—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Robert B. Taylor, New Rochelle, N.Y., for respondent.

In an action to recover first-party no-fault benefits pursuant to a policy of insurance, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated February 27, 2009, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction or, in the alternative, for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the motion following a prompt application by the plaintiff to the Workers’ Compensation Board to determine his rights under the Workers’ Compensation Law.

“[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; see O’Rourke v Long, 41 NY2d 219 [1976]; Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d 517 [2007]). In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 269 [1991]). Resolution of these questions “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (id. at 269). Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law (see Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d at 518-519; Arvatz v Empire Mut. Ins. Co., 171 AD2d at 269). Covello, J.P., Miller, Dickerson and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order, insofar as appealed from as limited by the brief, granted defendant’s cross 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, plaintiff moved for an order compelling defendant to appear for an examination before trial. Defendant cross-moved, based upon an affirmed peer review report, for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. In opposition to defendant’s cross motion, plaintiff asserted that the peer review report annexed to defendant’s cross motion was deficient in that it contained a stamped signature and was not in compliance with CPLR 2106. In reply, defendant submitted an affidavit from the peer review doctor in which she stated that she had “personally applied the signature on the peer review report.” The Civil Court denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted defendant’s cross motion, arguing solely that the signature on the peer review report was a stamped facsimile signature.

When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 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 (Joseph Esposito, J.), entered April 15, 2008, deemed from a judgment of the same court entered June 16, 2008 (see CPLR 5512 [a]). The judgment, insofar as appealed from as limited by the brief, entered pursuant to the April 15, 2008 order granting plaintiff’s motion for leave to renew defendant’s prior motion and, upon such renewal, denying defendant’s prior motion to modify plaintiff’s proposed judgment by reducing the award to plaintiff of attorney’s fees set forth in plaintiff’s proposed judgment, awarded plaintiff $1,745.47 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award of attorney’s fees to plaintiff to the sum of $850; as so modified, the judgment is affirmed without costs, so much of the order entered April 15, 2008 as, upon renewal, denied defendant’s motion to reduce the proposed judgment is vacated and defendant’s motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff alleged five unpaid claims as its cause of action. The Civil Court granted plaintiff’s motion for summary judgment as to four of the claims. Following this court’s affirmance of the order (A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 13 Misc 3d 126[A], 2006 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2006]), defendant moved to modify plaintiff’s proposed judgment to limit the award of attorney’s fees to the sum of $850, rather than the proposed total of $1,745.47 sought therein, which fee had been calculated on a per claim basis. The Civil Court granted defendant’s motion. Thereafter, in light of the opinion of the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290 [2007]), the Civil Court granted plaintiff’s motion for leave to renew defendant’s motion and, upon renewal, allowed the fees as previously proposed by plaintiff. Defendant appeals from that order. Plaintiff subsequently entered a judgment which included the award of $1,745.47 as attorney’s fees, from which judgment this appeal is deemed taken (CPLR 5512 [a]).

In LMK Psychological Servs., P.C. v State Farm Mut. Aut. Ins. Co. (12 NY3d 217, 222-223 [2009]), the Court of Appeals reversed the Appellate Division and accepted the opinion of [*2]the Superintendent of Insurance (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), which “interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not . . . each separate medical bill submitted by the provider.” As a result, the Court of Appeals held that attorney’s fees are to be calculated based “on the aggregate of all bills for each insured,” to a maximum of $850 (LMK Psychological Servs., P.C., 12 NY3d at 223).

Accordingly, as there is but one insured involved herein, the award of attorney’s fees to plaintiff is reduced to the sum of $850.

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

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal by defendant from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), deemed from the judgment entered pursuant thereto on August 11, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $340.

ORDERED that the judgment is reversed without costs and the complaint is dismissed.

In this action to recover assigned first-party no-fault benefits, the parties stipulated at trial that plaintiff is a lawfully constituted professional service corporation wholly owned by a licensed physician, that the physician was not certified to perform acupuncture at the time the acupuncture services at issue were provided, and that the services were provided by a licensed acupuncturist employed by plaintiff. The parties also stipulated that the sole issue for the Civil Court’s determination was whether plaintiff had standing to commence this action to recover benefits under the no-fault provisions of the insurance policy. In its decision, the Civil Court ruled that a lawfully formed medical professional service corporation owned by a licensed physician may receive reimbursement of no-fault benefits for acupuncture services rendered by an employee who is a licensed acupuncturist notwithstanding that the physician was not certified to perform acupuncture. Defendant appeals from that decision. We deem the appeal to be from the judgment which was subsequently entered in favor of plaintiff (see CPLR 5520 [c]).

Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12) states that “[a] provider of health care services is not eligible for reimbursement [of no-fault benefits] if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service[s]” (see e.g. Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 38-39 [App Term, 2d & 11th Jud Dists 2007]).

Only someone properly licensed or certified may practice acupuncture in New York State (Education Law § 8212; Great Wall Acupuncture v GEICO Ins. Co., Misc 3d , 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]; Lexington Acupuncture, P.C. v State [*2]Farm Ins. Co., 12 Misc 3d 90, 92 [App Term, 2d & 11th Jud Dists 2006]). Physicians are not authorized to practice acupuncture by virtue of their medical licenses; rather, they must satisfy the certification requirements if they are to practice acupuncture (Education Law §§ 8212, 8216 [3]; Education Department Regulations [8 NYCRR] § 60.9). Thus, the certificate of incorporation for a professional service corporation that seeks to obtain reimbursement of no-fault benefits for acupuncture services rendered “shall have attached thereto a certificate or certificates issued by the [Education Department] certifying that each of the proposed shareholders, directors and officers is authorized by law to practice a profession which the corporation is being organized to practice and, if applicable, that one or more of such individuals is authorized to practice [acupuncture]” (Business Corporation Law § 1503 [b]; see e.g. Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C., 12 Misc 3d at 92).

Where, as here, a professional service corporation is owned solely by a doctor who is not a certified acupuncturist at the time the acupuncture services at issue were rendered, such professional service corporation is not entitled to reimbursement of assigned no-fault benefits for such services notwithstanding the fact that the acupuncture services were rendered by a licensed acupuncturist employed by the corporation and that the corporation’s owner subsequently became a certified acupuncturist (Business Corporation Law § 1503 [b]; § 1507; Insurance Department Regulations [11 NYCRR] § 65-3.12 [a]; cf. Healthmakers Med. Group, P.C. v Travelers Indem. Co., 13 Misc 3d 136[A], 2006 NY Slip Op 52118[U] [App Term, 1st Dept 2006]). Accordingly, the judgment is reversed and the complaint dismissed.
Golia, J.P., Pesce and Weston, JJ., conur.
Decision Date: February 19, 2010

[*1]

District Court of Suffolk County, Third District, February 17, 2010

APPEARANCES OF COUNSEL

Rapuzzi, Palumbo & Rosenberger, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiff. Carman, Callahan & Ingham, LLP, Farmingdale (Evelina K. Popijakowska of counsel), for defendant.

{**27 Misc 3d at 437} OPINION OF THE COURT

C. Stephen Hackeling, J.

At a trial of the above-captioned “medical service provider no-fault” action conducted December 17, 2009, neither side presented witnesses. Instead, the plaintiff offered into evidence a notice to admit dated November 13, 2009 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $1,184.66, that the defendant denied the claim and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to Insurance Law § 5106 (a). The defendant conceded it did not respond to the notice to admit and presented no testimony or alternative evidence. It is the defendant’s contention that it need not establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

The issue presented to the court for disposition is whether a no-fault medical service provider can establish its section 5106 (a) prima facie cause of action through a notice to admit. It is the court’s opinion that it can.

The court concurs with the plaintiff’s assertion that New York’s courts have consistently [*2]held that a plaintiff in a medical service provider no-fault matter establishes its prima facie entitlement to relief by demonstrating: (1) the prescribed statutory billing forms were mailed to and received by the defendant; and (2) payment of no-fault benefits is overdue. (See Insurance Law § 5106 [a]; Kipor Medicine P.C. v MVAIC, 23 Misc 3d 948 [Civ Ct, Kings County 2009], citing Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; see generally Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004].)

At first blush it would appear that two such noncomplex elements could appropriately be established via a CPLR 3123 formal judicial admission. However, the Appellate Term, Second Department, for the 2d, 11th and 13th Judicial Districts has determined that a notice to admit, by itself, is not evidentiary proof sufficient to establish a prima facie case, and that witness{**27 Misc 3d at 438} testimony is necessary to lay a foundation to establish the admissibility of a claim in the form of a business record. (Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2007].) In stark contrast several Appellate Term courts in the First Department have determined that judicial admissions constitute evidence sufficient to prove mailing and receipt of no-fault medical provider claims. (See P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008], citing Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [App Term, 1st Dept 2007].) This position is further buttressed by an Appellate Division, First Department, holding that informal judicial admissions established via answers to interrogatories in a personal injury action can establish a prima facie case. (Bigelow v Acands, Inc., 196 AD2d 436 [1st Dept 1993].)

