Reported in New York Official Reports at Bedford Med. Care, P.C. v Encompass Ins. Co. (2011 NY Slip Op 21023)
| Bedford Med. Care, P.C. v Encompass Ins. Co. |
| 2011 NY Slip Op 21023 [2011 N.Y. Slip Op. 21023] |
| January 3, 2011 |
| Cohen, J. |
| Civil Court Of The City Of New York, Kings County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, April 20, 2011 |
[*1]
| Bedford Medical Care, P.C., as Assignee of Vincent Meyers, Plaintiff, v Encompass Insurance Company, Defendant. |
Civil Court of the City of New York, Kings County, January 3, 2011
APPEARANCES OF COUNSEL
Bruno, Gerbino & Soriano, L.P., Melville, for defendant. Yelena Shlyamkovich, P.C., Brooklyn, for plaintiff.
{**2011 N.Y. Slip Op. at 1} OPINION OF THE COURT
Devin P. Cohen, J.
Defendant’s motion to dismiss pursuant to CPLR 3211 (a) (5) is decided as follows:
Procedural History
This action arises from an August 6, 2008 incident wherein plaintiff’s assignor allegedly sustained personal injuries and subsequently received treatment from plaintiff health services provider. On August 27, 2009, plaintiff commenced this action seeking to recover first-party no-fault benefits for services rendered to its assignor. Issue was joined by service of defendant’s{**2011 N.Y. Slip Op. at 2} [*2]answer on or about October 7, 2009.
Prior to the commencement of this lawsuit, defendant initiated a declaratory judgment action in Kings County Supreme Court, seeking a declaration that the incident of August 6, 2008 was a “staged or intentional incident” and therefore “not a covered event as defined by the applicable policy of insurance issued by Encompass” (plaintiff’s exhibit A). Plaintiff and its assignor, Vincent Meyers, were both named defendants in the declaratory judgment action. Neither plaintiff nor its assignor answered or appeared in the declaratory judgment action, and defendant moved for a default judgment.
On January 10, 2010 Justice Robert J. Miller granted the default judgment against plaintiff and its assignor and issued a declaratory judgment finding that defendant, “by reason of no coverage, is not required to provide a defense and/or indemnification to [plaintiff or its assignor] . . . in any current or future proceedings . . . including lawsuits seeking to recover no-fault benefits . . . arising out of the alleged incident of August 6, 2008” (defendant’s exhibit A at 3). Defendant now moves this court pursuant to CPLR 3211 (a) (5) for an order dismissing the complaint in this action, with prejudice, on the grounds of collateral estoppel based upon the order issued in the declaratory judgment action, and “for such other and further relief this court deems just and proper” (defendant’s motion to dismiss at 1).
This case raises the question of the effect of a declaratory judgment order, issued on default, with respect to collateral actions seeking to litigate the same issue. To address this question requires an analysis of the intersection of the applicable law and policies underlying declaratory judgments, collateral estoppel and default judgments.
Legal Standards
CPLR 3001 provides that “[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.” The general purpose of the declaratory judgment is often described as “to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (James v Alderton Dock Yards, 256 NY 298, 305 [1931]). Thus, a primary goal in seeking a declaratory judgment is a decisive determination as to the rights of the parties in ongoing or future collateral actions.
The Court of Appeals in Kaufman v Eli Lilly & Co. (65 NY2d 449 [1985]) outlined the purpose of the doctrine of collateral estoppel and the circumstances under which it is applied. Generally, the doctrine “precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point” (id. at 455 [internal quotation marks omitted]). The doctrine stems from the principles of judicial economy and fairness (id. at 455).
In order for the doctrine of collateral estoppel to apply, two requirements must be satisfied: (1) “the identical issue necessarily must have been decided in the prior action and be decisive of the present action” (id. at 455); and (2) “the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (id. at 455). “The party seeking the benefit of [preclusion] has the burden of demonstrating the identity of the issues [while] the party [opposing] application [of the doctrine] has the burden of establishing the absence of a full and fair opportunity to litigate” (id. at 456).
The doctrine of collateral estoppel will only apply to matters “actually litigated and{**2011 N.Y. Slip Op. at 3} [*3]determined” in a prior action (Restatement [Second] of Judgments § 27). Without “actual litigation” there is no identity of issues (see Kaufman, 65 NY2d at 457). In general, courts have taken the position that “an issue is not actually litigated if . . . there has been a default” (Kaufman, 65 NY2d at 456-457; see Restatement [Second] of Judgments § 27, Comments d, e). More recently both in Zimmerman v Tower Ins. Co. of N.Y. (13 AD3d 137 [1st Dept 2004]) and Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (27 Misc 3d 67 [App Term, 2d Dept 2010]) appellate courts have reiterated their adherence to this principle and its application to declaratory judgments. Each court held that declaratory judgments issued on default would not be given preclusive effect in collateral proceedings.
