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 (Anna Culley, J.), entered January 23, 2009. The order denied defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action.

ORDERED that the order is reversed without costs and defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing plaintiff’s second and third causes of action on the ground that the services rendered to plaintiff’s assignor for which plaintiff sought payment were not medically necessary.
Plaintiff opposed the motion, and the Civil Court denied the motion, finding that there was a question of fact as to medical necessity.

Defendant made a prima facie showing of its entitlement to partial summary judgment dismissing plaintiff’s second and third causes of action by establishing that it timely denied the claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), on the ground of lack of medical necessity, and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for the doctor’s opinion that the medical services provided to plaintiff’s assignor were not medically necessary [*2](see 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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]). Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were “essential to justify opposition” to defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]).

Accordingly, defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; 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]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 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 9, 2009, deemed from a judgment of the same court entered February 17, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 9, 2009 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment, finding that the action was premature as a result of plaintiff’s failure to provide requested verification. This appeal by plaintiff ensued.
The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, plaintiff’s sole argument is that defendant failed to prove that it had properly requested verification pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.5 (b) and § 65-3.6 (b), because it had only annexed its follow-up verification request as an exhibit to its cross motion and had failed to submit a copy of its initial verification request. We disagree. Defendant’s claims examiner explained that when a provider fails to comply with a verification request, defendant’s regular course of business is to stamp the original request with the words “second notice” and insert the date of the second notice. The verification request annexed as an exhibit was dated December 24, 2007 and bore a stamp of the words “second notice” and the date, January 28, 2008. Therefore, without reaching the question of whether defendant was even required in the first instance to annex its verification requests to its cross motion papers, we reject plaintiff’s argument that defendant failed to annex a copy of its initial verification request. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. [*2]
Decision Date: March 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 15, 2008. The judgment, entered pursuant to so much of an order of the same court entered June 20, 2008 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of said causes of action, awarded plaintiff the principal sum of $3,169.96.

ORDERED that the judgment is reversed without costs, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court, Queens County for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied defendant’s cross motion for summary judgment. A judgment was entered in favor of plaintiff in the principal sum of $3,169.96. Defendant appeals from the judgment.

Defendant argues that plaintiff did not establish a prima facie case since the affidavit of plaintiff’s billing manager failed to establish that the bills in question were mailed and that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, the affidavit sufficiently established the mailing of plaintiff’s bills (see [*2]Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Defendant further argues that plaintiff had no standing to bring the instant action since the assignment of benefits form was defective in that it was signed by a minor. However, since defendant did not timely object to the form or seek verification of the assignment, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Furthermore, defendant argues that it tolled the 30-day statutory time period within which it had to pay or deny plaintiff’s claims regarding the bills sought to be recovered in plaintiff’s first through sixth, eighth and ninth causes of action. It is undisputed that defendant timely mailed its initial request for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification request, which was mailed on the 30th day after the initial verification request, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial request for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant argues that the Civil Court improperly awarded plaintiff summary judgment as to its seventh cause of action since defendant timely denied that bill on the ground that the fees charged were excessive and not in accordance with the Workers’ Compensation fee schedule, defendant did not annex any proof to establish said defense. Consequently, defendant failed to establish the existence of an issue of fact with respect to this cause of action.

Defendant also argues that the Civil Court improperly denied its cross motion for summary judgment as to plaintiff’s tenth cause of action because plaintiff failed to rebut defendant’s prima facie showing of lack of medical necessity as to this cause of action. However, since defendant did not appeal from the underlying order and the appeal from the judgment does not bring up for review so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s tenth cause of action, said part of the order is not before us on appeal.

Accordingly, the judgment is reversed, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches
of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the
branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*3]
Decision Date: March 19, 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 (Ellen M. Spodek, J.), entered April 17, 2008. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover first-party no-fault benefits assigned to it by a pedestrian who was allegedly injured after having been hit by the insured’s car, the Civil Court granted a motion denominated by both defendant and the court as one seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7). However, in support of the motion, defendant did not argue that the allegations in the complaint failed to set forth a cause of action (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609 [2002]) or that plaintiff does not have a cause of action (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]), and the court did not so find. Rather, defendant sought to establish an affirmative defense, set forth in its answer, that the injuries did not arise from an insured incident, and sought dismissal on that ground (see CPLR 3212 [b]). Indeed, in opposition to the motion, plaintiff argued that defendant’s submissions were insufficient to establish defendant’s entitlement to summary judgment based on its defense. The Civil Court addressed itself to the merits of defendant’s defense, finding that “defendant has sustained its burden of proof of lack of coverage and therefore plaintiff’s complaint is dismissed.” Accordingly, we find that the court properly treated defendant’s motion, denominated as one pursuant to CPLR 3211 (a) (7), as a motion for summary judgment pursuant to CPLR 3212 (cf. Hopper v McCollum, 65 AD3d 669 [2009]).

