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated June 10, 2010, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), dated June 10, 2010, reversed, without costs, motion denied and complaint reinstated.

Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a “financial relationship” with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.

Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a “financial relationship” with the health care provider (Public Health Law § 238-a[1][a]). A “financial relationship” is defined in section 238(3) of the Public Health Law as “an ownership interest, investment interest or compensation arrangement.” Critically, a “compensation arrangement” means “any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider” (Public Health Law § 238-a[5][a]), but does not include “payments for the rental or lease of office space” if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).

The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any “financial relationship” between plaintiff and the referring practitioner. No allegation is made that there was any “ownership interest” or “investment interest” between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant’s limited submission failed to establish that there was any “compensation arrangement” in general or any “payments for the rental or lease of office space” in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 5, 2008, which denied their motion for summary judgment in the principal sum of $9,902.18.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 5, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $6,902.18, and plaintiff Devonshire Surgical Facility in the principal sum of $3,000. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 05, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant’s documentary submissions established its receipt of plaintiffs’ claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs’ motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011

[*1]

Supreme Court, Appellate Term, Second Department, April 5, 2011

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**32 Misc 3d at 18} OPINION OF THE COURT

Memorandum.

Ordered that the order is modified by providing that the branches of defendant’s motion seeking to dismiss the $540 claim (dates of service Feb. 1, 2001-Feb. 26, 2001), the $630 claim (dates of service Mar. 2, 2001-Mar. 31, 2001), and the $540 claim (dates of service Apr. 3, 2001-Apr. 24, 2001) are 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 moved, by order to show cause, to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations. The Civil Court granted the motion, and this appeal by plaintiff ensued.

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 August 29, 2007 (CCA 400) and not, as defendant alternatively claims, on August 3, 2007 (the date of the summons and complaint) or on November 28, 2007 (the date of service on the New York State Department of Insurance). The parties agree that the six-year statute of limitations for contract actions is applicable to the instant case (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). Consequently, the statute of limitations bars any claim that accrued prior to [*2]August 29, 2001.

In order to make its prima facie showing, defendant was required, inter alia, to establish the date when the cause of action{**32 Misc 3d at 19} accrued (see Swift v New York Med. Coll., 25 AD3d 686 [2006]), i.e., when plaintiff possessed “a legal right to demand payment” (Matter of Prote Contr. Co. v Board of Educ. of City of N. Y., 198 AD2d 418, 420 [1993]). In the no-fault context, the 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]).

Upon a motion to dismiss pursuant to CPLR 3211 (a) (5), a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815; Sabadie v Burke, 47 AD3d 913 [2008]). While plaintiff did not explicitly set forth in its complaint the date when each claim form was submitted or when each claim sought therein accrued, it averred that the accident occurred “on or about October 23, 2000,” that the claim forms in question were “timely submitted to the Defendant,” and that defendant “did not timely deny” the claims “nor did it timely request verification.” In moving to dismiss, defendant argued that even if all of plaintiff’s assertions are true, the action is untimely.

Defendant was required to “either pay or deny the claims in whole or in part” within 30 days after the claim forms were received (see former Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3]).

There are, therefore, two methods to compute the accrual date in the case at bar: the first is measured, in part, from the last date on which written notice of the accident must be given to the insurer, and the second is measured, in part, from the date the services were rendered. Since the accident occurred on or about October 23, 2000, and the action was commenced on August 29, 2007, it is clear that plaintiff does not benefit by using the first computation method.

