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 March 16, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s unopposed motion, finding that plaintiff had failed to make out a prima facie case. This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 2010

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 November 3, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and granted the branch of a motion by plaintiff seeking to deem certain facts established for all purposes in the action.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the Civil Court’s order as found that plaintiff had established its prima facie case and as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see 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]).

Defendant denied the claim at issue in plaintiff’s first cause of action on the ground of lack of medical necessity. In support of its cross motion, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided. As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]; 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]).

Defendant denied the claims at issue in plaintiff’s second, third and fourth causes of action based upon plaintiff’s assignor’s failure to appear for properly scheduled independent medical examinations (IMEs). In support of the branches of its cross motion seeking summary judgment as to those causes of action, defendant submitted the affidavit of an employee of Media Referral Inc., which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on February 27, 2007 and March 9, 2007 in accordance with Media Referral’s standard office practices and procedures (see Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted the affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on March 8 and March 22, 2007 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). 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), the branches of defendant’s cross motion seeking summary judgment as to those causes of action should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied. In light of our determination, we do not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 6, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02.

ORDERED that the order, insofar as appealed from, is reversed without costs, and the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment upon its
claim form for the sum of $3,551.02. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The Civil Court granted plaintiff’s motion for summary judgment upon this claim form, and this appeal ensued.

Contrary to defendant’s contention, the affidavit of plaintiff’s medical billing supervisor was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Since defendant raises no other issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not otherwise pass on the propriety of the determination of the Civil Court with respect thereto.

The affidavits submitted by defendant’s “mail and file manager” and its litigation examiner were sufficient to establish that defendant’s denial of claim form, which had denied the [*2]claim at issue of the ground of lack of medical necessity, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Defendant also submitted a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is reversed and plaintiff’s motion for summary judgment upon the claim form seeking to recover the sum of $3,551.02 is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 (Robin S. Garson, J.), entered August 8, 2008. The order denied a petition to vacate a master arbitrator’s award and confirmed the award.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator which upheld an award of an arbitrator rendered pursuant to Insurance Law § 5106 (b), respondent opposed the petition, asserting that the master arbitrator had properly upheld the award. The Civil Court denied the petition and confirmed the award. The instant appeal by petitioner ensued.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and
narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]). In the instant case, petitioner failed to demonstrate the existence of any of the statutory grounds for vacatur of the master arbitrator’s award. Moreover, the determination of the master arbitrator upholding the arbitrator’s award “had evidentiary support and a rational basis, and was not arbitrary and capricious” (id.; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560 [2007]). Accordingly, the Civil Court properly denied the petition to vacate the master arbitrator’s award, and the order is affirmed. [*2]

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am in complete disagreement with the findings of the arbitrator and the master arbitrator, in that they improperly imposed an additional requirement for a sufficient peer review report, which requirement is neither mandated by the no-fault regulations nor supported by authoritative case law. However, notwithstanding the error in their application of the law, such error does not here rise to the level of being arbitrary and capricious.
Decision Date: October 01, 2010

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 (Robin S. Garson, J.), entered March 11, 2009. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment as to the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, and denied defendant’s cross motion for summary judgment as to the unpaid portions of those claim forms.

ORDERED that the order, insofar as appealed from, is reversed without costs, so much of plaintiff’s motion as sought summary judgment on the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, is denied, and so much of defendant’s cross motion as sought summary judgment on the unpaid portions of those claim forms is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to recover for the unpaid portions of five claim forms for acupuncture services. Defendant had paid portions of each claim, but had denied the remainder of each claim on the ground that plaintiff sought to recover fees in excess of what defendant had determined to be the proper rate of reimbursement for acupuncture services performed by chiropractors. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that defendant had failed to specify the dates on which its denials were mailed. On appeal, defendant limits its argument to the unpaid portions of three claim forms, which sought the sums of $1,820, $1,300 and $780, respectively.