We further find that the affidavit of the insured, submitted by defendant in support of its motion, was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since plaintiff failed to raise a triable issue of fact, the Civil Court properly granted defendant summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, we affirm the order.

We note that in addition to arguing that the order appealed from should be reversed, plaintiff contends that an order dated February 25, 2008, which was subsequently sua sponte [*2]vacated by order dated May 14, 2008, should be reinstated. As no appeal has been taken from either of these orders, we may not review them. We further note that no appeal lies as of right from the order dated May 14, 2008.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 2010

Civil Court of the City of New York, Richmond County

23541/08

Kim Dollard, J.

This is an action by the plaintiff medical provider, to recover no-fault benefits for medical services provided to Orlando Lainez-Rodriguez, plaintiff’s assignor, arising from an automobile accident that occurred on June 16, 2008.

A trial was held before the undersigned on December 15, 2009. The parties had stipulated that the plaintiff established its prima facie case by having submitted the claims in dispute to the defendant, and that the defendant mailed timely denials of the claims. The only issue before the court was the question of medical necessity of the medical services provided to the assignor.

Defendant presented two witnesses in support of their case. Dr. Jonathan Lown was called to testify on the issue of medical necessity. His testimony was based upon the findings of Dr. Harold A. Schechter who performed a peer review of this case and prepared peer review reports. Defendant also called Karen Waldenheimer, a representative of Progressive Insurance Company. The purpose of Ms. Waldenheimer’s testimony was to lay a foundation for the peer review reports, and to admit the peer review reports into evidence.

Plaintiff objected to admission of the of the peer review reports into evidence through Ms. Waldenheimer’s testimony. Plaintiff further objected to the testimony of Dr. Lown on the grounds that defendant did not comply with CPLR 3101(d). The court heard the testimony of both witnesses, and reserved decision on the issues raised by plaintiff. Both sides submitted briefs to the court as to the admissibility of the peer review reports and the testimony of Dr. Lown.

CPLR 3101(d) – EXPERT TESTIMONY

CPLR 3101(d)(1)(i) states: “Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert witness is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.”

Plaintiff claims that the disclosure notice provided by defendant is insufficient and vague, and therefore Dr. Lown should not have been permitted to testify and at trial and his testimony should be stricken.

Defendant, at the outset, states that plaintiff never requested any expert witness

disclosure, rendering its objection to the disclosure notice improper. The disclosure notice was given to plaintiff by defendant on its own volition. Further, defendant maintains that the disclosure notice is in full compliance with the statute. Additionally, defendant states that plaintiff neither objected to the Notice of Trial filed with the court, wherein defendant indicated that discovery was complete, nor did plaintiff make a motion to vacate the Notice of Trial.

The Expert Disclosure states in relevant part, “1. Defendant intends to call Jonathan Lown, MD,… to testify on Dr. Harold A. Schechter’s peer review report; see copies of Dr. Schechter’s peer reviews and Dr. Lown’s CV annexed hereto.”

A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court. (see Hubbard v Platzer, 260 AD2d 605; Lyall v City of New York, 228 AD2d 566; McGlauflin v. Wadhwa 265 AD2d 534). In the case at bar, the expert witness disclosure statement is not so inadequate or inconsistent with the expert’s testimony as to have been misleading, or to have resulted in prejudice or surprise. (see Gagliardotto v. Huntington Hosp., 25 AD3d 758, 759; Andaloro v. Town of Ramapo, 242 AD2d 354, 355; Rabinowitz v. Elimian, 55 AD3d 813, 814). Accordingly, preclusion is not warranted herein. (see Rowan v. Cross County Ski & Skate, Inc., 42 AD3d 563; Young v. Long Is. Univ., 297 AD2d 320; Abramson v. Pick Quick Foods, Inc., 56 AD3d 702, 703). The court will not strike Dr. Lown’s testimony upon these grounds.

ADMISSIBILITY OF PEER REVIEW REPORTS

AS A BUSINESS RECORD UNDER CPLR 4518(a)

CPLR 4518(a) permits the introduction of a business record as an exception to the hearsay rule. Pursuant to Rule 4518(a), “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter….” To admit a record under the CPLR 4518(a) business records exception for the truth of its contents, the four foundational elements must be satisfied. It must be shown that the [*3]document or record was made in the regular course of business; that it was the regular course of such business to make the record; that the record was made at the time of the act or occurrence recorded or within a reasonable time thereafter, and that the person who made the record had actual knowledge of the event recorded or received the information from someone within the business who had actual knowledge and was under a business duty to report the event to the maker of the record or if the statement of an outsider within the business record satisfies an independent hearsay exception. (see Alexander Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:1). To make this showing requires testimony from a sponsoring witness, someone from within the particular business such as the author, a records custodian or other employee who can testify as to the nature of the record keeping practices of the business (see Alexander Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:2; Prince, Richardson on Evidence, § 8-306 [Farrell 11th Ed.] ); Kaiser v. Metropolitan Transit Authority, 170 Misc 2d 321, 323).