Using the second computation method to ultimately arrive at the accrual dates, the calculations begin by determining when, at the latest, a claim form was required to be submitted for each service rendered. We note that the dates of the services for which plaintiff sought reimbursement ranged from October 27, 2000 through April 24, 2001. Plaintiff had 180 days from the date each service was rendered to timely submit a claim seeking reimbursement therefor, and defendant had 30 days from its receipt to either pay or deny such claim. Consequently, accepting the truth of plaintiff’s allegations that it timely submitted{**32 Misc 3d at 20} the claims and that defendant did not timely deny them, the accrual date, or the date that payment of no-fault benefits became overdue for each service for which reimbursement was sought, was, at the very latest, 210 days after each service was rendered, and plaintiff was required to bring its action within six years thereafter (CPLR 213 [2]). Accordingly, since this action was commenced on August 29, 2007, plaintiff was barred from seeking reimbursement for services rendered more than six years and 210 days prior to August 29, 2007. Upon a review of the complaint, we find that, while defendant’s motion to dismiss was properly granted as to the earlier claims, defendant did not meet its initial burden of demonstrating that the action was untimely with respect to the March 8, 2001 claim for $540 (dates of service Feb. 1, 2001-Feb. 26, 2001), the April 6, 2001 claim for $630 (dates of service Mar. 2, 2001-Mar. 31, 2001), and the May 8, 2001 claim for $540 (dates of service Apr. 3, 2001-Apr. 24, 2001). Although the dissenting Justice points to the fact that some of the claim [*3]forms submitted to defendant were “date stamped” as having been received by defendant’s claims management company on a certain date, and that such date should therefore represent the date from which the accrual of the cause of action could be computed, in the absence of an affidavit of defendant’s claims representative or of someone with personal knowledge of defendant’s standard practice and procedure explaining when and by whom such documents were date-stamped, we are not inclined to state definitively that a particular claim form was actually received by defendant on the date stamped and that such date would therefore represent the date from which to measure the accrual date. While under some circumstances, a date stamped on a document might be used to contradict the assertions made by a party offering such document, under the circumstances presented herein, we find no basis, as the dissenting Justice apparently does, to give defendant movant the benefit of using the date stamped on the documents in question in order to bolster defendant’s position. Indeed, a party could readily backdate any document to give the impression that is was received on a certain date were we not to require said party to attest to the underlying facts surrounding the stamping of the document. Furthermore, even if we were to consider such stamped document as indicative of the date of its receipt, we note that there is no date stamped on the March 8, 2001 claim for $540 (dates of service Feb. 1, 2001-Feb. 26, 2001). Accordingly, in our opinion, the order should be modified to the extent indicated.{**32 Misc 3d at 21}

We note that plaintiff’s argument that it was error for defendant to proceed by way of an order to show cause and for the Civil Court to sign the order to show cause is without merit. Nor is there merit to plaintiff’s contention that defendant failed to lay a proper foundation for the exhibits attached to its motion papers, since it was proper for defense counsel to use his affirmation as the vehicle for the submission of the annexed documents in support of the relief requested (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).

Golia, J. (dissenting in part and concurring in part and voting to affirm the order of the Civil Court in the following memorandum). While I agree with the majority in its determination that the Civil Court properly granted the branch of defendant’s motion seeking to dismiss the claims submitted by plaintiff which were dated from November 3, 2000 through February 9, 2001, I disagree with the majority in denying the branch of defendant’s motion seeking to dismiss the remaining claims submitted by plaintiff which were dated March 8, 2001, April 6, 2001 and May 8, 2001. My disagreement with the majority centers on the methodology it employed in analyzing this case. A recitation of the facts is necessary in order to understand how the majority reached its decision as well as why I dissent from the majority’s determination that dismissal of the aforementioned claims was not warranted.

The assignor, Mr. Ramirez, was injured in an auto accident on or about October 23, 2000. He was treated by plaintiff medical provider on numerous occasions from October 27, 2000 through April 24, 2001. Incidental to these treatments, plaintiff generated seven separate claim forms, with each claim form demanding payment for several dates of treatment. Each of these claim forms was dated after each month’s course of treatment and listed that month’s treatment on the form. For example, the earliest form was dated November 3, 2000, and contained a list of treatments dated October 27, 2000, October 30, 2000, and October 31, 2000. The last form was dated May 8, 2001, and contained a list of treatments dated April 3, 2001, April 6, 2001, April [*4]10, 2001, April 18, 2001, April 20, 2001, and April 24, 2001, which is apparently the last treatment provided. Defendant made certain payments but did not pay for all the treatments and did not pay at the rate billed.

No action was taken by plaintiff for more than six years. Thereafter, on August 29, 2007, plaintiff filed a summons and complaint dated August 3, 2007 in the Civil Court. Service was{**32 Misc 3d at 22} effectuated upon defendant on November 28, 2007, by service upon the New York State Department of Insurance. Defendant filed a timely answer in which it raised, among other defenses, the affirmative defense of the statute of limitations.

Defendant moved by order to show cause dated January 23, 2009 to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations.