Contrary to the conclusion of the Civil Court, the affidavit of defendant’s claims division employee was sufficient to establish that the relevant denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s [*2]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]). Moreover, defendant properly demonstrated that it had used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by plaintiff’s licensed acupuncturist (Amercure Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50068[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, since defendant fully paid plaintiff the amount to which plaintiff was entitled with respect to the claim forms seeking the sums of $1,820, $1,300, and $780, respectively, plaintiff’s motion for summary judgment with regard to those unpaid portions should have been denied and defendant’s cross motion with respect thereto should have been granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 (Kathy J. King, J.), entered March 13, 2009. 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 is denied.

In this action by a provider to recover assigned first-party no-fault benefits for medical services provided from October 7, 2004 through December 29, 2004, defendant moved for summary judgment dismissing the complaint on the ground that it never received the claim forms and, as a result, the claim forms were not submitted within “180 days” after the services were provided (see former Insurance Department Regulations [11 NYCRR] § 65.12). In opposition, plaintiff argued that defendant must have received the claim forms since it knew the dates that the medical services were rendered as well as the total amount of the claims. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

We note at the outset that while defendant argued that plaintiff did not submit its claim forms within 180 days after the medical services were provided, since the medical services were provided from October 7, 2004 through December 29, 2004, plaintiff was actually required to submit its claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [effective April 5, 2002]).

Upon a review of the record, we are of the opinion that defendant did not make a prima facie showing of its entitlement to judgment as a matter of law. While the complaint listed the [*2]total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is reversed and defendant’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 (Katherine A. Levine, J.), entered January 16, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment is granted to the extent of dismissing the complaint with respect to the claim by plaintiff S & R Medical, P.C. in the sum of $2,831.08; as so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. The Civil Court denied plaintiffs’ motion and defendant’s cross motion. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided by plaintiff S & [*2]R Medical, P.C. in the amount of $2,831.08. As S & R Medical, P.C. failed to submit any evidence to rebut defendant’s showing of lack of medical necessity, defendant’s cross motion for summary judgment should have been granted as to the $2,831.08 claim (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]).

Defendant’s contention that the Civil Court should have granted it summary judgment dismissing the claim by plaintiff Altair Medical, P.C. and the claim by plaintiff S & R Medical, P.C. in the amount of $793.24 lacks merit because the “peer review report” pertaining to these claims was unsigned. Accordingly, defendant failed to establish its prima facie entitlement to summary judgment dismissing these claims (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

[*1]

District Court of Nassau County, Second District, September 24, 2010

APPEARANCES OF COUNSEL

Law Offices of Robert E. Dash, Syosset, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**29 Misc 3d at 985} OPINION OF THE COURT

Michael A. Ciaffa, J.

At the trial of this no-fault case, involving electrodiagnostic testing, defendant presented expert testimony from Dr. Nicholas Berbari in support of its lack of medical necessity defense. Dr. Berbari is board certified in internal medicine. While his qualifications in that field are not contested, plaintiff contended at trial that Dr. Berbari was not competent to challenge the necessity of the electrodiagnostic tests prescribed by claimant’s treating chiropractor.

Memoranda addressing plaintiff’s contention have been submitted for the court’s consideration. For the reasons set forth below, the court overrules plaintiff’s objection to Dr. Berbari’s competence. The testimony adduced by defendant at trial, read in the context of other evidence, includes adequate proof of Dr. Berbari’s familiarity with the generally applicable standards for prescribing and performing electrodiagnostic testing. Accordingly, plaintiff’s challenge to Dr. Berbari’s expertise goes only to the weight of his testimony, and not to its admissibility.