The Parties’ Contentions
Defendant contends that collateral estoppel should apply and the case should be dismissed based upon the determination in the declaratory judgment action that the alleged accident was not a covered incident. Defendant contends that the decisive issue of coverage is the same in both actions. Furthermore, defendant (plaintiff in the declaratory judgment action) contends that plaintiff (a defendant in that action) had a full and fair opportunity to litigate the matter in the declaratory judgment action in that it was duly served with the summons and complaint and failed to appear or interpose an answer. Finally, defendant contends that, as a policy matter, “to not give preclusive effect to the Supreme Court judgment is to create a disincentive for a provider, or an Eligible Injured Person, to ever appear and litigate the issues of the Declaratory Judgment” (defendant’s reply at 2).
In opposition, plaintiff cites the general rule articulated above that collateral estoppel does not apply where there has been a default because the issues have not been “actually litigated” (see Zimmerman, 13 AD3d 137; Kaufman, 65 NY2d at 457). Plaintiff offers no explanation for its default in the declaratory judgment action.
Analysis
The line of appellate cases referenced above adheres to the principle that collateral estoppel does not apply where there has been a default in the prior action. It has been argued that when it first articulated this principle in Kaufman, the Court of Appeals did not intend it to be applied in such a bright-line manner, but rather intended a more case-specific evaluation of whether the issue had been “actually litigated” (see Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988] [in analyzing the application of collateral estoppel “no rigid rules are possible, because . . . factors may vary in relative importance depending on the nature of the proceedings”]; see Kaufman, 65 NY2d at 457). In the no-fault context specifically, the argument has been made that declaratory judgments rendered on default should be given collateral estoppel effect (see Magic, 27 Misc 3d at 69-76 [Golia, J., dissenting]). That said, in light of the current appellate case law, the court is constrained from dismissing this case on the basis of collateral estoppel.
However, the fact that collateral estoppel does not apply does not mean that the instant action should proceed. The efficacy of a declaratory judgment relies on the assumption that it will be given preclusive effect in collateral actions. To allow the action to continue as though the declaratory judgment (DJ) action never occurred would create a disincentive for no-fault providers to ever appear in declaratory judgment actions and would undermine the purpose of the declaratory judgment process. While plaintiff/DJ defendant cannot, under the case law, be prejudiced by the default finding, neither should plaintiff/DJ defendant be unfairly advantaged [*4]by its own default.{**2011 N.Y. Slip Op. at 4}
In general, a default judgment is a presumptively valid judgment entitled to enforcement, unless or until reversed or set aside (All Terrain Props. v Hoy, 265 AD2d 87 [1st Dept 2000]; but see also Fleet Bus. Credit, LLC v Michael P. Costelloe, Inc., 19 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2008] [limited exception for out-of-state defaults where defendant alleges a lack of personal jurisdiction in the prior action]). To avoid enforcement of a default judgment, a defendant must move to vacate and offer both a reasonable excuse for its default and a meritorious defense to the underlying action (CPLR 317). In the court’s view, a declaratory judgment, issued on default, should be treated in the same manner. Plaintiff’s proper recourse, if it wishes to proceed with this action, is to move to vacate the default judgment in the declaratory judgment action by offering a reasonable excuse for its failure to appear and a meritorious defense to that action.
The court is empowered to stay its own proceedings “[e]xcept where otherwise prescribed by law . . . in a proper case, upon such terms as may be just” (CPLR 2201). One instance in which the staying of a given action is often deemed appropriate is when another (collateral) action is pending (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2201:4 [discussing implied stay provision on a motion to dismiss pursuant to CPLR 3211 (a) (4)]). Since plaintiff contends that the declaratory judgment cannot be given preclusive effect because it was not “actually litigated,” this court will stay the instant matter to afford plaintiff the opportunity to move to vacate its Supreme Court default and, if granted, to “actually litigate” the coverage question in the declaratory judgment action.
Conclusion
For the foregoing reasons, the court exercises its discretion to stay this action indefinitely pending any vacatur of the default judgment in the collateral declaratory judgment action. This decision is without prejudice to defendant to remake or renew this motion in the event that plaintiff is unsuccessful in vacating the declaratory judgment.
Reported in New York Official Reports at Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52267(U))
| Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co. |
| 2010 NY Slip Op 52267(U) [30 Misc 3d 127(A)] |
| Decided on December 30, 2010 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570736/09.
against
Clarendon National Insurance Company, Defendant-Appellant.
Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered March 18, 2009, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), entered March 18, 2009, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law
dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits.
