District Court of Nassau County, First District

30566/05

Plaintiff – Friedman, Harfenist, Langer & Kraut

Defendant – DeSena & Sweeney

Fred J. Hirsh, J.

This action appears to be a simple claim to recover first party no-fault benefits for a cervical MRI and lumbar MRI performed by Elmont Open MRI on Almarto Wiggins (“Wiggins”) on March 24, 2005. State Farm Fire and Casualty Company (“State Farm”) denied payment for these MRIs on the grounds they were not medically necessary based upon the peer review report of Edward M. Weiland, M.D. (“Dr. Weiland”). Dr. Weiland’s letterhead and curriculum vitae indicates that he is a board certified neurologist.

The denial raises the issue of who is a proper expert to issue a peer review report and to testify regarding whether treatment or tests are medically necessity.

Wiggins was injured in an automobile accident that occurred on February 9, 2005. State Farm was the insurance carrier that provided no-fault benefits to Wiggins.

On February 16, 2005, Wiggins was examined by a neurologist, A. Etamadi, M.D. The neurological exam was essentially normal. Dr. Etamadi diagnoses relevant to this action are a cervical spine sprain/strain and a lumbar spine sprain/strain. Dr. [*2]Etamadi recommended a follow up visit in four weeks and an orthopedic consultation.^[FN1]

Wiggins also came under the care of a chiropractor, Mark Heyligers, D.C

(“Dr. Heyligers”) on February 15, 2005. A sheet a heading “Initial Report” prepared by Dr. Heyligers is dated 3/22/04. The face page of the “Initial Report” makes reference to objective findings and x-ray analysis contained in an attachment thereto. The x-ray analysis (Roentgenological Report) is attached to the copy of the Initial Report in evidence. The objective findings are not.

Prior to March 24, 2005, Dr. Heyligers recommended Wiggins have a cervical and lumbar MRIs. The exact date these MRIs were ordered is not contained in the records introduced into evidence. The referral sheet for the MRIs incorrectly places Wiggins date of birth on the line for the referral date. The referral sheet does not state the reason the MRIs were ordered. However, the referral sheet states the referring doctor is Dr. Heyligers. The MRIs were performed by plaintiff on March 24, 2005. The reports of the reading of the MRIs were sent to Dr. Heyligers.

Wiggins received chiropractic care and treatment from Dr. Heyligers from February 15, 2005 to at least May 25, 2005. This clear because Dr. Heyligers issued a letter of medical necessity regarding the cervical and lumbar MRIs dated May 25, 2005. None of the records relating to the treatment Wiggins received from Dr. Heyligers other than the Initial Report and the x-ray analysis were reviewed by Dr. Weiland or placed in evidence at trial.

Dr. Heyligers May 25, 2005 letter diagnoses Wiggins as having a cervical sprain/strain, lumbar sprain/strain, brachial radiculitis and neuritis of sciatic nerve. Dr. Heyligers recommended physical therapy and chiropractic care three times a week. Dr. Heyligers states the diagnostic testing was recommended to permit him to provide Wiggins with proper treatment.

Dr. Weiland did not testify at trial. State Farm had Marlon Seliger, M.D. (“Dr. Seliger”) prepare a re-peer report. Dr. Seliger is a medical doctor whose field of expertise is neurology. State Farm called Dr. Seliger testified on the issue of medical necessity.

The parties stipulated to plaintiff’s prima facie case. The parties also stipulated to the timely denial of the claim on the grounds of lack of medical necessity. The parties stipulated into evidence the peer review reports of Dr. Weiland and Dr. Seliger, the medical reports and records reviewed by the doctors in preparing their peer review reports and the other information and documentation reviewed by the peer review doctors.

Dr. Seliger concurred with Dr. Weiland’s determination the cervical and lumbar MRIs were not medically necessary. Dr. Seliger testified the medical records he reviewed indicated an essentially normal neurological examination of the cervical and [*3]lumbar spine. The neurologist who examined Wiggins a week after the automobile accident diagnosed Wiggins as having a cervical sprain/strain and a lumbar sprain/strain as a result of the automobile accident. The only diagnoses Dr. Seliger found in the Initial Report of Dr. Heyligers was a mild cervical and lumbar myospasm.

Dr. Seliger further testified since the doctors providing treatment to Wiggins had reached a diagnosis and had developed a treatment plan without performing the MRIs the MRIs were not medically necessary. Cervical and lumbar MRIs are not medically necessary under these circumstances unless the results of the MRIs would influence treatment.

Dr Weiland’s peer review report and State Farm’s denials predate Dr. Heyligers’s letter of medical necessity. Therefore, this letter was also not considered by State Farm in issuing its denials.

Dr. Seliger did not review Dr. Heyligers’s letter of medical necessity in preparing his re-peer report. He reviewed only those records and reports that Dr. Weiland had reviewed.

Dr. Heyligers’s letter of medical necessity was introduced into evidence at trial. Dr. Seliger reviewed the letter of medical necessity and testified it did not change his opinion that the MRIs were not medically necessary.

DISCUSSION

A presumption of medical necessity attaches to a timely submitted no fault claim.

All County Open MRI & Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th & 10th Jud. Dists. 2006). Since the parties stipulated to plaintiff’s prima facie case, the cervical and lumbar MRIs were presumptively medically necessary.

The burden then shifts to the defendant to rebut the presumption of medical necessity. A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 10 Misc 3d 50 (App.Term 2nd & 11th Jud. Dists. 2005); and A Plus Medical, P.C. v. Government Employees Ins. Co., 21 Misc 3d 799 (Civil Ct. Kings Co. 2008).