The court begins its analysis by noting that defendant does not have to call a chiropractor as its expert witness in order to controvert the necessity of electrodiagnostic tests ordered by Andrew D. Pincus, D.C., in the course of providing chiropractic services and treatments to claimant after an auto accident. Although expert proof is needed to overcome the presumption of medical necessity and to satisfy defendant’s burden by a preponderance of evidence, the defendant ordinarily may meet that burden by submitting proof from a medical expert establishing that the services in question were not necessary when viewed in the context of generally accepted medical practices. (See Nir v Allstate Ins. Co., 7 Misc 3d 544, 546-547 [Civ Ct, Kings County 2005].) [*2]

It is well settled that a physician called to testify at a trial “need not be a specialist in a particular field in order to be considered a medical expert.” (Gordon v Tishman Constr. Corp., 264 AD2d 499, 502 [2d Dept 1999], quoting Julien v Physician’s Hosp., 231 AD2d 678 [2d Dept 1996], quoting Humphrey v Jewish Hosp. & Med. Ctr. of Brooklyn, 172 AD2d 494 [2d Dept 1991].) While the practice of chiropractic has been deemed “separate and distinct from the practice of medicine” (see Taormina v Goodman, 63 AD2d 1018 [2d Dept 1978]), chiropractors and medical doctors both share the ability to make informed judgments{**29 Misc 3d at 986} regarding the need for electrodiagnostic tests. Moreover, defendant’s expert in this matter, Dr. Berbari, established to the court’s satisfaction that he possesses, through training and experience, sufficient knowledge and expertise to render an opinion respecting the relevant standards for prescribing and performing electrodiagnostic testing. Consequently, the court sees no basis for concluding, as a matter of law, that his opinion is incompetent simply because the subject tests were ordered by a chiropractor.

In reaching this conclusion, the court recognizes that other courts, in other contexts, have rejected evidence from medical doctors in matters involving issues of chiropractic malpractice (e.g. Taormina v Goodman, supra), or the necessity of MRIs ordered by a chiropractor (e.g. Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 26 Misc 3d 1211[A], 2010 NY Slip Op 50053[U] [Nassau Dist Ct, 2010]). But both lines of cases leave open, for judicial consideration, expert medical proof that competently addresses the issue at hand. In Taormina, the plaintiff presented “no competent . . . evidence” that the defendant failed to exercise the degree of care that “a reasonably prudent chiropractor” would exercise under the circumstances. (63 AD2d at 1018.) In Elmont Open MRI, the court noted the absence of proof from defendant’s expert respecting “the generally accepted reasons why a chiropractor would order . . . a cervical or lumbar MRI” (2010 NY Slip Op 50053[U], *4).

The instant case, in contrast, involves standards of care which are arguably identical for chiropractic practitioners and doctors of internal medicine. Both evaluate patients showing symptoms of radiculopathy in the course of their practices. Dr. Berbari’s testimony sets forth his understanding of the generally accepted standards for prescribing and conducting electrodiagnostic testing upon patients who exhibit symptoms of radiculopathy. From defendant’s perspective, the opinions expressed by Dr. Berbari are not dependent upon knowledge of chiropractics, per se, but rather reflect generally accepted standards which extend to any professional’s involvement in electrodiagnostic testing. Absent proof on rebuttal from plaintiff contesting the latter point, the court is not prepared to assume that Dr. Berbari’s opinion is incompetent and irrelevant to the issues at hand.

To the extent plaintiff maintains that defendant’s expert lacks familiarity with applicable chiropractic standards for prescribing electrodiagnostic tests, the court concludes that any alleged lack of familiarity with chiropractic standards goes only “to the{**29 Misc 3d at 987} weight of the testimony, not its admissibility.” (See Bodensiek v Schwartz, 292 AD2d 411 [2d Dept 2002]; see also Walsh v Brown, 72 AD3d 806 [2d Dept 2010]; Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831 [2d Dept 2005]; Erbstein v Savasatit, 274 AD2d 445 [2d Dept 2000].)

