Civil Court of the City of New York, Kings County

056025/09

Devin P. Cohen, J.

Upon review of the foregoing papers, and after oral argument, the defendant’s motion to dismiss is denied.

In this action to recover assigned first-party no-fault benefits, defendant insurance provider moves pursuant to CPLR 3211(a)(1) and (7) to dismiss all causes of action in the complaint based on plaintiff’s alleged failure to attend two duly requested Examinations Under Oath (EUOs).

CPLR 3211(a)(1)

To obtain pre-answer dismissal pursuant to CPLR 3211(a)(1), defendant must allege that its defense is fully founded upon documentary evidence. Moreover, the documentary evidence offered in that defense “must resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff’s claim” (Teitler v Max J. Pollack & Sons, 288 AD2d 302 [2d Dept 2001]). “Documentary evidence” within the meaning of CPLR 3211(a)(1), must be “unambiguous and of undisputed authenticity” (Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010] citing Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21-22). CPLR 3211(a)(1) does not anticipate or intend the use of affidavits submitted as testimony substitutes (see e.g. Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]).

Affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211” (Lawrence v Miller, 11 NY3d 588, 595 [2008]). In the context of CPLR 3211(a)(1), the narrow exception to this general rule might be affidavits used solely to establish the bona fides of other, genuinely documentary evidence. For instance, a certifying affidavit establishing a true and accurate copy of a filed deed might support a motion for dismissal under CPLR 3211(a)(1).

By its nature, the pre-answer motion to dismiss deprives the parties of the opportunity and obligation to have a trial, to exchange discovery, or for the non-moving party to have even a responsive pleading in the action. This is a drastic remedy, and should be reserved to cases which turn on an undisputed and undisputable document (e.g. a dishonored check, a deed, etc.). CPLR [*2]3211(a)(1) should not be used as a pre-answer alternative for what is more properly a request for summary judgment pursuant to CPLR 3212.

Defendant relies upon two affidavits to support the instant motion. The affidavit of Jackie Hackett describes the standard office procedure for generating and mailing verification requests, including EUO notices, as well as denials. The affidavit of calendar clerk Toyla Hogan alleges that the plaintiff failed to appear for the EUOs purportedly scheduled by the defendant. Presumably, this is the “documentary evidence” to which defendant’s motion refers.

Defendant’s affidavits are not the type of evidence required in order to succeed on a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1). Rather, defendant’s proffered affidavits are testimonial in nature. They are essentially offered as substitutes for testimony which would otherwise be offered later at trial. These testimonial affidavits are, by their nature, neither unambiguous nor of undisputed authenticity. They depend heavily on the credibility attached to them as recitations of the facts of the case. They offer only one view (or two views) of the factual narrative which underlies the claim in question.

CPLR 3211(a)(7)

Defendant further asserts that the claim should be dismissed because plaintiff’s pleading fails to state a cause of action (CPLR 3211[a][7]). Under CPLR 3211(a)(7), the applicable test is whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action (see Sokol v Leader, 74 AD3d 1180 [2d Dept, 2010]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005]). “[O]n a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated” (Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2d Dept 2001]).

As previously established, the testimonial affidavits of Ms. Hogan and Ms. Hackett are not documentary evidence as required under CPLR 3211(a)(1). More germane to a CPLR 3211(a)(7) analysis, while these affidavits, if taken as true, might bear on the merits of plaintiff’s action, they do not affect whether or not the complaint itself states a cause of action. Here, plaintiff’s complaint states a cause of action in that plaintiff claims to have properly submitted bills to defendant for acupuncture services rendered to its assignor which have not been paid. Thus, dismissal is not appropriate under CPLR 3211(a)(7).

Ripeness

Defendant seems to suggest that this action should be dismissed as premature because plaintiff has failed to comply with defendant’s verification requests scheduling the EUOs, and that the failure to comply tolls the defendant’s time to deny the claim. Pursuant to NYCRR § 65.15(h), an outstanding verification request tolls the 30 day statutory period during which defendant must pay or deny a claim. Since an insurer is not obligated to pay or deny a claim while verification requests for that claim are outstanding, any lawsuit filed during such period is deemed premature (see Vista Surgical Supplies v General Assur. Co., 12 Misc 3d 129(A) [App Term, 2d Dept 2005]; Ocean Diagnostic Imaging, P.C. v Nationwide Mutual Ins. Co., 11 Misc 3d 135(A) [App Term, 2d Dept 2006]). However, in this case, defendant admits that it issued a denial for this claim on January 28, 2008, citing plaintiff’s alleged failure to appear for the scheduled EUOs. Having denied the claim, [*3]defendant essentially invited the plaintiff’s subsequent proceedings to challenge the denials.

For the reasons stated, defendant’s motion is denied. The plaintiff shall serve a copy of this decision and order on defendant’s counsel, with notice of entry. Defendant shall serve and file an answer in this matter within 30 days of plaintiff’s service of this order. This constitutes the decision and order of this court.