Defendant demonstrated, through the affirmed peer review report of a physician, that the medical
supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v
New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note
that the physician opined that the medical supplies were not medically necessary because the
assignor was already receiving both physical and chiropractic therapy for his injuries, treatment
that the physician concluded was sufficient under the circumstances. In opposition, plaintiff,
which did not submit any evidence regarding the medical necessity of the supplies, failed to raise
a triable issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
| DECEMBER 30, 2010 | ||||||||
| SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT | ||||||||
| May 2010 Term |
Decision Date: December 30, 2010
Reported in New York Official Reports at Lenox Hill Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 20530)
| Lenox Hill Radiology, P.C. v Tri-State Consumer Ins. Co. |
| 2010 NY Slip Op 20530 [31 Misc 3d 13] |
| Accepted for Miscellaneous Reports Publication |
| AT1 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, April 27, 2011 |
[*1]
| Lenox Hill Radiology, P.C., as Assignee of Edward Bredy, Respondent, v Tri-State Consumer Insurance Company, Appellant. |
Supreme Court, Appellate Term, First Department, December 30, 2010
APPEARANCES OF COUNSEL
Corigliano, Geiger & Verrill, Jericho, for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Mineola, for respondent.
{**31 Misc 3d at 14} OPINION OF THE COURT
Per Curiam.
Judgment, entered on or about September 9, 2008, reversed, with $30 costs, and complaint dismissed.
Upon the trial of this action to recover payment of first-party no-fault benefits arising from plaintiff’s performance of four separate MRIs of plaintiff’s assignors, Civil Court awarded judgment in plaintiff’s favor in the principal amount of $4,390.16. The principal defense advanced by defendant insurer at trial was that plaintiff’s claims were premature because plaintiff had failed to respond to defendant’s verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]). Upon review of the record, we conclude that defendant presented evidence of its office mailing practice sufficient to establish that the verification requests had been mailed and presumably received by plaintiff. In this posture, and in the absence of any claim or showing that plaintiff ever responded to defendant’s timely requests for verification, we reverse the judgment appealed from and dismiss the action as premature.
At trial, defendant presented the testimony of an experienced claims examiner, Jennifer Piccolo, who both personally prepared the initial and follow-up verification requests here at issue and possessed firsthand knowledge of defendant’s standard office mailing practice. The witness’s credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the workday, when it would “go out,” and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), “obviated the necessity of producing a witness with personal knowledge of the actual mailing” of defendant’s verification letters (see Badio{**31 Misc 3d at 15} v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]). Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty [*2]it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [2007]).
Having established its routine and reasonable office practice, defendant met its burden to establish that the verification letters were mailed to (and presumably received by) plaintiff. Plaintiff not only failed to produce any countervailing evidence to rebut the presumption of receipt, but has not at any time affirmatively denied receipt of the verification letters.
Before concluding, we would be remiss in failing to note that the facts and circumstances of this action do much to illustrate the disturbing reality that first-party no-fault benefits litigation has become the antithesis of what was supposed to be an expeditious and simplified process for the payment of medical costs for injuries sustained in motor vehicle accidents (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]). Too often, lawsuits with a value akin to a small claims action become bogged down by an insistence by one party or another that mailing of routine forms be established with scientific precision, asking judges, already burdened to the breaking point with the veritable legion of no-fault cases overflowing from our court dockets (while very able arbitrators remain underutilized), to require multiple witnesses to be summoned to the courthouse, merely to establish a presumption of mailing, even in the absence of an express denial of receipt of the disputed correspondence. Unfortunately, this class of cases has spawned a body of “gotcha” jurisprudence, marked by a near manic preoccupation with form over substance.
How we have reached this sorry state is of little moment. Perhaps all branches of government need to call a “time out” and, working together, endeavor to construct a workable process to achieve what the framers of the no-fault statute had in mind when they sought to establish a simplified and expeditious process to reimburse those of our citizenry injured in automobile accidents. For sure, the system now in place is not achieving that laudable aim.
Schoenfeld, J. (dissenting). I fully agree with the majority’s sentiment that it is time for a change in no-fault litigation, which has become overly protracted and wasteful. Clearly, a{**31 Misc 3d at 16} streamlined process that yields timely, substantive results to ensure reimbursement, when appropriate, is needed. In the present case, all that was required at trial was the testimony of an individual with knowledge of defendant’s standard mailing practice. As this was not done, however, I respectfully dissent and would affirm the trial judge’s finding in favor of plaintiff.
At trial, defendant did not dispute that it received plaintiff’s bills, but averred that plaintiff failed to respond to its request for verification. In support thereof, defendant offered the testimony of Jennifer Piccolo, an experienced claims examiner.