The doctrine of stare decisis binds this court to follow the rulings of its Appellate Term (9th & 10th Jud Dists), the Appellate Division, Second Department, and the New York Court of Appeals. The plaintiff advances the argument that stare decisis requires it to adopt the Appellate Division/Appellate Term, First Department, decisions in the absence of a Second Department or Court of Appeals decision. (See Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984].) While generally true, the novel complicating factor in this case is that an Appellate Term court in a different district in this court’s Appellate Division has contemporaneously taken a contrary position. In such a circumstance, when presented with conflicting appellate decisions from outside its jurisdictional chain, this court determines that stare decisis does not bind it and that it is free to make its own decision.

The court notes that a sister Suffolk County District Court has already addressed the issue and rendered a treatise decision citing to a plethora of case law and to Professor David Siegel, New York Practice, Prince, Richardson on Evidence and Wigmore, Evidence, which allowed the use of notices to admit as prima facie evidence. (Seaside Med., P.C. v General Assur. Co., 16 Misc 3d 758 [Suffolk Dist Ct 2007].) This holding appears correct, especially in light of the simplified expedited payment process that the legislature has established for no-fault claims. “Notices to admit” are more than simply a discovery device, such as an interrogatory. The fundamental purpose of a notice to admit is to expedite the trial by eliminating the need to call a witness to prove an undisputed fact; matter which is easily{**27 Misc 3d at 439} provable or the genuineness of a document. (See Brilliant, Outside Counsel, Courts Differ on Notice to Admit Use in No-Fault Insurance Cases, NYLJ, Mar. 26, 2009, at 4, col 3; see generally Taylor v Blair, 116 AD2d 204 [1st Dept 1986].) The distinction between informal judicial [*3]admissions which are adduced in sworn deposition transcripts and interrogatory answers, and those established via formal judicial admissions established in a notice to admit, is that the informal admissions must be proved at trial via witness testimony. The absence of an affirmative denial waives the need to prove the requested admission as effectively as if admitted in the answer.

Accordingly, the court finds that the plaintiff has established an unrebutted prima facie cause of action pursuant to Insurance Law § 5106 (a) and enters judgment for it in the sum of $1,184.66 plus statutory interest from 30 days after its claim date, statutory attorneys fees and costs.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated March 6, 2009. The order, insofar as appealed from, upon granting plaintiff’s motion for leave to reargue the branch of plaintiff’s prior motion which sought to limit the issues to be tried pursuant to CPLR 3212 (g), denied that branch of plaintiff’s prior motion.

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, plaintiff moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers. The District Court denied the branch of plaintiff’s motion seeking summary judgment. Thereafter, plaintiff moved for leave to reargue, asserting that the court had not rendered a decision with regard to the branch of its motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers, and the District Court granted leave to reargue and, upon reargument, denied the branch of plaintiff’s motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit of its billing manager failed 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]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, we find no basis to disturb the District Court’s denial of the branch of plaintiff’s motion seeking a determination pursuant to CPLR 3212 (g) that plaintiff had, inter alia, established its prima facie case.

Accordingly, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 14, 2009. The order denied a petition to vacate a master arbitrator’s award and an arbitrator’s award, and confirmed the awards.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR 7511 to vacate an arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits, as well as a master arbitrator’s award which upheld the arbitrator’s award, respondent opposed the petition, asserting that the arbitrator had properly denied petitioner’s claim and that the master arbitrator had properly upheld the award. The District Court denied the petition and confirmed the awards. This appeal by petitioner ensued.

The standard applicable to judicial review of an award in a compulsory arbitration proceeding is whether the award had evidentiary support and was not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Applying this standard to the instant proceeding, we find no basis to vacate the arbitrator’s award and the master arbitrator’s award. Accordingly, the District Court properly denied the petition to vacate said awards and, rather, properly confirmed them.

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

Nicolai, P.J., and Iannacci, J., concur.

Molia, J., taking no part.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, Second District (Sondra K. Pardes, J.), dated August 1, 2005, deemed from a judgment of the same court entered December 17, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,123.75, plus statutory interest and attorney’s fees.