Civil Court of the City of New York, Kings County

141235/2008

Law Offices of Teresa M. Spina, Attorneys for Defendant,

Geico Indemnity Company, 170 Froehlich Farm Blvd, Woodbury, NY 11797

Moshe D. Fuld, P.C., Attorney for Plaintiff, 38 West 32nd Street, 7th Fl, New York, NY 10001

Reginald A. Boddie, J.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by Order to Show Cause to consolidate this matter with forty-five other pending cases commenced by the same provider against the defendant, to amend its answer to include a fraudulent incorporation defense, for additional discovery, and for a stay pending resolution of this issue in all the cases. Plaintiff opposed the motion and seeks costs and sanctions.

Defendant alleged that plaintiff provider, Urban Radiology, is ineligible for reimbursement of no-fault benefits, under Insurance Law § 5102 (a) (1), because at the time services were rendered plaintiff was fraudulently incorporated, in violation of Business Corporation Law §§ 1503, 1507,1508, and Education Law §§ 6530 and 6531. Courts have previously held that fraudulent incorporation is not a precluded defense and constitutes a complete bar to recovery under the no-fault insurance regulations (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; AB Medical Services PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [2006]).

In brief, defendant asserted that “Although Dr. Rigney is listed as the owner of Urban Radiology, P.C. according to the Office of Professions of New York State, it is possible that he may not in fact be the true’ owner of Urban Radiology, P.C. The instant UCC filing demonstrates that Ocean MRI, Inc. exerts total control of the proceeds and profits of Urban Radiology, P.C.” (affirmation of Eileen Hopkins ¶ 16). Defendant further alleged that Dr. Rigney was owner of JRWB Diagnostic Imaging, P.C., which also conducts MRIs, and that in [*2]January 1999 an arbitrator determined that Ocean MRI and David Batisyan were the true owners (affidavit of Eileen Hopkins ¶ 18). Accordingly, defendant requested depositions of Dr. John T. Rigney and Mr. Aleksander Kamsan, the former billing manager, with respect to all of plaintiff’s cases pending in this Court (Id. at ¶ 27).

During oral argument of this motion, defendant conceded that the cases are at various stages of litigation, including some which are already scheduled for trial, and that the facts differ in each case, except that the services were rendered by the same provider.

Consolidation

Civil Practice Law and Rules § 602 (a) provides for consolidation of actions in appropriate circumstances as follows:

When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

However, consolidation is highly disfavored by courts in no-fault insurance cases. Generally, no-fault benefit claims may not be consolidated unless the facts and circumstances arise from a common accident. (Metro Medical Diagnostics, P.C. v Motor Vehicle Accident Indemnity Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [2005]; Poole v Allstate Ins. Co., 20 AD3d 158, 519 [2d Dept 2006] (holding it would be an improvident exercise of discretion not to sever forty-seven claims where a single trial of claims would prove unwieldy and confuse the trier of fact.) Here, defendant cannot establish that the no-fault cases arose from a common set of facts or accident as grounds for consolidation. Instead, defendant seeks to proceed on the basis that the claims share a common question of law.

The identical issue was presented in a case decided by the Appellate Term in 2008 (S & B Neurocare, P.C. v Geico, 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [2008]). There, the defendant also sought to consolidate all pending cases between the parties and assert a fraudulent incorporation defense. The court denied the motion, holding that merely alleging a medical provider is fraudulent fails to create sufficient questions of law and fact to justify consolidation. (id.) The court also upheld the denial of defendant’s motion to compel discovery because “[d]efendant failed to submit an affidavit specifying any facts entitling it to pretrial proceedings almost a year after the notice of trial was filed” (id.; see also New York City Civ Ct Act § 208.17 [d]).

Similarly, the facts here clearly militate against consolidation. The cases are all at unspecified stages of litigation. Although defendant failed to set forth the procedural posture of each case, defendant acknowledged that many of the cases had proceeded past discovery and were noticed for trial. Notably, plaintiff stated, “Most cases the defendant seeks to consolidate have had a Notice of Trial filed, and the defendant is precluded from demanding additional [*3]discovery therein” (affirmation of Michael Reich ¶ 16). Consequently, it would be unwieldy to join the cases and clearly prejudicial to the plaintiff. Furthermore, defendant ‘s underlying premise for alleging fraudulent incorporation, on these facts, is speculative. For the reasons set forth herein, consolidation is inappropriate and therefore denied.

Stay

Defendant also sought a stay pursuant to CPLR 2201, pending the outcome of discovery and a hearing on the alleged fraudulent incorporation defense. Defendant averred that a stay is necessary to maintain the status quo, to promote judicial economy and in the interests of justice (affirmation of Eileen Hopkins ¶ 34).

CPLR 2201 provides, “[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” A search revealed no cases where the Civil Court issued a stay of multiple actions, in similar circumstances, pending further discovery and the hearing of a Mallela claim. However, where relief was requested in the Supreme Court seeking a stay of Civil Court proceedings, the court treated these motions as motions for preliminary injunction. (see St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145[A], 2007 NY Slip Op 51154[U] [2007]; New York Central Mutual Ins. Co. v McGee et al, 25 Misc 3d 1232[A], 2009 NY Slip Op 52385[U] [2009].)