Ms. Piccolo testified to having reviewed plaintiff’s claims, and stated why further verification was needed. As a result, she prepared verification letters and placed them in “a bin slot . . . within the department,” to be “picked up by the clerical department.” She further testified that if mail was not delivered and came back to her office, the address would be checked, and if it was wrong, it would be corrected and re-mailed. However, Ms. Piccolo candidly admitted to not knowing the mailroom procedure:
“Q: Do you have personal knowledge of the actual policies of the people who handle that mail that’s returned?[*3]
“A: Personal knowledge, yes.
“Q: Personal knowledge as in you observe them do their day to day job with respect to . . . receipt of mail returned?
“A: No.
“Q: Nor with any of their other responsibilities with respect to mailing, correct?
“A: Correct.”
It is well established that the decision of the fact-finding court should not be disturbed unless it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence. (Frame v Maynard, 78 AD3d 508 [1st Dept 2010].) Further, the burden is on the insurer to establish proper and timely mailing of verification requests. (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 6 Misc 3d 1039[A], 2005 NY Slip Op 50348[U] [Nassau Dist Ct 2005]; see Lehrer McGovern Bovis, Inc. v Public Serv. Mut. Ins. Co., 268 AD2d 388 [1st Dept 2000].)
As noted in Badio v Liberty Mut. Fire Ins. Co. (12 AD3d 229, 230 [1st Dept 2004]): “An insurer is entitled to a presumption that a [request] was received when the proof exhibits an office practice and procedure . . . which shows that the [request has]{**31 Misc 3d at 17} been duly addressed and mailed.” (Emphasis added and internal quotation marks omitted.) In that case, “Liberty Mutual did present the testimony of an employee who possessed personal knowledge of the office mailing practice, including how the mail was picked up and counted, and how the names and addresses on each item were confirmed.” (Id.)
Clearly Ms. Piccolo, who placed her letters in a bin slot within her own particular department, did not know whether such letters were put in a postal box that day. Nor did she have personal knowledge regarding even the basic mailing practice and procedure of her company. In Westchester Med. Ctr. v Countrywide Ins. Co. (45 AD3d 676 [2d Dept 2007]), defendant contended that a claim for payment was premature because plaintiff failed to respond to its verification requests. However, the Court, in holding that the statements by a supervisor employed in defendant’s claims department were insufficient, noted that she “had no personal knowledge that the verification requests were actually mailed on the dates they were issued.” (Id. at 676.) The Court further stated that “her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that [it] was designed to ensure that the verification requests were . . . properly mailed.” (Id. at 676-677; accord Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 2d Dept 2006]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d Dept 2005].)
Accordingly, the judgment in favor of plaintiff should not be disturbed.
McKeon, P.J., and Shulman, J., concur; Schoenfeld, J., dissents in a separate opinion.
Reported in New York Official Reports at Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))
| Bath Med. Supply, Inc. v GEICO Ins. Co. |
| 2010 NY Slip Op 52316(U) [30 Misc 3d 130(A)] |
| Decided on December 23, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and STEINHARDT, JJ
2009-2001 K C.
against
GEICO Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 16, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking 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 or, in the alternative, for a finding, pursuant to
CPLR 3212 (g), that defendant had issued timely and valid
claim denials. The Civil Court found that defendant’s claim denial forms “were timely and
properly mailed,” and held that the sole issue to be determined at trial was the medical necessity
of the medical supplies at issue. This appeal by defendant ensued.
The papers submitted in support of defendant’s motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the opinions of the peer reviewers that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s motion, plaintiff stated that it was not in possession of all the information and documentation relied upon by the peer reviewers and that these documents were “essential to justify opposition” to defendant’s motion (CPLR 3212 [f]). Plaintiff, however, failed to demonstrate that it needed these documents in order to raise a triable issue of fact as to whether the supplies at issue were medically necessary (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]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d [*2]146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to seek discovery of such documentation before the summary judgment motion was made (see Mega Supply & Billing, Inc. v Clarendon [reported as Larendon] Natl. Ins. Co., 28 Misc 3d 137[A], 2010 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).
In light of the foregoing, as well as the Civil Court’s CPLR 3212 (g) finding that defendant’s claim denial forms were timely and properly mailed, a finding which plaintiff does not dispute on appeal, and since plaintiff failed to rebut defendant’s prima facie showing that there was a lack medical necessity for the supplies at issue (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]), the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been granted.
Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: December 23, 2010
Reported in New York Official Reports at Kruger v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 09456)
| Kruger v State Farm Mut. Auto. Ins. Co. |
| 2010 NY Slip Op 09456 [79 AD3d 1519] |
| December 23, 2010 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Louise Kruger, Appellant, v State Farm Mutual Automobile Insurance Company, Sued Herein as State Farm Insurance Company, Respondent. |
—[*1]
Goldberg Segalla, L.L.P., Albany (Matthew S. Lerner of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (O’Connor, J.), entered June 29, 2010 in Ulster County, which granted defendant’s motion for summary judgment dismissing the complaint.