This action by a provider to recover assigned first-party no-fault benefits was tried before a judge on July 11, 2005. At trial, the court stated, on the record, that “there’s a limited issue in this trial and that’s the issue of medical necessity.”
Defendant’s attorney confirmed this to be the case. The court also stated, “I don’t think there’s any dispute that a form – – a claim was submitted, that it was denied, the denial was timely, the issue was medical necessity. We all understand that.” The court asked for a copy of the “claim form,” which was apparently provided, but not entered into evidence.

Defendant proffered the testimony of its peer review doctor, who testified that the medical equipment billed for was not medically necessary. On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

Following the trial, the court dismissed plaintiff’s complaint, finding, in a written decision, that plaintiff “specifically declined to present a prima facie case.” We reverse.

Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.

Accordingly, plaintiff is entitled to an award in the principal sum of $1,123.75. The matter is remitted to the District Court for the calculation of statutory interest, an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and the entry of judgment.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

[*1]

Civil Court of the City of New York, Richmond County, February 5, 2010

APPEARANCES OF COUNSEL

Law Office of Robert P. Tusa, Brooklyn, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**27 Misc 3d at 699} OPINION OF THE COURT

Katherine A. Levine, J.

The novel issue presented is what type of proof a defendant insurance company must present at trial in order to prevail on its defense that the injury billed for by a plaintiff medical service provider was not medically ascertainable within a year. Both parties concede that in order for this defense to be even raised, the insurance company must issue a timely denial.

This action was commenced by plaintiff AP Orthopedics & Rehabilitation, P.C. (AP Orthopedics) to obtain payment from defendant Allstate Ins. Co. (defendant or Allstate) for medical services it provided to its assignor Nelson Hernandez (assignor) in the form of arthroscopic surgery of the shoulder on October 11, 2006. Allstate received the bill on June 14, 2007 and timely denied it within 30 days on the grounds that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Defendant presented the testimony of its claims examiner Nicholas D’Ermilo (claims examiner or D’Ermilo) to prove its defense. D’Ermilo testified that he had been employed by [*2]Allstate for over 27 years in its no-fault department and was a unit supervisor in no-fault in 1999 when Allstate first received claims from the assignor. He testified, that within one year of the accident, which occurred on February 14, 1999, Allstate received a number of bills from various medical providers other than plaintiff regarding the assignor and denied many bills (defendant’s exhibits A, D). He testified that defendant also received claims in 1999 from Flatbush Diagnostic for physical therapy on, and treatment of the assignor’s ankle, which it timely paid. Defendant also paid claims in 1999 from Alpha Chiro for chiropractic treatment it provided to the assignor’s cervical and lumbar spine.

On June 14, 2007, defendant received a bill for arthroscopic surgery of the assignor’s shoulder which was performed on October 11, 2006. D’Ermilo’s review of the file revealed that, between 2000 through June 2007, Allstate did not receive any further bills from physicians or providers pertaining to the assignor.{**27 Misc 3d at 700} His review of the file also revealed that the assignor’s shoulder had never been treated within one year of the accident, that no X rays or MRIs or CAT scans were taken of the shoulder, and there had been no chiropractic care of the shoulder. Nor was there any indication that the assignor would require future treatment of the shoulder.

On cross-examination, the claims examiner admitted that his testimony was based upon his review of the electronic files and that Allstate had closed the physical file on the assignor back in December 1999. His testimony was based solely upon the denials that Allstate had issued and which had been stored in Allstate’s computer system; Allstate no longer had access to the assignor’s application for benefits (NF-2) back in 1999. He did not know whether any chiropractic or physical therapy notes had been submitted to Allstate back in 1999 or what the chiropractor’s diagnosis had been.

At the close of the defendant’s case, plaintiff argued that defendant had the burden of proving, by the preponderance of the evidence, that the 2007 claim for arthroscopic surgery was not related to the accident. Plaintiff contended that it was impossible for defendant to meet this burden as the claims examiner was not a doctor, and that pursuant to Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [2d Dept 1999]), the issue of lack of causation could only be established through the testimony of an expert witness. Defendant countered that since there was no dispute that between 2000 and 2007 the assignor had not presented any bills for treatment, and that the 1999 to 2000 bills were solely for the cervical/lumbar spine and the ankle, defendant had met the burden of proving that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Insurance Law § 5102 (a) (1) provides, in pertinent part, that an insurer must pay all necessary medical expenses of its insured without limitation as to time “provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” (Emphasis added.) The implementing regulations (11 NYCRR 65-1.1 [d] [Sec I, Medical Expense]) further provide that “medical expenses will not be subject to a time limitation, provided that, within one year after the date of the accident, it is ascertainable that further medical expenses may be [*3]sustained as a result of the injury.”