The Civil Court granted defendant’s motion by order entered February 18, 2009, which stated: “Upon the foregoing cited papers, the Decision/Order on Defendant’s Order to Show Cause, dismissing Plaintiff’s Summons & Complaint with Prejudice, pursuant to CPLR 3211 (a) (5), is granted, because Plaintiff’s complaint is time-barred by the Statute of Limitations.”

It is plaintiff’s appeal from this order that creates the issues now before us. In order to reverse the motion court’s finding, this court must find that the Civil Court was in error and did not have reasonable grounds to support its decision.

It is uncontested that there were multiple claim forms submitted. Each form was dated, and each dated form contained a list of multiple dates on which the services were performed. These were simply a series of bills.

Clearly, plaintiff sent seven monthly claim forms dated November 3, 2000; December 5, 2000; January 9, 2001; February 9, 2001; March 8, 2001; April 6, 2001; and May 8, 2001. Furthermore, these claim forms billed for the prior month’s treatments and these claims were submitted to defendant on or about the date that they were generated.

This analysis is further supported by examining the claim forms, which were all submitted as an exhibit to defendant’s original motion. These forms were apparently “date stamped” by defendant’s claim management company and those “date stamps” are reasonably related to the date the claim form was generated. In this case, the very last claim form was dated May 8, 2001 for services provided from April 3, 2001 to April 24, 2001. The “date stamp” marking on that document was May 18, 2001, which means that the claim would accrue on June 18, 2001 and that the statute of limitations would expire on June 18, 2007. These are actual dates of service and submission of the claim. There is no reason to add time as to unknown, simply a guess as to what might have been.{**32 Misc 3d at 23}

The majority in its analysis does not address the fact that there are monthly billing statements, and does not acknowledge what actually occurred herein. Instead it chooses to postulate that if a covered service is provided on a certain date and there are no requests for verifications, then the latest date upon which a claim can be submitted to the insurer is 180 days after services are rendered or notice is given (see former Insurance Department Regulations [11 [*5]NYCRR] § 65.12) plus 30 days thereafter to pay or deny the claim (see former Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3]). This totals 210 days before a claim is past due. While such analysis is a correct statement of the law, it fails to acknowledge the reality of the matter before us. Plaintiff, in its opposition papers, did not state that each of these claim forms was submitted on the last possible date. Indeed, plaintiff conveniently failed to address the issue of when the claim forms were submitted. This is an unusual omission, considering the fact that plaintiff’s papers were in opposition to a motion by defendant to dismiss on the specific ground of timeliness, the failure of which should result in this court’s affirmance of the Civil Court’s order.

Under the current very relaxed requirement for no-fault cases, a plaintiff must nevertheless establish that it submitted its claim forms to the defendant. A plaintiff must do so either by affirmatively submitting proof of mailing (which will set a date) or by submitting defendant’s denial of claim form (which will set a date). Plaintiff’s failure to establish such proof of mailing renders this action premature. If a date is set, then the action must be dismissed as untimely.

It is for these reasons that I find the analysis by the majority to be unsupported in fact or law. I further find that the Civil Court had sufficient proof in its examination of the claim forms to warrant a finding that the statute of limitations had expired.

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

[*1]

Supreme Court, Appellate Term, Second Department, April 5, 2011

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for appellant. Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Michael Krall of counsel), for respondent.

{**32 Misc 3d at 9} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, without costs, defendant’s motion to vacate the judgment entered on November 21, 2008 is denied and the judgment is reinstated.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on October 5, 2005 and subsequently moved for summary judgment. Defendant opposed plaintiff’s motion. By order dated November 2, 2007, the Civil Court granted plaintiff’s motion, finding, among other things, that defendant had not established that its denials had been timely mailed. In a judgment entered on November 21, 2008, plaintiff was awarded the principal amount sought plus statutory interest and attorney’s fees. In the judgment, interest was calculated on each of the 12 claims at issue to commence 30 days after defendant’s receipt of each claim, as indicated on defendant’s claim denial forms.