Plaintiff was injured while driving a vehicle insured by defendant. Defendant initially paid no-fault insurance benefits for her chiropractic treatment, but ceased doing so after an independent medical examination found no further treatment to be necessary. Plaintiff nevertheless received further treatment and commenced this action to recover benefits in 2005. After joinder of issue and discovery, defendant moved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right to payment for no-fault benefits to her chiropractor and did not have standing to bring the present action. Supreme Court agreed that plaintiff lacked the capacity to sue and dismissed the complaint, and plaintiff appeals.
Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was not raised in a pre-answer motion to dismiss or in defendant’s answer, it was waived and cannot [*2]now be advanced (see CPLR 3211 [a] [3]; [e]; McHale v Anthony, 70 AD3d 466, 467 [2010]; Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1087 [2007]). Contrary to defendant’s contention, the standing issue does not implicate the jurisdiction of Supreme Court such as to render it nonwaivable. Supreme Court is empowered to determine whether defendant is liable to pay no-fault benefits (see Marangiello v Kamak, 64 AD2d 624, 625 [1978]), and whether plaintiff is a proper person to pursue that claim “is an issue separate from the subject matter of the action or proceeding, and does not affect the court’s power to entertain the case before it” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2007]; see Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092-1093 [2008]). Accordingly, defendant waived its right to assert lack of standing as an affirmative defense.
Peters, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.
Reported in New York Official Reports at Belt Parkway Imaging, P.C. v State Wide Ins. Co. (2010 NY Slip Op 52229(U))
| Belt Parkway Imaging, P.C. v State Wide Ins. Co. |
| 2010 NY Slip Op 52229(U) [30 Misc 3d 127(A)] |
| Decided on December 20, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
. 2009-113 Q C 2009-1471 Q C
against
State Wide Insurance Company, Appellant.
Appeals from a judgment of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered December 30, 2008, and from an order of the same court (Diane A. Lebedeff, J.), entered May 27, 2009. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $4,223.17. The order denied defendant’s motion to vacate the judgment.
ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgment is affirmed, without costs; and it is further,
ORDERED that the appeal from the order entered May 27, 2009 is dismissed as academic.
Plaintiffs commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the Civil Court (Bernice Daun Siegal, J.) found, among other things, that defendant had failed to establish, by clear and convincing evidence, its defense that plaintiffs were ineligible for reimbursement of no-fault benefits on the ground that they were operated in violation of state licensing requirements. As a result, judgment was [*2]entered in favor of plaintiffs in the principal sum of $4,223.17. Thereafter, defendant moved to vacate the judgment on the ground that the judgment awarded no-fault statutory interest based on an improper accrual date. The Civil Court (Diane A. Lebedeff, J.) denied defendant’s motion. Defendant appeals from the judgment and the post-judgment order, which appeals we consolidate for disposition.
The appeal from the post-judgment order is dismissed as academic since the issue can be reviewed on the appeal from the judgment (see Binghamton Precast & Supply v A. Servidone, Inc./Anthony Constr. Corp., 257 AD2d 731, 732 n [1999]).
It is well settled that a provider of healthcare services is ineligible for reimbursement of assigned first-party no-fault benefits “if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]). State law mandates that professional service corporations be owned and controlled only by licensed professionals (see Business Corporation Law § 1503 [a]; §§ 1507, 1508), and that licensed professionals render the services provided by such corporations (see Business Corporation Law § 1504 [a]). A professional corporation which is actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law is not entitled to be reimbursed for no-fault benefits (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).
On appeal, defendant contends that the Civil Court erred in finding that defendant had to establish its defense – – that plaintiffs were operated in violation of state licensing requirements thereby making plaintiffs ineligible for reimbursement of no-fault benefits – – by clear and convincing evidence rather than merely by a preponderance of the evidence. In support of this proposition, defendant cites V.S. Med. Servs., P.C. v Allstate Ins. Co. (25 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [an insurer need only establish the defense of a staged accident by a preponderance of the evidence]). We need not ultimately decide this issue here since, upon a review of the record, we find that the evidence adduced at trial was insufficient to establish, even by a preponderance of the evidence, that plaintiffs were operated in violation of state licensing requirements. To the extent that defendant sought to establish at trial that the management company hired by plaintiffs was the entity that actually “operated” (Mallela at 319) the plaintiff corporations, the record is devoid of facts establishing any of the indicia of ownership or control by one other than plaintiffs’ licensed professional.