To prevail on an application for preliminary injunction, the moving party must demonstrate a probability of success on the merits, danger of irreparable harm in the absence of being granted relief and a balance of equities in its favor (St. Paul Travelers at *7). Here, defendant clearly did not meet this test. Defendant has not established that it can properly assert a claim of fraudulent incorporation. Defendant also cannot establish irreparable harm since proof of fraud is an absolute defense to a claim for payment; nor can defendant demonstrate a balance of equities in its favor at this juncture in the litigation.

Nevertheless, the parties need not be held to the elevated standard of a preliminary injunction since, unlike the requests in St. Paul Travelers and New York Central Mutual, the defendant here does not seek to have this court stay proceedings pending in another court (15 Misc 3d 1145[A]; 25 Misc 3d 1232[A]). As such, defendant is not required to show that it would be entitled to preliminary injunction (Siegal, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2201:2).

As the Court of Appeals artfully noted in Mallela,

The [no fault] regulatory scheme, however, does not permit abuse of the truth seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (see 11 NYCRR65-3.2 [c]). In the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do. (Mallela, 4 NY3d 313 [2005].) [*4]

Here, defendant’s statement that, “Although Dr. Rigney is listed as the owner of Urban Radiology, P.C. according to the Office of Professions of New York State, it is possible that he may not in fact be the true’ owner of Urban Radiology, P.C.” is insufficient to show that defendant has a good faith basis to allege that Dr. Rigney is not the owner of Urban Radiology. Defendant has presented no affidavits or documents which address the issue of the alleged fraud with any certainty. Rather, defendant moved this court to stay the actions in order to explore the possibility of fraud. Consequently, this court declines to grant a discretionary stay in circumstances where, as here, the defendant’s request for relief is based almost entirely on speculation rather than specific testimonial or documentary proof. (see St. Paul Travelers at *7.) Accordingly, defendant’s request for a stay is denied. Defendant may renew its request in the individual cases, as appropriate, upon presentation of additional proof consistent with this decision.

Leave to amend the answers and permit additional discovery

Finally, defendant requested leave to amend its answers and for additional discovery. CPLR 3025 (b) commits the grant or denial of such leave to the trial court’s discretion (Edenwald Contracting, 60 NY2d at 959, citing Murray v City of New York, 43 NY2d 400, 404-05 [1977]; Thomson v Suffolk County Police Dept., 50 AD3d 1015 [2d Dept 2008]). It provides that leave “shall be freely given upon such terms as may be just” (CPLR 3025 [b]).

In other words, the court should freely grant leave to amend a pleading based on the facts and circumstances of each case and where there is no significant prejudice or surprise to the non-moving party (Sewkarran v DeBillis, 11 AD3d 445 [2d Dept 2004]). However, the evidence submitted in support of the motion must indicate that the amendment may have merit (Edenwald Contracting, 60 NY2d at 959; Ingrami v Rover, 45 AD3d 806, 808 [2007]). Where the proposed amendment is “palpably insufficient or patently devoid of merit,” the court should deny leave to amend (Yemini v Goldberg, 46 AD3d 806 [2d Dept 2007] (citations omitted); Beja v Meadowbrook Ford, 48 AD3d 495 [2d Dept 2008]).

CPLR 3101 governs disclosure and requires “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (CPLR 3101 [a]). The court has previously held that, under appropriate circumstances, a party may move to seek additional discovery for the purpose of supporting a Mallela claim, pursuant to CPLR 3101 (a) (One Beacon Ins. Group, LLC v Midland Medical Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). In instances where such discovery is sought, movant is not required to show “good cause,” but rather that the documents sought are “material and necessary in the prosecution” of the action (CPLR 3101 [a]; One Beacon at 741 (citations omitted)).

Here, the court is unable to determine whether leave to amend and for additional discovery is appropriate, or in which cases it may be appropriate, as defendant has failed to articulate details regarding the procedural posture of each case. In any event, in as much as the court has declined to consolidate the cases, these issues need not be determined. Accordingly, the requests for leave to amend and for additional discovery are denied without prejudice to [*5]renew upon a proper showing in each case.

Other relief

Defendant’s remaining requests for relief are premature, and therefore not addressed. Plaintiff’s requests for costs and sanctions are denied.

This constitutes the Decision and Order of the Court.

Dated: August 23, 2010

________________________

Reginald A. Boddie

Civil Court of the City of New York, Kings County

02097/08

The plaintiff was represented by Melissa Betancourt, Esq., 155 Kings Highway, Brooklyn, NY 11223-1036, 718.336.8076. The defendant was represented by Kylie A. Higgins, Esq. of the Law Offices of Teresa M. Spina, 170 Froehlich Farm Boulevard, Woodbury, NY 11797, 516.714.7727.

Genine D. Edwards, J.

In an action to recover assigned first party no-fault benefits, defendant seeks leave to amend its answers, strike the notices of trial, and compel discovery, including a deposition. It also seeks to consolidate all nineteen (19) captioned actions. Plaintiff opposes the order to show cause.

BACKGROUND

Defendant argues that plaintiff fraudulently billed for medical services it allegedly rendered to [*2]its assignors.^[FN1] Though defendant admits that it did not deny plaintiff’s bills on the basis of fraudulent billing, it maintains that it has a cause of action to recover benefits paid under a theory of fraud or unjust enrichment.^[FN2] Defendant therefore seeks leave to amend its answers to interpose counterclaims for fraud and unjust enrichment.