Shortly after entry of the judgment, defendant moved, pursuant to CPLR 5015, to vacate the judgment, arguing that plaintiff was not entitled to the full amount of the judgment because the interest had been improperly calculated. Defendant contended that plaintiff was entitled to interest only from October 5, 2005, the date that plaintiff had commenced the action, and not, as plaintiff had computed, from 30 days after defendant’s receipt of the claim forms at issue. By order entered March 26, 2009, the Civil Court granted defendant’s motion to vacate the judgment and directed that the amount of interest awarded be recalculated to run from October 5, 2005 until November 2, 2007. This appeal by plaintiff ensued. [*2]

Insurance Law § 5106 (a) provides that first-party benefits are overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained . . . [and that] overdue payments shall bear interest at the rate of two percent per month.” If arbitration is not requested or an action is not commenced “within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]). Furthermore, if a dispute has been submitted to arbitration or to the courts, “interest shall accumulate, unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d]).{**32 Misc 3d at 10}

Where, as here, a defendant has not established the proper mailing of the denial of claim form, the claim is considered not to have been denied and payment of benefits will therefore be considered to be “overdue” within the meaning of Insurance Law § 5106 (a). Accordingly, interest on the claim will not be tolled (cf. LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]), and commences to accrue “30 days after the claim was presented to the defendant for payment until the date the claim was or is paid” (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501, 501 [1994]). As plaintiff calculated interest on the claims in question as commencing 30 days after defendant’s receipt of said claims, the Civil Court erred, in its order entered March 26, 2009, in directing that interest be recalculated from the date of the commencement of the action. Similarly, it was error to direct that interest accrue until the date of the order granting plaintiff’s motion for summary judgment, since interest accrues “until the date the claim was or is paid” (id.). It is noted that plaintiff is not entitled to interest pursuant to the Civil Practice Law and Rules, since Insurance Law § 5106 (a) and the regulations promulgated thereunder supersede the provisions for interest contained in the CPLR (Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959 [1977]; see also Smith v Nationwide Mut. Ins. Co., 211 AD2d 177 [1995]).

Accordingly, the order is reversed, defendant’s motion to vacate the judgment is denied, and the judgment entered on November 21, 2008 is reinstated.

Golia, J. (concurring in part and dissenting in part and voting to reverse the order and remit defendant’s motion to vacate the judgment to the Civil Court for a determination de novo following a hearing to determine the actual date the denial of claim forms were received by plaintiff).

Although I disagree with the majority in finding that the accumulation of interest will not be tolled until after a denial of claim (NF-10) was received by plaintiff, I am constrained to accept that analysis in view of a recent opinion letter issued by the Superintendent of the Insurance Department.

Opinions of General Counsel of the New York Insurance Department No. 10-09-05 (Sept. 14, 2010) states:

“2 . . . Interest is not tolled during the period that a claim becomes overdue until the insurer issues to the insured a denial of claim. Interest is only{**32 Misc 3d at 11} suspended or tolled from the date the claimant fails [*3]to commence an action within 30 days of the receipt of the denial of claim form until an action is actually commenced.”

Nevertheless, I find that the majority’s holding here that, “[w]here, as here, a defendant has not established the proper mailing of the denial of claim form[s], the claim is considered not to have been denied” is inappropriate.

A careful reading of the November 2, 2007 order of the Civil Court does not indicate, as the majority states, that defendant failed to establish “the proper mailing of the denial of claim form[s]” (emphasis added). The Civil Court simply found that “the affidavits proffered by defendant’s agents . . . did not establish . . . that defendant’s denials were timely mailed” (emphasis added). There is a distinction.

A defendant’s failure to prove timely mailing may well result in summary judgment for the plaintiff. However, as was made abundantly clear by the Court of Appeals in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the untimely mailing of a denial of claim form will not stop the tolling of interest.

Thus, by the confusion raised in this distinction, I further recommend that the Insurance Department revisit and clarify this issue. The punitive interest assessed against a carrier for failing to timely pay a valid claim was meant to serve as a strong incentive to pay claims in a timely manner and to punish those that do not. It would be inappropriate to allow a plaintiff to intentionally choose not to prosecute its claim in hopes that the carrier would not be able to establish mailing or that the court simply finds that it has not. Under those circumstances, the plaintiff would be receiving a windfall in excess of 24% interest per year for up to six years.

If the stated purpose of the No-Fault Law is to resolve claims expeditiously, then it must apply equally to the claimant as well as the carrier.

Weston, J.P., and Rios, J., concur; Golia, J., concurs in part and dissents in part in a separate memorandum.

District Court of Nassau County, Second District

07821/10

Friedman, Harfenist, Langer & Kraut, LLP 3000 Marcus Ave., Suite 2E1, Lake Success, NY 11042, Attorney for Plaintiff

Law Office of Karen Dodson, 100 Baylis Road, Suite 100, Melville, NY 11747, attorney for Defendant

Michael A. Ciaffa, J.