Decisions from other state courts are in accord with this approach. In Blankenship v [*3]Iowa Nat. Mut. Ins. Co. (41 Colo App 430, 432, 588 P2d 888, 890 [1978]), for example, the court reiterated that a doctor of medicine “is not ipso facto an incompetent witness” simply because the case involved a chiropractor’s actions. The issue in that case, like the issue here, was whether the chiropractor’s charges “were reasonable and necessary” (41 Colo App at 431, 588 P2d at 890). The defendant opposed the chiropractor’s claim for payment by presenting proof from an orthopedist that the chiropractor’s treatments were “neither necessary nor beneficial.” (Id.) Rejecting plaintiff’s claim on appeal that the orthopedist was “not competent to testify as an expert against a [chiropractic] practitioner,” the court held:

“[T]he issue in this case was not whether, based on the standard of care and degree of skill customarily observed by practitioners of chiropractic, Dr. Collinson was guilty of malpractice or had been negligent in the treatment administered. Rather, the issue was whether the chiropractic services furnished were ‘reasonable and necessary’ . . . Any evidence which aided the jury in deciding that question was proper. The plaintiffs’ contention goes only to the witness’ credibility.” (41 Colo App at 432, 588 P2d at 890.)

Accordingly, plaintiff’s motion to preclude consideration of Dr. Berbari’s testimony is denied. The parties are directed to proceed with presenting other necessary proof on the next scheduled trial date, September 30, 2010. All other issues, including the persuasive weight of defendant’s expert proof, are reserved for later determination.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about June 26, 2007, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $878.67.

Per Curiam.

Judgment (Peter H. Moulton, J.), entered on or about June 26, 2007, reversed, without costs, and judgment directed in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

Plaintiff, a provider of radiology services, submitted a claim to defendant for medical services rendered to plaintiff’s assignor, Julia Higginbotham. The claim was denied on coverage grounds, defendant asserting that its records indicated that Higginbotham was a pedestrian struck by a vehicle owned and operated by Linell McWilliams (an insured of defendant) in the State of Louisiana, where there is no no-fault coverage or obligation to pay first-party benefits. At trial, defendant stipulated to plaintiff’s prima facie case, and the only issue litigated was defendant’s lack of coverage defense. In support of its defense, defendant called one witness, a senior underwriter. The court subsequently rendered judgment in favor of plaintiff and awarded it the damages sought in the complaint.

We disagree with the trial court’s conclusions that defendant’s lack of coverage defense was predicated solely on inadmissible hearsay and that defendant, to establish its lack of coverage defense, was obligated to produce a witness with personal knowledge of the underlying accident. Defendant’s witness, whose testimony showed that the subject accident occurred in Louisiana and involved a pedestrian (Higginbotham) who was struck by a motor vehicle owned and operated by a Louisiana driver (McWilliams), appropriately relied on the contents of the subject claims log, a business record which constitutes an exception to the hearsay rule.

Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold. While more than one insurer may be obligated to pay first-party no-fault benefits for a covered event (see Insurance Law § 5106[d]), the obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured. Not only did plaintiff fail to satisfy that obligation here, but plaintiff’s counsel readily admitted at trial that counsel had no inkling whether Higginbotham was defendant’s insured.

Since defendant demonstrated that the claim did not arise out of an insured incident, it established its lack of coverage defense (see generally Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), and the complaint should have been dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 21, 2010

District Court of Nassau County, Second District

45913/08

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

Law Offices of Michael S. Nightingale, 300 Glen Street, LL2 Glen Cove, NY 11542, Attorney for Defendant

Michael A. Ciaffa, J.

The trial of this no-fault action by Elmont Open MRI against New York Central Mutual Fire Ins. Co. presents two issues for determination: (1) plaintiff’s proof of its prima facie case, and (2) defendant’s defense that several MRIs were not medically necessary.