As a rule, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Standard Textile Co. v National Equip. Rental, 80 AD2d 911).Defendant contends that Karen Waldenheimer, as a representative of Progressive Insurance Company, is competent to lay a foundation for the admission of Dr. Schechter’s peer review reports on the basis that she worked with and was familiar with peer review reports and that defendant relies upon peer review reports in making its determinations regarding the medical necessity of services rendered. Essentially, defendant is claiming that the peer review reports are business records of defendant. Defendant relies primarily upon the holding in People v. Cratsley, 86 NY2d81 wherein the court held that

The testimony of a mentally retarded rape victim’s counselor established the requisite foundation under the business records exception to the hearsay rule (CPLR 4518) for the admission of an IQ test report, prepared by a psychologist at the time of the victim’s admission to a sheltered workshop that provided opportunity and support for adults who are mentally retarded….Through the counselor’s testimony, the People established that the report was prepared for the workshop and in conformity with its procedures. That the psychologist was not himself a workshop employee does not, under these facts, defeat admission, because he was acting on behalf of the workshop and in accordance with its requirements when he prepared the report. Although the counselor could not relate the psychologist’s specific recordmaking practices, she was able to state that the report conformed with the statutory and regulatory requirements with which she was familiar. Coupled with her testimony that no client was accepted into the workshop program without such a report, and that the reports were routinely relied on by the workshop in making determinations regarding its clients, the evidence was sufficient to establish that the report, prepared at the time the examination was conducted, [*4]was made in the regular course of business and that it was the regular course of business te prepare such reports.

While it is true that Dr. Schechter may have been acting on behalf of defendant, his peer review reports may not be accepted into evidence through Ms. Waldenheimer. The court in Cratsley, supra made it clear that the admission of the report in that case was permissible under the facts presented in that case. The facts herein do not justify the same conclusion.

Additionally, as plaintiff points out, Dr. Schechter is not an employee of Progressive Insurance Company and was hired by a third party to prepare the reports. Further, Ms. Waldenheimer did not testify that she was familiar with Dr. Schecter’s business practices or exactly when Dr. Schecter prepared the reports.

The peer review reports are not accepted into evidence.

TESTIMONY OF DR. LOWN

The final issue before this court is the admissibility of Dr. Lown’s testimony notwithstanding that the peer reports are not in evidence. Dr. Lown was qualified as an expert, and presented his opinion testimony as an expert. Further, he was subject to full cross-examination.

“It is well settled that, to be admissible, opinion evidence must be based upon one of

the following: first, personal knowledge of the facts upon which the opinion rests: second,

where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and materials in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted by the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw at 292AD2d84, 86-87; Velen Medical Supply Inc. v. Travelers Ins. Co. 20 Misc 3d 781,783).

The identical issue was presented to the court in SK Medical Services, P.C. v. New York Central Mutual Fire Insurance Co., 12 Misc 3d 686. Similarly, in that no-fault case, the doctor who prepared the peer review report was not available to testify on the issue of medical necessity of services rendered to plaintiff’s assignor. Defendant presented another doctor to testify to the same facts and opinions that were set forth in the peer review doctor’s report. The court held, that there was no legitimate basis to preclude the doctor from testifying. “Each of defendant’s denials of claim, which asserted lack of medical necessity as a defense, was timely issued (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]), contained the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664), and, with [*5]the inclusion of the peer review report upon which it was based, promptly apprise[d] the claimant[s] with a high degree of specificity of the ground . . . on which [it was] predicated’ (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; see also, Nyack Hosp., 11 AD3d at 664; Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 153). Defendant therefore preserved its right to defend the claims at trial on the ground of lack of medical necessity for the reasons stated in the peer review reports.”SK Medical Services, P.C. v. New York Cent. Mut. Fire Ins. Co., supra.

The Appellate Term in both the First and Second Departments has also addressed the issue before the court. In Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A), an action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims at issue. The court held “This was error, since the expert would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; Home Care Ortho. Med. Supply, Inc. v. American Mfrs. Mut. Ins. Co. 14 Misc 3d 139(A)).