The scant case law interpreting this provision has held that “an injury is not ascertainable if no evidence of it is submitted{**27 Misc 3d at 701} to the insurer within a year of the accident.” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [3d Dept 1996].) For example, if an insured submitted expenses for a cervical injury and then three years later submitted expenses for a knee injury, the latter would not be ascertainable within the meaning of section 5102. On the other hand, if the subsequent treatment was for cervical injury, “that injury would be ascertainable since expenses for treatment for that injury had been submitted to the insurer within the one-year period.” (229 AD3d at 873.)

In Hospital for Joint Diseases v Allstate Ins. Co. (21 AD3d 348 [2d Dept 2005]), the Appellate Division, Second Department, further spelled out how this defense could be raised, albeit through a motion for summary judgment. After a plaintiff made out a prima facie case, the defendant had to raise a triable issue of fact as to whether the medical expenses submitted beyond a year after the accident “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident.” (Id. at 349, quoting Stanavich at 873; see 11 NYCRR former 65.15 [new regulation § 65-1.1].) The court also held that the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver. (Id., citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; see also Matter of Fields [Allstate], AAA case No. 4120070557, Mar. 20, 2008 [failure to submit any evidence which indicated that the applicant would in fact require further treatment after a gap of almost five years]; Ops Gen Counsel NY Ins Dept No. 08-04-16 [Apr. 2008]; see also Barki v Employers Mut. Liab. Ins. Co. of Wis., 87 Misc 2d 912, 913 [Kingston City Ct 1976] [burden is upon plaintiff to prove the fact of “ascertainability” within one year of the accident].)

Thus, according to Stanavich and its progeny, it would appear that as long as the insurance company can prove that it received no claims for a shoulder injury within one year of the accident, it would prevail on its defense that a claim submitted for a shoulder injury some seven years after the accident was not ascertainable within one year of the accident. However, plaintiff contends that only a medical expert can establish that a claim for a new type of injury was not ascertainable, from the medical claims previously supplied, within a year of the date of the injury. Plaintiff is, in essence, contending that it is entitled to a presumption of medical necessity, regardless of the time frame in which it submits a claim, and that defendant can only rebut{**27 Misc 3d at 702} this presumption by establishing a lack of medical necessity through an expert.^[FN*] [*4]

Under the No-Fault Law, individuals are entitled to be compensated for “basic economic loss” resulting from injuries caused by the operation of a motor vehicle. (Insurance Law § 5101 et seq.) “Basic economic loss” is defined to include “[a]ll necessary expenses” incurred for medical services “all without limitation as to time, provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury.” (Insurance Law § 5102 [a] [1]; 11 NYCRR 65-1.1; see Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 438 [Civ Ct, NY County 2005].)

A presumption of medical necessity attaches to a timely submitted no-fault claim. (All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists 2006].) The burden then shifts to the defendant to rebut the presumption of medical necessity. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept 2004]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]; A Plus Med., P.C. v Government Empls. Ins. Co., 21 Misc 3d 799 [Civ Ct, Kings County 2008].)

However, the term “provided that” constitutes a proviso to this section of the No-Fault Law. According to the general rules for statutory construction, the words “provided, however,” are deemed to denote the expression of a limitation or exception. (Matter of Livingston, 14 AD2d 264, 265 [1st Dept 1961].) “It is the province of a proviso to restrain the enacting clause, to take something back from the power first declared, to except something which would otherwise have been within it, or in some measure to modify the enacting clause.” (Id., quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 212.) Thus, a proviso is ” ‘a condition, qualification, or limitation,’ a clause ‘to modify the operation of that part of the statute.’ ” (Ferrer v{**27 Misc 3d at 703} State of New York, 136 Misc 2d 218, 221 [Ct Cl 1987], quoting Webster’s Third New International Dictionary 1827 [unabridged 1993 ed]; Statutes § 212; see County of Erie v City of Buffalo, 4 NY2d 96, 103-104 [1958].)

The term “provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury” thus serves as an exception or limitation to the presumption of medical necessity that generally attaches to claims that are submitted within one year of the accident. In other words, as long as the insurer can establish that it timely denied the claim and that no claims were presented to it within one year of the accident that were for injuries that were subsequently submitted outside of the one-year period, the insurer will prevail.