The first issue had to be tried because defendant would not stipulate to plaintiff’s prima facie case. Such stipulations are customary in this Court. Nevertheless, defendant was within its rights to force plaintiff to meet its burden of making out a prima facie case. However, the precise extent of that burden was necessarily shaped and framed by defendant’s proof in support of an earlier summary judgment motion.

In the Court’s decision on that earlier summary judgment motion, it considered and decided two contested points. First, the Court found that defendant had established, as a matter of law, that it had issued timely denials of plaintiff’s claims for no-fault benefits. The Court made this finding based upon an affidavit of defendant’s senior no-fault litigation examiner, attesting to defendant’s claim handling practices following receipt of no-fault claims. The denials submitted with that affidavit indicate both the date of receipt of the claim and the date of the denial’s issuance. The decision found that defendant had demonstrated, through “evidentiary proof in admissible form,” that it issued denials within 30 days of receipt of plaintiff’s claims. Accordingly, the decision concluded that defendant “timely issued its denials,” thereby eliminating the need for further proof on that point.

The Court’s decision went on to determine, however, that defendant failed to sufficiently demonstrate that the services provided by plaintiff were not medically necessary. Accordingly, [*2]the decision denied summary judgment to defendant, setting the stage for this trial.

Against this background, plaintiff presented at trial unrefuted testimony from its

medical biller, establishing a business-record foundation for introduction of plaintiff’s no-fault bills into evidence. See CPLR 4518. The bills show, among other things, the services provided by plaintiff, the date of service, plaintiff’s charges, and the date of the bill. When considered together with defendant’s previous proof as to when plaintiff’s bills were received and when they were denied, plaintiff’s evidence amply made out a prima facie case.

Contrary to defendant’s contention at trial, plaintiff did not need to submit any testimony respecting the mailing of its claims to establish their timeliness or to meet its initial burden of making out a prima facie case. By law, claims for health service expenses must be submitted to the insurer “no . . . later than 45 days after the date services are rendered.” See 11 NYCRR 65-2.4(c). The testimony from plaintiff’s medical biller laid a proper foundation for the admission of business-record proof regarding the dates plaintiff’s services were rendered. The affidavit of defendant’s senior no-fault examiner admitted receipt of the bills. That admission left open only the issue of whether the bills that defendant received were “admissible in evidence” as proof of the “transaction[s], occurance[s] or event[s]” that were documented in the bills. See CPLR 4518; see also Bajaj v. General Assurance, 18 Misc 3d 25, 27-8 (App Term, 2007). When read together with denials which set forth the dates when the claims were received, it is evident that the claims were each received within the required 45 day period. No greater proof is required in such circumstances.

Under applicable precedent, a provider can make out a prima facie case through proof that its claims were timely “mailed and received and that payment . . . was overdue.” See Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742, 742-3 (2d Dept. 2004). But nothing in the law actually mandates proof of “mailing” within 45 days. The regulations, instead, simply require that claims must be “submitted” to the insurer in a timely fashion in order to trigger the insurer’s duty to pay, deny, or seek verification of the claim. See 11 NYCRR 65-2.4(c). Consequently, plaintiff did not need to adduce proof of mailing in order to make out a prima facie case.

Moreover, on the issue of the timeliness of plaintiff’s claims, the Court properly took judicial notice of defendant’s summary judgment papers. A court may take judicial notice, sua sponte, of the court’s records and papers in a pending action. See Prince, Richardson on Evidence, §§2-202, 2-209 (11th Ed., Farrell). Those records and papers show, quite clearly, that defendant’s examiner had made affirmative representations respecting the dates defendant had received plaintiff’s claims, and effectively admitted the timeliness of plaintiff’s claims. Statements made in an affidavit may sometimes constitute informed judicial admission; such admissions may be duly considered by a trial court in determining the facts relevant to an action. See Richardson on Evidence, supra, § 8-219. This was a classic case for doing so. [*3]

The Court has carefully reviewed the decision in Bajaj v. General Assurance, supra, in reaching this conclusion. It sees nothing in that decision which precludes consideration of defendant’s prior admissions as establishing part of plaintiff’s prima facie case.