Upon such amendment, defendant argues that the notices of trial and certificates of readiness for the captioned actions must be vacated, and the matters stricken from the trial calendar because discovery, including a deposition is warranted with respect to plaintiff’s billing practices. Defendant also seeks consolidation of the captioned actions, arguing that discovery on its counterclaims for fraud and unjust enrichment involve common questions of law and fact.

In opposition, plaintiff asserts that it responded to defendant’s discovery demands and defendant fails to indicate how depositions would provide more relevant information than the responses and documentation previously provided. Plaintiff further alleges that leave to amend the answers must be denied because defendant did not submit an affidavit from a qualified individual with personal knowledge of the subject claim. It argues that the affidavit from Ellen Dargie, a supervisor in defendant’s medical billing unit, who prepared a spreadsheet of the bills plaintiff submitted to defendant for the years 2007 and 2008, does not affirmatively state that plaintiff engaged in fraudulent billing. Finally, plaintiff contends that defendant is attempting to set forth a defense that it is precluded from asserting.

DISCUSSION

Pursuant to CPLR § 3025(b), a party may amend its pleading at any time by leave of the Court. See NY CPLR § 3025(b); Murray v. City of New York, 43 NY2d 400, 401 NYS2d 773 (1977); Cornell Med., P.C. v. Mercury Cas. Co., 24 Misc 3d 58, 884 NYS2d 558 (App. Term, 2d Dept. 2009); Perini Corp. v. City of New York (Honeywell Street and Queens Blvd. Bridges), 27 Misc 3d 813, 897 NYS2d 860 (Sup. Ct. NY County 2010). Leave shall be freely given provided the proposed amendment is not palpably insufficient or patently devoid of merit. See Thomas Crimmins Contr. Co. v. City of New York,74 NY2d 166, 544 NYS2d 580 (1989) (“Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore properly denied.”); Kuslansky v. Kuslansky, Robbins, Stechel and Cunningham, LLP, 50 AD3d 1101, 858 NYS2d 212 (2d Dept. 2008); Lucido v. Mancuso, 49 AD3d 220, 851 NYS2d 238 (2d Dept. 2008) (“Where the proposed amended pleading is palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause prejudice or surprise, the motion should be denied.”); Uptodate Med. Servs, P.C. v. State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 879 NYS2d 695 (App. Term, 2d, 11th & 13th Jud. Dists. 2009) (“The court must examine the merits of the cause of action or defense to be asserted in the proposed amendment since leave to amend should not be granted where the cause of action or defense to be asserted is totally without merit or is palpably insufficient as a matter of law.”).

In the no-fault context, a healthcare provider shall receive payment for services rendered to [*3]

patients whose injuries arise from covered motor vehicle accidents. The insurance carrier has 30 days from the date of receipt of the claim to pay or deny it in whole or in part. See 11 NYCRR 65-3.4; New York & Presbyterian Hosp. v. Progressive Casualty Ins. Co., 5 AD3d 568, 774 NYS2d 72 (2d Dept. 2004); Jesa Medical Supply, Inc. v. American Transit Ins. Co., —- NYS2d —-, 2010 NY Slip Op. 20231 (Civ Ct. Kings County 2010). The law requires a claim for no-fault benefits to be timely and properly denied. See Careplus Med. Supply, Inc. v. Selective Ins. Co. of Am., 25 Misc 3d 48, 890 NYS2d 258 (App. Term, 2d Dept. 2009). In other words, “all bases that an insurer has for denying a no-fault claim, except for specific and limited exceptions, must be raised in a timely denial.” Lincoln General Ins. Co. v. Alev Medical Supply, Inc., 25 Misc 3d 1019, 887 NYS2d 490 (Dist. Ct., Nassau County 2009). See also Fair Price Medical Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 860 NYS2d 71 (2008); PDG Psychological P.C. v. Utica Mut. Ins. Co., 11 Misc 3d 128(A), 815 NYS2d 496 (App. Term, 2d & 11th Jud. Dists. 2006) (An untimely denial precludes an insurance carrier from raising most defenses at the trial.); Devonshire Surgical Facility v. GEICO, 14 Misc 3d 1208(A), 836 NYS2d 484 (Civ. Ct., NY County 2006); Alev Medical Supply, Inc. v. Progressive Ins. Co., 27 Misc 3d 1220, 2010 NY Slip Op. 50813(U) (Dist. Ct., Nassau County 2010) (An insurance carrier is precluded from asserting any “precludable” defense not asserted in a timely denial.). Fraudulent billing is precluded as a defense unless it is raised in a timely denial. See Fair Price Med. Supply Corp., 10 NY3d at 564-565; Careplus Med. Supply, Inc., 25 Misc 3d at 49 (The defense of provider fraud is precluded if not timely and properly asserted.); M. G. M. Psychiatry Care, P.C. v. Utica Mut. Ins. Co., 12 Misc 3d 137(A), 824 NYS2d 763 (App. Term, 2d & 11th Jud. Dists. 2006) (Fraud defense whether premised on fraudulent billing, excessive medical treatment or otherwise is subject to the preclusion sanction.).