This construction comports both with explicit language of the proviso and with the legislative purpose behind the enactment of the No-Fault Law. The governing rule of statutory construction is that when the statutory “language is clear and unambiguous, it should be [*5]construed so as to give effect to the plain meaning of [the] words” used. (People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989], citing Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675 [1988].) Furthermore, it is a general rule of construction that “omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction.” (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 517 [1st Dept 1980]; Statutes §§ 75, 363.) Thus, a court cannot insert words into a statute that are not there and cannot read into a statute a provision which the Legislature did not see fit to enact. (People v Harris Corp., 123 Misc 2d 989, 995 [Clinton County Ct 1984].)

The proviso requires that within one year of the accident, it is ascertainable that further expenses may be incurred. Ascertainable has a clear and unambiguous meaning: “to find out or learn with certainty,” to discover. (Webster’s New Collegiate Dictionary.) The clause does not require that it be medically ascertainable that further expenses be incurred. Thus, if within a year it is not clear with certainty or discoverable that further expenses may be incurred, the insurer is under no obligation to pay for services rendered way after a year has expired. This determination can be made by a claims examiner who reviews records submitted or denials made on claims within the first year of the accident.

Moreover, this interpretation comports with the goal behind the No-Fault Law—to promote the “prompt payment of legitimate{**27 Misc 3d at 704} claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), and the prompt resolution of injury claims. (Pommells v Perez, 4 NY3d 566 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997] [“(t)he tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices”]; All Health Med. Care v Government Empls. Ins. Co., 2 Misc 3d 907, 910 [Civ Ct, Queens County 2004].) The regulations require insurers to act quickly in evaluating insureds’ claims and to avoid prejudicial delays. (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723, 725 [Civ Ct, Queens County 2004].) Accordingly, it is the court’s duty to interpret and apply the no-fault regulations in a consistent manner leading to the prompt payment of valid, documented claims. (Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 766, 774 [Civ Ct, NY County 2007].)

To hold otherwise, and require an insurance company to present a medical expert to validate a claims examiner’s testimony that the assignor failed to file any claims relating to the shoulder within a year of the accident, would run contra to the intent of the legislation and stymie the insurer’s expeditious processing of claims. It would force insurers to dwell on every claim they received to ascertain what claims for possible new injuries might be sent by the assignor more than a year after the assignor submitted his initial claims. The insurers would be foreclosed from closing any cases for fear that they might need a medical expert, some seven years after the accident, to pour over notes from doctors that were submitted within the initial year of the accident to opine as to whether the claim for new injuries was ascertainable within one year of the accident. [*6]

In light of the above, defendant has proved its defense. Since plaintiff offered no evidence to rebut defendant’s proof that the injury for the shoulder was not readily ascertainable within one year of the accident, judgment is rendered for defendant and the case is dismissed.

Footnotes

Footnote *: Plaintiff’s reliance on Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]) is misplaced since Mount Sinai did not involve a determination as to whether a claim for a new injury, presented more than a year after the accident, was ascertainable, from the records presented, within a year. Rather, it involved the purely medical determination as to whether an injury was entirely preexisting (i.e., not covered under the insurance agreement) or was in whole or part caused by an insured accident, which would require a review of medical facts. (263 AD2d at 18.)

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated actions, defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated February 11, 2009, which granted plaintiff’s motion to restore the actions to the calendar.

Per Curiam.

Order (Ben R. Barbato, J.), dated February 11, 2009, reversed, without costs, and motion denied.

Plaintiff commenced these actions to recover first-party no-fault benefits in March 2003. Plaintiff’s assignors were injured in the same August 2001 motor vehicle accident, which [*2]defendant asserts was staged, and the actions were therefore consolidated for trial in December 2004. On January 6, 2006, the actions (each of which sought approximately $1300) were marked off the trial calendar, and plaintiff moved to restore them in January 2009.

Because plaintiff moved to restore the actions more than one year after they were stricken from the calendar, plaintiff was required to demonstrate (a) the merits of its claims; (b) a lack of prejudice to defendant; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay in moving to restore the actions (Kaufman v Bauer, 36 AD3d 481, 482 [2007]). All four requirements must be met before an abandoned action can be restored (id.).

Even assuming, arguendo, that plaintiff satisfied the remaining criteria, it failed to offer a reasonable excuse for its three-year delay in seeking to restore the actions (see generally Okun v Tanners, 11 NY3d 762 [2008]). Plaintiff offered no excuse for its prior counsel’s failure to move to restore the actions during the 19-month period between the date the cases were marked off and the date prior counsel was relieved, and failed to adequately explain its substituted counsel’s 17-month delay in moving to restore. Accordingly, plaintiff’s motion should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 02, 2010