Defendant moves for an order granting it summary judgment dismissing plaintiff’s no-fault claims. Plaintiff opposes the motion.

The claims at issue involve electro-diagnostic testing that plaintiff performed upon its assignor, Winston J. Thorpe, based upon a neurologist’s referral. According to defendant’s peer review doctor, the medical records and findings that he reviewed “are inadequate in supporting the need for electro-diagnostic testing on this claimant.” Plaintiff’s opposition disputes the peer review doctor’s opinion, but it submits no expert proof of its own controverting the opinion of defendant’s expert.

Plaintiff’s opposition raises an important threshold legal question: is submission of an affirmed peer review report sufficient, by itself, to shift the burden to the plaintiff to submit opposing expert proof in order to defeat an insurer’s summary judgment motion? Recent Appellate Term decisions provide no clear answer to this question. Upon closer analysis, however, the Appellate Term’s decisions limit such burden shifting to cases where the peer review report sets forth a facially valid “factual basis and medical rationale.” While the quantum [*2]of proof needed to meet that burden may not be as stringent as required at a trial, cf. Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005), the law continues to place the burden upon the defendant to satisfy the time-tested standards for obtaining summary judgment. If the opponent can show that an expert’s opinion is conclusory, or fails to address essential factual issues, or is based upon disputed or incorrect facts, the motion should be denied regardless of whether the opponent submits opposing expert proof. Nothing in the recent caselaw suggests the existence of a special exception for no-fault cases.

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The general rules governing summary judgment motions are well-settled. Summary judgment is a “drastic remedy” which “should not be granted where there is any doubt” as to the existence of a material triable issue. Sillman v. Twentieth Century-Fox, 3 NY2d 395, 404 (1957). The proponent of the motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v, NYU Med Center, 64 NY2d 851, 853 (1985). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Id.

Once the moving party meets its initial burden, “the burden shifts to the party opposing the motion. . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hosp., 68 NY2d 329, 324 (1986). But the converse of this rule is equally true: unless and until the moving party meets its initial burden, the burden of submitting contrary evidentiary proof is not properly imposed on the opponent.

The latter rule finds common application in medical malpractice cases. In Winegrad v. NYU Med. Center, supra, for instance, the Court held that “bare conclusory assertions” from the defendant doctors, denying that they deviated “from good and accepted medical practices,” were insufficient to establish that a plaintiff’s cause of action “has no merit so as to entitle defendants to summary judgment.” 64 NY2d at 853. The Court of Appeals accordingly reversed a lower court decision granting summary judgment to the defendants. Id. It did so notwithstanding the fact that the plaintiffs had submitted “only their Counsel’s affidavit” in opposition to defendants’ motion. Id. at 852.

Likewise, where a defendant doctor’s medical expert fails to address essential factual issues in his moving affidavit contesting a claim of medical malpractice, and bases his opinion upon “disputed or apparently incorrect facts,” the Second Department’s decisions call for denial of the defendant’s motion “despite the insufficiency of the evidence proferred by the plaintiffs in opposition . . .” See e.g. Muscatello v. City of New York, 215 AD2d 463 (2d Dept. 1995); Gray v. South Nassau Communities Hosp., 245 AD2d 337 (2d Dept. 1997). [*3]

The instant no-fault action involves an area of the law that often presents similar issues of medical judgment, akin to those presented in a medical malpractice case. Over the last several years, the District Court has seen an increasing number of summary judgment motions by insurers seeking dismissal of a no-fault claim, based upon an affirmed peer review report. See generally, Siegel and Lusting, Insurer’s Use of Peer Review Report at Summary Judgment, NYLJ 6/15/09, at p. 1 col. 4. The trend in the Appellate Term decisions seems to look favorably upon such motions. Under the

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controlling appellate court precedents, however, in order for the insurer to prevail on the motion, the peer review report must nonetheless set forth a sufficient “factual basis and medical rationale” for the peer doctor’s conclusions. Id., citing cases; see e.g. Elmont Open MRI v. Clarendon Natl. Ins. Co., 2010 NY Slip Op 52061 (App Term, 9th & 10th Jud Dists.).