Herein, defendant’s counterclaims for fraud and unjust enrichment are palpably insufficient and patently devoid of merit because the claims were not denied on the grounds of fraudulent billing. They were paid in part and denied in part based upon medical necessity and the charges not being in accordance with the fee schedule. Further, the denials were submitted for the first time in defendant’s reply papers, without an affidavit attesting that the denials were timely mailed to plaintiff pursuant to a standard office practice or procedure. See Rengifo v. City of New York, 7 AD3d 773, 776 NYS2d 865 (2d Dept. 2004) (Defendant cannot rely on documents submitted for the first time in its reply papers.); Fair Price Med. Supply v. Liberty Ins. Co., 12 Misc 3d 145(A), 824 NYS2d 762 (App. Term, 2d & 11th Jud. Dists. 2006) (Defendant failed to establish a timely denial via an affidavit by one with personal knowledge that the denial of claim form was timely mailed or an affidavit containing a sufficiently detailed description of standard office mailing procedure to give rise to the presumption of timely mailing.). As all evidence indicates that the counterclaims pertain to a precluded defense, defendant may not assert them in an amended answer. See Cornell Med., P.C., 24 Misc 3d at 60 (App. Term, 2d Dept. 2009) (“In our opinion, since defendant’s proposed counterclaim [for unjust enrichment] pertains to a defense which is precluded due to defendant’s untimely denials, the Civil Court properly denied the branch of defendant’s motion seeking leave to amend the answer to assert the counterclaim.”).

In reading Judge Engoron’s decision in, Quality Psychological Services, P.C. v. GEICO Ins. Co., Index No.47851/08, Civil Court, Bronx County, dated July 22, 2010, published in the New York Law Journal, August 3, 2010, in conjunction with other decisions discussing no-fault law, this Court is persuaded that the instant matters smack of fraud and unjust enrichment considering the compilation of plaintiff’s bills annexed to Ms. Dargie’s affidavit. However, this Court must follow the law set forth by the Court of Appeals. See Fair Price Medical Supply Corp., 10 NY3d at [*4]564-565. To be quite frank, the buck stops at the insurance carriers upon the receipt of claims for no-fault benefits. Insurance carriers concerned about fraudulent claims must use the verification process to obtain additional information. It behooves GEICO and all other insurance companies to diligently investigate the claims and submit well-thought out denials within the time allotted by the Legislature,^[FN3] until such time as the law is amended.

Accordingly, defendant’s application to amend the answers is denied. Thus, the remaining parts of the order to show cause to strike the notices of trial, compel discovery^[FN4] including a deposition, and to consolidate^[FN5] all nineteen (19) captioned actions are denied as moot.

The order to show cause is denied in its entirety.

This constitutes the decision and order of the Court.

Dated: August 16, 2010____________________________

Genine D. Edwards

Judge of Civil Court

Footnotes

Footnote 1: Specifically, defendant alleges that in one day plaintiff’s treating psychologists performed medical services that amounted to more than 24 hours of testing.

Footnote 2: Defendant paid-in-part and denied-in-part plaintiff’s claims for no-fault benefits. Thus, the counterclaims are based upon plaintiff having obtained partial payments for services rendered.

Footnote 3: “While the 30-day period plus any applicable tolls for paying or denying a claim may be too short a time frame in which to detect billing fraud, any change is up to the Legislature.'” Lincoln General Ins. Co. v. Alev Medical Supply, Inc., 25 Misc 3d at 1022 (quoting Fair Price Med. Supply Corp.,10 NY3d at 565.).

Footnote 4: Discovery may not be obtained regarding matters that are not in issue at trial. See Alev Medical Supply, Inc. v. Progressive Ins. Co., 27 Misc 3d 1220, 2010 NY Slip Op. 50813(U) (Dist. Ct., Nassau County 2010).

Footnote 5: Pursuant to CPLR § 602(a), the Court may consolidate actions involving common questions of law or fact. See Whiteman v. Parsons Transp. Group of New York, Inc., 72 AD3d 677, 900 NYS2d 87 (2d Dept. 2010). Consolidation is usually granted where the issues in the action sought to be consolidated are identical or essentially the same or if it will result in a complete disposition of all claims arising out of the same transaction or incident in one action. Defendant sought consolidation to obtain discovery on its counterclaims for fraud and unjust enrichment. Since leave to amend the answer to interpose the counterclaims was denied, defendant may not obtain consolidation. Moreover, without the amendment defendant cannot consolidate the nineteen captioned actions because the evidence demonstrates that although the actions were brought by a single assignee, the causes of action arose from different automobile accidents on various dates in which unrelated assignors suffered diverse injuries and required different medical treatment. See Poole v. Allstate Ins. Co., 20 AD3d 158, 799 NYS2d 247 (2d Dept. 2005).

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered December 4, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 on the ground that the services billed for were not medically necessary. In opposition to the motion, plaintiff’s attorney argued that defendant had failed to make a prima facie showing of its entitlement to judgment as a matter of law. The Civil Court denied the motion and defendant appeals.

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant’s independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant’s moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant’s motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

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

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
HILLCREST RADIOLOGY ASSOCIATES [*2]
a/a/o DENNYS BARCCO,

Respondent,

-against-
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

Appellant.