Where, as here, a provider is found to be entitled to reimbursement of no-fault benefits, it is entitled to no-fault statutory interest from the time that the claim is overdue (see former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1], now Insurance Department Regulations [11 NYCRR] § 65-3.9 [a]). However, statutory interest is tolled if the provider fails to request arbitration or commence a lawsuit within 30 days after receiving the denial (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007], affd 61 AD3d 202 [2009]). Since defendant failed to establish that it ever sent denial of claim forms to plaintiffs, the accrual of interest was never tolled and interest due on the claims commenced from 30 days after the claims were submitted to the insurer for payment (see Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). Upon a review of the [*3]record, we find that the Civil Court properly determined the date that interest began to accrue.
With regard to defendant’s contention that the interest was improperly compounded, former Insurance Department Regulations (11 NYCRR) § 65.15 (h) (1) provided for interest at the rate of “two percent per month, compounded.” While the aforementioned regulation was superseded on April 5, 2002 by Insurance Department Regulations (11 NYCRR) § 65-3.9 (a), which provides for “interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month,” the claims involved herein are all governed by the former Insurance Department Regulations. Defendant further asserts that to the extent that the former regulation provided for the compounding of interest, it was inconsistent with the statute. However, the statute merely provides for interest to be calculated at a rate of 2% per month and does not indicate a legislative preference for either simple or compound interest. Since the regulation providing for compound interest is not inconsistent with Insurance Law § 5106 (a) and it “is neither irrational nor unreasonable, it is entitled to deference” (East Acupuncture, P.C., 61 AD3d at 209). Accordingly, defendant’s contention that the court erred in awarding compound interest lacks merit.
Finally, defendant’s defense of statute of limitations was waived since defendant never raised said defense in its answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Ferri v Ferri, 71 AD3d 949 [2010]).
In light of the foregoing, the judgment is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 20, 2010
Reported in New York Official Reports at Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 20512)
| Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. |
| 2010 NY Slip Op 20512 [30 Misc 3d 497] |
| December 17, 2010 |
| Palmieri, J. |
| Supreme Court, Nassau County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 23, 2011 |
[*1]
| Westchester Medical Center, as Assignee of Luis Vargas, Also Known as Vinny Voultner, Plaintiff, v New York Central Mutual Fire Insurance Company, Defendant. |
Supreme Court, Nassau County, December 17, 2010
APPEARANCES OF COUNSEL
Joseph Henig, P.C., Bellmore, for plaintiff. Gullo & Associates, LLP, Brooklyn, for defendant.
{**30 Misc 3d at 498} OPINION OF THE COURT
Daniel Palmieri, J.
This motion by the plaintiff for summary judgment is denied, with leave to renew upon the completion of discovery. The cross motion by the defendant for a stay of trial pending the outcome of criminal proceedings against the plaintiff’s assignor and for a [*2]preliminary conference to schedule dates for discovery, or, in the alternative, granting defendant summary judgment on the ground that it made a timely denial, is granted to the limited extent that a preliminary conference shall be had at the date and time indicated herein. Defendant is also granted leave to renew its motion for summary judgment upon the completion of discovery. The cross motion is otherwise denied.
In this action for first-party no-fault benefits, the court finds that the plaintiff has presented prima facie proof that it timely rendered a bill to the defendant insurance company on the proper no-fault form, and that the defendant failed either to pay or issue a denial of the claim within the prescribed 30-day time period. (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1].)
In response, however, the defendant has shown that within 30 days of receipt it issued a request for verification, in this case a request for laboratory tests and/or X-ray results, and for an acceptable assignment form. The request for verification therefore tolled the 30-day period to pay or deny the claim until the records were received. (11 NYCRR 65-3.5 [a], [b]; 65-3.8; see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2d Dept 2004].)
There is no dispute that the records were provided. The defendant thereafter timely issued a denial on the ground that the plaintiff’s assignor was intoxicated at the time of the accident, which may constitute a ground for denial pursuant to Insurance Law § 5103 (b) (2) or (3) (if a felony), and under defendant’s policy. The plaintiff contends that because there is no proof of intoxication presented, and, relatedly, no proof that the injury-causing accident was the result of such intoxication, the defense{**30 Misc 3d at 499} is without merit. It relies primarily on a recent Appellate Division, Second Department, case, Westchester Med. Ctr. v Government Empls. Ins. Co. (77 AD3d 737 [2d Dept 2010]). However, in the present matter the defendant has asked for a stay of the trial pending discovery on this issue. Plaintiff’s response has been that under summary judgment jurisprudence the motion opponent must lay bare its proof, and proof is absent.
The court finds that there is a basis for applying CPLR 3212 (f). This subdivision provides that if it appears from affidavits submitted in opposition that facts essential to justify opposition may exist but cannot then be stated, a court may deny the motion, order a continuance to permit needed disclosure to be undertaken, or “make such other order as may be just.” (CPLR 3212 [f].)
