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

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