Golia, J., concurs in part and dissents in part and votes to modify the order to provide that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover for the MRIs of plaintiff’s assignor’s shoulder and knee is granted, in the following memorandum:

I concur with the majority in affirming that part of the Civil Court order which denied defendant’s motion for summary judgment as it relates to the MRI of plaintiff’s assignor’s cervical spine. As stated in the majority’s decision, “defendant’s independent medical examination report . . . found . . . the MRI to be medically necessary.” Inasmuch as this directly contradicted defendant’s peer review report, I agree that defendant is not entitled to summary judgment as regards this MRI study.

My review of the file does not reflect any “other reports that contradicted facts set forth in the peer review report.”

In addition, it should be noted that plaintiff has failed to submit an affidavit by a doctor, nurse or trained medical personnel of any kind to contradict or rebut the finding set forth in the peer review report. Indeed, the only medical opinion of any kind that contradicts the peer review report is that of defendant’s doctor who conducted the independent medical examination (IME) regarding the cervical MRI. As stated earlier, I concur with the majority in finding that defendant’s own IME doctor has properly raised an issue of fact preventing the court from granting summary judgment but only as to that MRI study.

However, there is no such issue of fact raised by any competent medical affiants as regards the remaining two MRIs of the left shoulder and left knee. It is beyond the ken of plaintiff’s counsel to reach “contrary” medical conclusions when not presented with “contrary” medical evidence.

Accordingly, I would modify the order to provide that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover for the MRIs of plaintiff’s assignor’s shoulder and knee is granted.
Decision Date: August 13, 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 (Kathryn E. Freed, J.), entered January 13, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment on the ground that plaintiff had failed to appear for two scheduled examinations under oath (EUOs).
Plaintiff opposed the motion and cross-moved for summary judgment, arguing, among other things, that defendant’s denial of plaintiff’s claims should be held to be untimely in that defendant had failed to establish the timely mailing of the EUO scheduling letters and also had failed to establish that plaintiff did not appear for the EUOs. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish the timely mailing of the denial of claim forms and the EUO scheduling letters, and also had failed to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant ensued.

Contrary to the Civil Court’s findings, defendant established the timely mailing of the EUO scheduling letters. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 [*2]Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of the plaintiff at an EUO 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 at 722), the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint. We note that, contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant timely mailed its denial of claim forms.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

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

I would affirm the order of the Civil Court. While an examination under oath (EUO) is mandated when timely requested by the insurance carrier, here defendant failed to present an affidavit from anyone with personal knowledge that the plaintiff did not appear for the EUO. Contrary to the finding by the majority, defense counsel fails to explain how he knows that plaintiff failed to appear for the EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Decision Date: August 12, 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 (Richard Velasquez, J.), entered October 15, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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, arguing that it had timely denied plaintiff’s claim on the ground of lack of medical necessity and that, based on an annexed affirmed peer review report, it had established that the medical supplies
provided were not medically necessary. In opposition to the motion, plaintiff argued that defendant had failed to establish the timely mailing of its denial of claim form and
that defendant had failed to annex copies of the medical reports and/or records upon which the peer reviewer had relied in reaching his conclusion that the supplies provided were not medically necessary. The Civil Court granted defendant’s motion, finding that plaintiff had failed to rebut defendant’s showing of a lack of medical necessity.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claim at issue on the ground of lack of medical necessity (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]). Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided (see e.g. 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 & [*2]11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment.

In opposition to the motion, plaintiff failed to raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (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]). While plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, plaintiff failed to demonstrate that it needed said documents in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; 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 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]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 12, 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, Queens County (Diane A. Lebedeff, J.), entered February 5, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover the sum of $25,000 in assigned first-party no-fault benefits, defendant insurance company moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor’s injuries were preexisting, chronic or progressive degenerative conditions which did not result from the subject accident. The occurrence which forms the subject matter of this action took place on March 20, 2007. On June 12, 2007, plaintiff, an orthopedic surgeon, performed “anterior cruciate ligament reconstruction with suprapateller pouch and tendon left knee partial debridement, medial meniscectomy [and] left medial arthroscopic patellofemoral condoplasty” on plaintiff’s assignor at the Hospital for Special Surgery, for which he submitted a claim for $25,900. The claim was denied based upon an independent peer review on July 11, 2007 advising that the left knee injury was unrelated to the accident.

In support of its motion for summary judgment, defendant submitted, among other things, affirmed peer review reports and an “independent radiology report” of the MRI images of the affected area, which identified degenerative processes accounting for the conditions treated by plaintiff. In opposition, plaintiff submitted an affidavit from plaintiff’s president, a “board-certified” surgeon, who had performed the procedure. After defendant served reply papers in further support of the motion, plaintiff served a sur-reply, which contained a more detailed affidavit executed by the doctor. The Civil Court denied defendant’s motion, finding that plaintiff had raised issues of fact. This appeal by defendant ensued.