A party who raises a defense that has not yet been fully developed, but appears to exist, must be able to make some showing that such facts do in fact exist for CPLR 3212 (f) to apply; mere hope that discovery may reveal those facts is insufficient. (Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519 [2d Dept 2006].) Nor can mere speculation serve to defeat the motion. (Pluhar v Town of Southampton, 29 AD3d 975 [2d Dept 2006]; Ciccone v Bedford Cent. School Dist., 21 AD3d 437 [2d Dept 2005].) However, denial of the motion on the ground that necessary disclosure is lacking is appropriate if there is some basis in the record for finding that evidence sufficient to defeat the motion may exist, [*3]especially where the facts appear to lie within the knowledge of the opposing party and discovery is in its early stages. (See Adler v City of New York, 52 AD3d 549 [2d Dept 2008]; Baron v Incorporated Vil. of Freeport, 143 AD2d 792 [2d Dept 1988].)
The court finds that this is the case here. There is no direct proof of intoxication submitted, or that such intoxication caused the accident. However, the defendant presents the affidavit of the office manager of defendant’s law firm, Christopher Roselli, who states that the police report revealed that plaintiff’s assignor, Luis Vargas, was arrested at the accident scene on charges of driving while intoxicated. He further states that he spoke to Orange County Assistant District Attorney Steven Goldberg, who informed him that Vargas was indicted on 34 charges, including two counts of driving while intoxicated. A formal request for a copy of the indictment was made, and the results of that request, a copy of the indictment, is annexed to defendant’s reply papers. Among other things, the indictment{**30 Misc 3d at 500} contains not only a charge of driving while intoxicated, but also of vehicular manslaughter in the first degree, as a passenger in Vargas’s vehicle was ejected and killed as a result of his operation of the vehicle while under the influence of alcohol. Other felony counts are based on injuries to other passengers. Thus, in addition to allegedly driving while intoxicated, his operation of the vehicle may have resulted in his having been injured while committing a felony.
While the foregoing clearly is in part hearsay, the indictment does verify the key information referred to by Roselli. For purposes of plaintiff’s motion, it is sufficient for the court to find that evidence sufficient to defeat the motion may exist, and that disclosure should be permitted. (See Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2d Dept 2008].) This is especially so where information regarding the alleged intoxication, and its role in causing the injury-producing accident, lies in part within the knowledge of plaintiff’s assignor, and this action is in its early stages. The court understands that Vargas may not be available for a deposition, or may choose to invoke his Fifth Amendment rights, which will of necessity slow discovery here. Further, the criminal case also appears to be in its early stages. However, possible difficulties in moving the present civil case forward is not a reason to prejudice the defendant’s ability to defend itself given the factors described in this decision.
The record here also distinguishes this matter from Westchester Med. Ctr. v Government Empls. Ins. Co. (77 AD3d 737, 738 [2010], supra) as in that case
“the defendant failed to submit any evidence whatsoever from which the circumstances of the accident could be ascertained, the nature of the accident is unknown, and, thus, the defendant’s evidence . . . was insufficient by itself to raise a triable issue of fact as to whether the plaintiff’s assignor was ‘injured as a result of operating a motor vehicle while in an intoxicated condition.’ “
Here, the nature of the accident is known, and there is some evidence that discovery may reveal that plaintiff’s assignor was injured as a result of operating a vehicle while in an intoxicated condition.
Accordingly, the plaintiff’s motion is denied pursuant to CPLR 3212 (f), but may be [*4]renewed upon the completion of discovery. Counsel are directed to appear for a preliminary conference in{**30 Misc 3d at 501} the basement of the courthouse on January 24, 2011, at 9:30 a.m. Failure to appear for such conference or upon an adjourned date may result in the imposition of sanctions pursuant to 22 NYCRR 202.27.
No stay of trial is being issued, as such a request by the defendant is premature. Further, the alternative relief of summary judgment the defendant seeks is also denied. This determination is made based upon the same reason summary judgment is denied to the plaintiff, i.e., the need for disclosure—the absence of which prevents the defendant from establishing a prima facie showing that plaintiff’s assignor was, in fact, intoxicated, and the cause of his injuries. However, defendant is also granted leave to renew its application for summary judgment on the completion of discovery.
Reported in New York Official Reports at Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))
| Gentle Care Acupuncture, P.C. v Geico Ins. Co. |
| 2010 NY Slip Op 52226(U) [30 Misc 3d 126(A)] |
| Decided on December 16, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-2179 K C.
against
Geico Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 21, 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to plaintiff’s claim for $160.56 (for services rendered on January 10, 2007); as so modified, the order is affirmed, without costs. The matter is remitted to the Civil Court for all further proceedings on the $160.56 claim.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and the cross motion, finding that “triable issues of fact exist as to the Workers[‘] Compensation fee schedule and medical necessity.” Defendant appeals from so much of the order as denied its cross motion.