In Bajaj, the Appellate Term merely ruled that an insurer’s admitted receipt of a given claim is not tantamount to a “concession[ ] of the facts asserted in plaintiff’s claim forms . . .” 18 Misc 3d at 28. Under the logic of Bajaj, a defendant’s admitted receipt of a given claim form will not be deemed to “concede the facts set forth in the claim form with respect to the dates of service, the services rendered and the charges therefor.” Id. However, the defendant’s admission of receipt “would serve . . . to acknowledge that this was the claim form that it received.” Id.

Thus viewed, although Bajaj did not directly address whether such an admission might extend to the date that claim was received, this Court sees no logical reason why an insurer should not be bound by its own admissions as to the date of receipt of given claims. Accordingly, I concluded at trial, and reiterate in this decision, that defendant’s prior admissions eliminated the need for further proof as to when plaintiff’s claim forms were mailed. Based upon the testimony from plaintiff’s biller laying a proper foundation for submission of plaintiff’s claim forms as business records, plaintiff’s proof satisfied its burden under Bajaj respecting the facts set forth in the claim forms. Defendant’s admission of when the claims were received, in turn, proves that the claims were submitted to it in a timely fashion. Since defendant will not be allowed to repudiate its own prior admissions, the Court turns to the issue of defendant’s medical necessity defense.

Defendant’s lack of medical necessity defense contests the necessity of four MRIs – – a cervical spine MRI, a lumbar spine MRI, an MRI of claimant’s left elbow, and an MRI of claimant’s left knee. (The necessity of a fifth test, a brain MRI, was not contested at trial.)

Dr. Robert E. Costello, a chiropractor, testified in support of the defense. In his opinion, the two spine MRIs were performed prematurely and without adequate chiropractic justification. The elbow and knee MRIs, in turn, were deemed unnecessary for any chiropractic treatment. He explained that while chiropractors are allowed by law to examine a person’s extremities, they cannot treat most elbow and knee injuries. Accordingly, in Dr. Costello’s view, the established practice in such cases is to refer the patient to an orthopedist, and leave to that specialist any decisions respecting diagnostic tests such as MRIs.

Notably, medical records in evidence show that a neurologist, Dr. James N. Ligouri, examined claimant about a week before the MRIs and performed a neurologic evaluation. Based on that evaluation, his impression was that claimant was suffering from cervical and lumbosacral radiculopothy. In addition to recommending continued chiropractic care, Dr. Ligouri’s plan included MRIs of the cervical and lumbar spine. Both tests, when performed, disclosed disc herniations.

Dr. Ligouri also evaluated claimant’s left elbow. After noting claimant’s continued [*4]complaints of elbow pain and sensory loss in her left arm, Dr. Ligouri’s “impression” noted a need to rule out ulnar neuropathy. The MRI results were normal.

Other documents in evidence confirm that claimant was seen by an orthopedist after the elbow and knee MRIs were performed. The orthopedist reviewed the results of those tests in the course of making further treatment decisions. According to the orthopedist’s evaluation, the knee MRI report included findings “consistent with a tear of the anterior horn of the medical meniscus.” In view of claimant’s continued symptoms, positive clinical findings, and positive MRI findings, the orthopedist concluded that “arthroscopic surgery of [claimant’s] left knee is indicated and recommended.”

In the face of this evidence, the Court concludes that defendant has failed to prove its lack of medical necessity defense by a preponderance of evidence. Applying the test set forth in Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005), the Court finds that defendant’s peer review evidence lacked a sufficiently credible factual and medical basis, since it failed to meaningfully address the proof, cited above, that a neurologist and an orthopedist saw a need for, or relied upon, the results of the subject tests.

Accordingly, judgment is rendered for the plaintiff. Submit Judgment on Notice.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: August 31, 2010