We note, at the outset, that plaintiff’s “Supplemental Affirmation in Opposition” is, in reality, a sur-reply, for the submission of which no showing of “good cause” had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d
463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). “It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate” (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant’s papers established, prima facie, based on objective medical evidence, that the assignor’s injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: August 02, 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, Queens County (Diane A. Lebedeff, J.), entered April 29, 2009. The order denied plaintiff’s motion to vacate a prior order which had granted on default defendant’s motion to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action in July 2002 to recover assigned first-party no-fault benefits. Issue was joined in September 2002, and there was no further activity in relation to the litigation until March 2007, when defendant served on plaintiff’s counsel of record a 90-day demand pursuant to CPLR 3216 (b). Plaintiff did not respond to the demand, and, by order entered November 24, 2008, the Civil Court granted defendant’s motion pursuant to CPLR 3216 (a) to dismiss the complaint for failure to prosecute, upon plaintiff’s default in opposing the motion. Thereafter, plaintiff moved to vacate the November 24, 2008 order, alleging that it had no notice of the motion, the papers having been improperly served on plaintiff’s former counsel, who had been replaced as counsel by present counsel in May 2003. The Civil Court denied the motion, citing plaintiff’s failure to produce a consent to change attorney form executed by plaintiff or to file said form with the Civil Court. Plaintiff appeals and we affirm.

If a notice of change of attorney form was executed in 2003, there is no proof that it was filed with the Civil Court at any time prior to defendant’s service of the 90-day demand in March 2007 (see CPLR 321 [b]; Moustakas v Bouloukos, 112 AD2d 981, 983 [1985]). Plaintiff’s present counsel does not claim that he communicated with defendant or its counsel during that four-year period, nor do any grounds appear on this record to support an inference that defendant was aware of the change of counsel, thereby rendering the filing requirement a mere “formality,” [*2]which may be disregarded (Bevilacqua v Bloomberg, L.P., 70 AD3d 411, 412 [2010]). Consequently, the counsel on whom defendant served its 90-day demand remained the counsel of record, and service of the demand and of the subsequent motion to dismiss on said counsel was proper (Stancage v Stancage, 173 AD2d 1081 [1991]), as was the order dismissing the complaint on plaintiff’s default in opposing defendant’s motion to dismiss. Under the circumstances, the noncompliance with the filing and notice requirements of CPLR 321 (b) represented no mere neglect of formalities, but the failure to transfer representation to new counsel (Splinters, Inc. v Greenfield, 63 AD3d 717, 719 [2009]; Hawkins v Lenox Hill Hosp., 138 AD2d 572, 573 [1988]; Moustakas v Bouloukos, 112 AD2d at 983; see Weinstein-Korn-Miller, NY Civ Prac ¶ 321.11 [2d ed]).

Accordingly, the order denying plaintiff’s motion to vacate the order dismissing the complaint is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 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 August 5, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands, to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order.

ORDERED that the order is modified by providing that defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands is granted to the extent of compelling plaintiff to provide the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection within 60 days of the date of this decision and order; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to compel plaintiff to provide discovery and to produce its owner, Valentina Anikeyeva, for an examination before trial. The Civil Court denied plaintiff’s motion for summary judgment as premature and granted defendant’s cross motion to compel plaintiff to provide discovery to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant argued in opposition to plaintiff’s summary judgment motion that the motion must be denied since there were “outstanding discovery demands,” to wit, its notice for an examination before trial and its supplemental demand for discovery and inspection. The Civil [*2]Court’s order did not compel plaintiff to appear for an examination before trial and defendant has not cross-appealed. As the order only compelled plaintiff to provide written verified discovery responses to all of defendant’s written demands, only those items sought in defendant’s supplemental demand for discovery and inspection are addressed herein.

Since the supplemental demand for discovery and inspection was served on plaintiff’s counsel on October 12, 2007, and plaintiff failed to challenge the propriety of such demand for discovery and inspection within the time prescribed by CPLR 3122, plaintiff is obligated to produce the information sought therein except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). The record reveals that, in opposition to plaintiff’s motion and in support of its cross motion, defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible, as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), to recover assigned no-fault benefits, a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records and management agreements, defendant will be able to ascertain whether plaintiff is ineligible to recover assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

We note that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns (see CPLR 3101 [a]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is entitled to discover the information sought in item 6.

However, to the extent that defendant seeks, in item 5, to compel the production of Ms. Anikeyeva’s personal income tax returns, defendant has failed to establish its entitlement to such documents. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s personal income tax returns are properly discoverable, particularly since defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Likewise, at this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s bank account statements, “bank account registers, cancelled checks and ledger” are “material and necessary” (CPLR 3101 [a]) to the defense of this action (see Altidor, 22 AD3d 435; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51636[U] [App Term, 1st Dept 2009]; cf. Dore, 264 AD2d 804). Accordingly, [*3]defendant is entitled to the information sought in items 12 and 13, solely with respect to plaintiff.

Item 7 seeks a copy of the assignment. However, defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, because defendant is now precluded from litigating the validity of the assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]), defendant’s demand for a copy of the assignment is palpably improper.

Finally, item 11 seeks expert witness disclosure. In view of the fact that CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information within any specifically restricted time limit, plaintiff should not be compelled to respond to item 11 at this juncture.

Accordingly, defendant is entitled to the production of the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection.