The published decisions of the Appellate Term, Second Department, have not precisely defined the phrase “factual basis and medical rationale.” To the extent that lower courts have attempted to define the phrase, see e.g. Nir v. Allstate Ins. Co., supra, the Appellate Term, to date, has not accepted any one definition. Nor has it insisted upon proof from a peer review doctor that links the doctor’s opinion to “generally accepted” medical practices. See Elmont Open MRI v. Clarendon Nat. Ins. Co., 2010 NY Slip Op 52061, supra, reversing decision and order of District Court, Nassau Co. (Ciaffa, J.), dated May 12, 2009.

Nevertheless, this Court sees no indication in the Appellate Term’s recent decisions that a conclusory unsubstantiated peer review report, by itself, is enough to meet the insurer’s initial burden. Older decisions by the Appellate Term make plain that “bare, conclusory assertion[s]” in a peer review report are insufficient “to create a triable issue of . . . medical necessity.” See Choicenet Chiropractic P.C. v. Allstate Ins. Co., 2003 NY Slip Op 50672 (App Term, 2d & 11th Jud Dists). A fortiorari, “bare conclusory assertions” in a peer review report should likewise be insufficient to satisfy the moving party’s burden on a summary judgment motion alleging lack of medical necessity.

Moreover, if a peer review report ignores or misrepresents documented facts in the medical records, the opponent can and should be able to point out such shortcomings. Although the Appellate Term has held that the records and reports reviewed by the peer review doctor “are not part of the defendant’s prima facie showing,” see Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 2010 NY Slip Op 51842 (App Term, 2d, 11th & 13th Jud Dists), the opponent can certainly make use of such reports and records in challenging whether the peer doctor’s opinion includes a sufficient “factual basis and medical rationale.” Absent appellate authority to the contrary, this Court sees no reason why plaintiff’s counsel cannot utilize the underlying medical records, as plaintiff’s counsel does here, as part of a broad-based effort to convince the Court that defendant’s moving papers are insufficient to meet the insurer’s burden [*4]on a motion for summary judgment.

In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor’s opinion, carte blanche, without scrutinizing the report’s contents. As plaintiff’s counsel cogently argues, “[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale.” The Court agrees that such scrutiny is

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necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor’s opinion lacks a sufficient “factual basis” and/or “medical rationale” because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant’s motion should be denied regardless of whether plaintiff submits expert proof of its own.

In the instant matter, plaintiff’s opposition points to such shortcomings in the peer review report. The peer review doctor’s opinion rests, in large part, upon his factual assumption that the medical records failed to document “persistent radicular symptoms”. However, as plaintiff’s counsel demonstrates, this assertion is contradicted by the very medical records that defendant’s expert reviewed.

Notably, the reports of claimant’s treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant’s neck and back. Several weeks after claimant’s accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of “cervical radiculopothy.” Upon Dr. Grigoran’s referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from “frequent” neck and back pain, accompanied by “numbness”. A cervical compression test was “positive” for “radicular symptomology.” So, too, the results of a Spurling test were reported as “positive”.

In light of theses symptoms and test results, Dr. Kahn’s diagnosis included findings of “Cervical/Lumbar radiculopothy,” and “Cervical radiculitis.” His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities “to elucidate the degree and location of compression on existing nerve roots and peripheral nerves.” Not surprisingly, the electro-diagnostic test results revealed “an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy.”

When such test results are viewed together with claimant’s well documented medical history, it is difficult to accept, at face value, the peer review doctor’s factual assumption that he found no evidence of “persistent radicular symptoms” which may have justified Dr. Kahn’s [*5]decision to recommend electro-diagnostic testing. Moreover, in the peer doctor’s description of the accepted standards and protocols for electro-diagnostic testing, defendant’s peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms “are persistent or unresponsive to initial conservative treatments.”

In the face of the medical record evidence, cited above, and the absence of

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proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff’s opposition makes a convincing case that defendant’s moving papers fail to meet its burden. To a significant extent, the peer review doctor’s opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant’s entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.

Finally, two other issues need to be addressed. The Court concludes that defendant’s proof of mailing of its denials is sufficient, and that its fee schedule defense was established, through proper proof, as a matter of law. Plaintiff’s opposition failed to demonstrate the existence of a triable issue on either point. Accordingly, at any subsequent trial of this action, defendant need not adduce proof of timely mailing of its denials, or adduce further proof of the fee schedule reduction. However, the issue of medical necessity will need to be tried.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: April 1, 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 on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without 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 documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 29, 2011