The record demonstrates that the acupuncture services at issue were rendered by a licensed acupuncturist, and that defendant timely denied (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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the portions of plaintiff’s claims for acupuncture services that it determined exceeded the proper rate of reimbursement for services provided by a licensed acupuncturist. As a matter of law, an insurer may use the workers’ compensation fee [*2]schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such services (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since it is undisputed that defendant reimbursed plaintiff pursuant to such workers’ compensation fee schedule, plaintiff is not entitled to any additional reimbursement on the claims which defendant determined exceeded the proper rate of reimbursement under the fee schedule for acupuncture services rendered by a chiropractor, and defendant’s cross motion for summary judgment with respect to the unpaid portions of said claims should have been granted.
Defendant also timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) charges of $90 and $35 for services rendered on March 28, 2007, based upon independent medical examinations (IMEs) performed on March 20, 2007, which found a lack of medical necessity for further acupuncture services. In support of its cross motion for summary judgment with respect to said charges, defendant submitted IME reports and accompanying affidavits of an acupuncturist and a chiropractor which established, prima facie, a lack of medical necessity for the services at issue. Although plaintiff submitted, in opposition to the cross motion, an “Affidavit of Medical Necessity” of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s cross motion as sought summary judgment dismissing those charges should have been granted (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]).
Since defendant did not make a prima facie showing of its entitlement to judgment as a matter of law with respect to the remaining claim in dispute, i.e., a charge for $160.56 (for services rendered on January 10, 2007), its motion for summary judgment was properly denied as to this claim.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2010
Reported in New York Official Reports at Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52222(U))
| Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2010 NY Slip Op 52222(U) [30 Misc 3d 126(A)] |
| Decided on December 16, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through December 28, 2010; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-1827 N C.
against
New York Central Mutual Fire Ins. Co., Appellant.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated May 21, 2009. The order denied defendant’s motion for, among other things, summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted; 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
for summary judgment dismissing the complaint and for an award of costs and sanctions.
Plaintiff opposed the motion, and the District Court denied the
motion, finding that the affidavit of defendant’s senior litigation examiner was insufficient
to establish the timely mailing of the denial of claim forms, and that the peer review report
submitted by defendant failed to establish that the services rendered lacked medical necessity
since the medical records and/or documents relied upon by the peer review doctor in making his
determination were not annexed thereto. The instant appeal by defendant ensued.
Contrary to the determination of the District Court, the affidavit of defendant’s senior litigation examiner was sufficient to establish that defendant had timely mailed the denial of claim forms 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The claims were denied on the ground that the services rendered were not medically necessary. [*2]
Defendant’s affirmed peer review report, submitted in support of its motion, established, prima facie, that there was a lack of medical necessity for the services at issue. The fact that defendant’s peer review doctor considered medical records from plaintiff, as well as from other providers who had treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (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]; 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]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted that plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).
Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in the assignor’s records were true, the treatment allegedly provided by plaintiff was not medically necessary. Therefore, such underlying medical records were not being used for a hearsay purpose (see e.g. Matter of State of New York v Wilkes, ___ AD3d ___, 2010 NY Slip Op 07006 [4th Dept 2010]; Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided by plaintiff was not medically necessary is irrelevant.
We further note that plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue which plaintiff provided were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat the branch of defendant’s motion seeking summary judgment. [*3]
Defendant’s remaining contention, to wit, that it was entitled to costs and sanctions for plaintiff’s allegedly frivolous conduct, lacks merit.
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: December 16, 2010
Reported in New York Official Reports at Davidov Med., P.C. v Firemans Fund Ins. Co. (2010 NY Slip Op 52220(U))
| Davidov Med., P.C. v Firemans Fund Ins. Co. |
| 2010 NY Slip Op 52220(U) [29 Misc 3d 144(A)] |
| Decided on December 16, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-728 K C.
against
Firemans Fund Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated October 6, 2008. The order granted 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 denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, contending that it had already paid the bills at issue. The Civil Court granted defendant’s motion, and the instant appeal by plaintiff ensued.
On a motion for summary judgment, the proponent bears the initial burden of setting forth
evidentiary facts to prove a prima facie case (see CPLR 3212; Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New
York, 49 NY2d 557, 562 [1980]). Only if the proponent meets this burden, will the burden
shift to the party opposing summary judgment, who must then establish the existence of a
material issue of fact, through evidentiary proof in admissible form, that would require a trial of
the action (see Zuckerman v City of New York, 49 NY2d at 562). If the proponent fails
to make out its prima facie case for summary judgment, its motion must be denied, regardless of
the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]).
Upon a review of the record, we find that defendant did not make a prima facie showing [*2]that it had paid the four specific bills alleged by plaintiff in its complaint to be outstanding. Accordingly, defendant’s motion should have been denied (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2010