We note that, contrary to plaintiff’s contention, the Civil Court properly held that plaintiff’s motion for summary judgment was premature pending the completion of discovery (see CPLR 3212 [f]; Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637 [2010]). Plaintiff’s remaining contention lacks merit.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010

[*1]

Civil Court of the City of New York, Kings County, July 27, 2010

APPEARANCES OF COUNSEL

Israel, Israel & Purdy LLP, Great Neck (Josephine Lupis-Usinger of counsel), for plaintiff. Peknik Peknik & Schaefer LLC, Long Beach (Matthew Bruzzese of counsel), for defendant.

{**29 Misc 3d at 367} OPINION OF THE COURT

Pamela L. Fisher, J.

Plaintiff, John Giugliano, DC, P.C., assignee of Laura Hebenstreit,{**29 Misc 3d at 368} instituted this action to recover first party no-fault benefits from defendant Merchants Mutual Ins. Co. A trial was held before this court on June 30, 2010. After considering and evaluating the trial evidence and upon weighing and assessing the credibility of the witnesses, the court makes the following findings of fact and conclusions of law.

At trial, the parties stipulated that plaintiff established its prima facie case, that defendant established timely denials, and that the bills, denials, and underlying medical records would be admitted into evidence. The sole issue remaining for trial was whether plaintiff was entitled to recover for the claims submitted based on the New York Workers’ Compensation Medical Fee Schedule (hereafter “Fee Schedule”).

As stated in Roberts Physical Therapy, P.C. v State Farm Mut. Auto Ins. Co. (14 Misc 3d 1230[A], 2006 NY Slip Op 52565[U], *2 [Civ Ct, Kings County 2006]), in order

“[t]o contain the cost of providing medical services to patients treated under New York’s No-Fault law, the state legislature set limits on the fees health care providers may charge patients who sustain injuries . . . by incorporating into the no-fault scheme the fee [*2]schedules established by the Worker’s Compensation Board for industrial accidents.”

The Fee Schedule is divided into seven sections: Introduction and General Guidelines, Evaluation and Management, Anesthesia, Surgery, Radiology, Pathology and Laboratory, Medicine, and Physical Medicine. The Fee Schedule also contains a chiropractic fee schedule section, and a psychology fee schedule section. Each of these sections lists a variety of medical procedures and assigns to each procedure a number known as a current procedural terminology registry code (hereinafter CPT code). In the instant matter, plaintiff, a licensed chiropractor, submitted bills indicating that manipulation of spine under anesthesia (CPT code 22505) and closed treatment of mandibular fracture with manipulation (CPT code 21451) were performed on the assignor. The CPT codes which plaintiff utilized in billing are listed in the surgery section of the Fee Schedule. Dr. Macki was identified as the primary surgeon and Dr. Giugliano was identified as the co-surgeon for the procedures.

Defendant called Laurene Skeffington, a compliance analyst, to testify regarding whether plaintiff properly billed for the services pursuant to the Fee Schedule. Ms. Skeffington testified that it was not appropriate for a chiropractor to utilize the surgical fee schedule even when the procedures performed are not{**29 Misc 3d at 369} listed under the chiropractic fee schedule. She also testified that it was not appropriate to bill CPT code 22505 twice regardless of the fact that both the thoracic and cervical spine were treated.

Plaintiff called Dr. John Giugliano as a rebuttal witness. Dr. Giugliano testified that as the procedures performed, manipulation of spine under anesthesia and closed treatment of mandibular fracture with manipulation, are not listed under the chiropractic fee schedule it was appropriate for them to be billed utilizing the CPT codes listed in the surgery section of the Fee Schedule. Dr. Giugliano stated that it was permissible for CPT code 22505 to be billed twice as two separate areas were treated, namely the thoracic and cervical spine. Dr. Giugliano testified that the procedures required the participation of two doctors and that he served as co-surgeon during the procedures.

It should be noted that the surgery section of the Fee Schedule denotes different percentages of payment based on whether a participating surgeon is acting as a “Surgical Assistant” or a “Co-Surgeon.” A surgical assistant bills at 16%, while co-surgeons are directed to apportion billing in relation to the responsibility and work done. (See New York Workers’ Compensation Fee Schedule, Surgery, at 4.) Defendant’s witness did not offer testimony regarding whether plaintiff should have billed as a surgical assistant or a co-surgeon. Plaintiff’s rebuttal witness, Dr. Giugliano, testified that the classifications are interchangeable and he was entitled to bill as a co-surgeon. Absent proof to the contrary, the court finds that plaintiff was entitled to bill as a co-surgeon under the Fee Schedule.

With respect to plaintiff utilizing the surgery CPT codes, the court finds that plaintiff successfully rebutted defendant’s testimony and plaintiff was entitled to use these CPT codes as the procedures were not listed under the chiropractic fee schedule. When a charge for a reimbursable service has not been scheduled by the superintendent, then the provider shall establish a fee consistent with other fees for comparable procedures shown in such schedule subject to review by the insurer. (Id.; see also Studin v Allstate Ins. Co., 152 Misc 2d 221 [Suffolk Dist Ct 1991].) Therefore, the court finds that plaintiff established that the procedures were properly billed pursuant to the Fee Schedule and plaintiff is entitled to be reimbursed for the services performed.{**29 Misc 3d at 370}

Judgment in favor of the plaintiff in the amount of $2,980.58 plus costs, disbursements, [*3]statutory interest and statutory attorneys fees.