The same conclusion was reached in Bronx Expert Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 24 Misc 3d 134(A); see also Dilon Medical Supply Corp. v. New York Cent. Mut. Ins. Co. 18 Misc 3d 128(A) where the Appellate Term, Second Department held that “Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in

the original peer review reports, the expert witness should have been permitted to testify. (see Spruce Med. Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143(A); Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A)). In the instant case, the peer review reports had been provided to plaintiff prior to trial. In fact, a review of the court file reveals a summary judgment motion that had been filed by plaintiff, although subsequently withdrawn, which included a copy of the peer review reports. Additionally, the peer review reports were attached to the CPLR 3101(d) Expert Disclosure notice. Plaintiff was well apprised of defendant’s position regarding lack of medical necessity. Dr. Lown’s testimony and opinion, based upon the findings in the peer review reports is admissible and accepted by this court.

Accordingly, upon due consideration of all the testimony and documentary evidence before the court, the court finds as follows:

The medical expert who testified in this matter is wholly credible, and the defendant [*6]has proven a prima facie case that the services provided to the assignor were not medically necessary herein. Plaintiff has failed to overcome this and has failed to put forth any expert testimony in rebuttal. (see Be Well Medical Supply, Inc. v. New York Central Mutual Fire Insurance Mutual Fire Insurance Co., 18 Misc 3d 139 (A))

Accordingly, judgment for the defendant. Case dismissed.

The foregoing shall constitute the Decision and Order of the Court.

Dated: March 15, 2010

KIM DOLLARD

Judge, Civil Court

ASN by__________ in Court

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 10, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the third and fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, arguing, among other things, that there was a lack of medical necessity for the services at issue in plaintiff’s third and fifth causes of action, and that plaintiff was not entitled to recover on the claim at issue in plaintiff’s first cause of action based on the Worker’s Compensation Fee Schedule. Defendant appeals, as limited by the brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action.

The affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, defendant submitted an affirmation by the doctor who performed the independent medical examination as well as a copy of the independent medical examination report. Said [*2]documents established, prima facie, that with respect to the services at issue in plaintiff’s third and fifth causes of action, there was no medical necessity (see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), which evidence was unrebutted. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 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 January 16, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, holding that the sole issue to be determined at trial was medical necessity for the supplies at issue. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant submitted, among other things, two sworn peer review reports, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY [*2]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 showing that the supplies were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.

Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 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 (Leslie J. Purificacion, J.), entered November 18, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground of lack of medical necessity. As limited by the brief, defendant appeals from so much of the order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

The affidavit and peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the services rendered (Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). However, the affidavit of plaintiff’s treating chiropractor, submitted in opposition to defendant’s motion for summary judgment, was sufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered (cf. 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], *2 [App Term, 2d, 11th & [*2]13th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 18, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed without costs and defendant’s motion to vacate the default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment.

In order to vacate a default judgment pursuant to CPLR 5015 (a) (1), a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]).

Plaintiff’s affidavit of service established that plaintiff had effectuated service upon defendant through the delivery of the summons and complaint to the Superintendent of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). In support of defendant’s motion to vacate the default judgment, there was more than a “mere denial” of [*2]receipt of the summons and complaint (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). Defendant submitted an affidavit from one of its no-fault litigation examiners, who had personal knowledge regarding defendant’s practices and procedures in retrieving, opening and filing its mail and in maintaining its files on existing claims. In said affidavit, the no-fault litigation examiner stated that defendant had never received the summons, the complaint or the motion for a default judgment (cf. Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]). Accordingly, pursuant to CPLR 317, defendant met its burden of showing that it did not receive actual notice of the summons in time to defend the action.
Furthermore, defendant established the existence of a meritorious defense to the action. Defendant submitted an affidavit from its litigation examiner in which he stated that the assignor had cancelled her insurance policy with defendant prior to the date of the accident and had not subsequently taken out another insurance policy with defendant.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in denying defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is granted.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 10, 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 (Kenneth P. Sherman, J.), entered January 3, 2008. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the claim on the ground that plaintiff had failed to submit the claim within 45 days after the date the supplies at issue had been provided to its assignor. Insofar as is relevant to this appeal, plaintiff opposed defendant’s motion for summary judgment on the ground that defendant had waived reliance on the 45-day rule because it had failed to advise plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that the untimely submission of a claim would be excused where the applicant provided reasonable justification for its failure to give timely notice of the claim. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

The affidavit of defendant’s claims adjuster sufficiently established the timely mailing of the denial of claim form, since the affidavit described in detail defendant’s standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant denied the claim on the ground that plaintiff’s submission of the claim was untimely. The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim [*2]was denied by another insurance carrier, plaintiff failed to proffer any explanation as to why it first submitted the claim to the other insurance carrier. As a result, plaintiff failed to provide defendant with a reasonable justification for plaintiff’s untimely submission of the claim to defendant (see St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010