In order to meet this burden, the defendant must establish the treatment or tests in question were not in accordance with generally accepted medical/professional practice. Delta Medical Supplies, Inc. v. NY Central Mutual Ins. Co., 14 Misc 3d 1231(A) (Civil Ct. Kings Co. 2007); and CityWide Social Work & Psychological Servs. V. Travelers Indem. Co., 3 Misc 3d 608 (Civil Ct. Kings Co. 2004).

The defendant must prove there is a factual basis and medical rationale for the opinion of the peer review doctor the services rendered or tests performed by plaintiff were not medically necessary.. Prime Psychological Services, Progressive As. Ins. Co., 24 Misc 3d 1244(A) (Civil Ct. Richmond Co. 2009); and Nir v. Allstate Ins. Co., 7 Misc 3d 544 (Civil Ct. Kings Co 2005).

Expert testimony is required to establish what the generally accepted medical/professional practices are and how ordering the tests or treatment departed from generally accepted medical/professional standards. Dunn v. Khan, 62 AD3d 828 (2nd Dept. 2009); and Lyons v. McCauley, 252 AD2d 516 (2nd Dept. 1998).

Chiropractics is separate and distinct from the practice of medicine so that a physician’s standard is not controlling upon a chiropractor in the practice of his or her profession. Taormina v. Goodman, 83 AD2d 1018 (2nd Dept. 1978). In determining [*4]whether treatment performed or tests ordered by a chiropractor are medically necessary, the court must determine the generally accepted standard of care in the field of chiropractics and whether the providing the treatment or ordering of the tests was in accordance with those generally accepted chiropractic standards. 1B NY PJI3d 2:150, at 802 (2009).

To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). When a doctor testifies outside his area of expertise, the party calling the doctor must lay a foundation establishing the doctor is familiar with the generally accepted practice in the area in question to lay a proper a foundation for the expert’s opinion. Shectman v. Wilson, -A.D.3d-, 2009 WL 4674047 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

State Farm had a neurologist perform the peer review and called a neurologist to testify the cervical and lumbar MRIs ordered by a chiropractor were not medically necessary. Even though the parties stipulated Dr. Seliger was an expert, his field of expertise is neurology not chiropractics. State Farm did not establish Dr. Weiland, the peer reviewer, or Dr. Seliger, the re-peer, were familiar with generally accepted chiropractic practices or the generally accepted reasons why a chiropractor would order a patient to have a cervical or lumbar MRI.^[FN2] Therefore, Dr. Weiland’s peer review report and Dr. Seliger’s testimony are insufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim.

For the foregoing reasons, the court finds for the plaintiff.

The clerk is directed to enter a judgment in favor of the plaintiff and against the defendant in the sum of $1791.73 together with interest and legal fees in accordance with the No-Fault Law and Regulations and costs and disbursements as taxed by the clerk.

Submit judgment.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: January 6, 2010

Footnotes

Footnote 1:Wiggins did see an orthopedist on March 7, 2005 on recommendation of Dr. Heyligers. The orthopedic consult was for injuries to Wiggins right knee. The orthopedic consult report makes no mention of the orthopedist having examined Wiggins cervical or lumbar spine or recommending any care, treatment or tests for the cervical or lumbar spine.

Footnote 2:Dr. Seliger would have been qualified to testify the MRIs were not medically necessary had the tests been ordered by a neurologist. However, the record reflects Wiggins was examined once by a neurologist who did not order or recommend either MRI.

Civil Court of the City of New York, Kings County

97213/2007

Plaintiff’s Counsel:

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn NY 11223

Tel.: (718)336-8076

Defendant’s Counsel

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road, Suite 220

Melville, NY 11747

Tel.: (631) 390-0011

Peter P. Sweeney, J.

In this action to recover assigned first-party no-fault benefits, both the plaintiff and defendant move for summary judgment.

Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). The burden then shifted to defendant to raise a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ).

In opposition to the motion and in support of its cross-motion, defendant demonstrated that after receiving the claims for assigned first-party no-fault benefits, it timely requested additional verification of the claims by sending a letter to plaintiff’s assignor on August 21, 2006, directing her to appear for an independent medical examination (IME) on a September 6, 2006. When she failed to appear for the examination, defendant sent her a second letter on September 7th, rescheduling the examination for September 20, 2006. Defendant’s submissions sufficiently demonstrated that the scheduling letters were mailed to plaintiff’s assignor on the above dates and [*2]that plaintiff’s assignor failed to appear for the examinations.

It is well settled that an insurer is required to pay or deny a claim for no-fault benefits within 30 days after the claimant provides proof of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]) and that its failure to do so will preclude it from raising most defenses to the claim (see Presbyterian Hosp. in City of NY, supra, 90 NY2d at 282). An insurer may extend the 30 day period in which it has to pay or deny a claim by making a request for additional verification of the claim “within 15 business days of receipt [of one] of the prescribed verification forms” (11 NYCRR 65-3.5[b]; see also Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2nd Dept 2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2nd Dept 2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2nd Dept 2001]). If the verification is not provided 30 calendar days after the original request, “[a]t a minimum … the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail” (11 NYCRR 65-3.6[b]). An insurer does not have to pay or deny a claim until it has received verification of all of the relevant information requested (see e.g. Montefiore Med. Ctr. v Gov’t Empls. Ins. Co., 34 AD3d 771 [2d Dept 2006]; see also Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2d Dept 2006]).

At oral argument, plaintiff’s counsel maintained, inter alia, that since defendant did not strictly comply with the time limitations set forth in 11 NYCRR 65.15[e][2], it lost the toll of the 30-day rule to pay or deny the claim. Plaintiff’s counsel pointed out that the second IME letter was mailed only 17 days after the first. She maintained that pursuant to 11 NYCRR 65.15[e][2], defendant was required to wait a full 30 days after the initial mailing of the IME request before mailing out the second request. The Court finds plaintiff’s argument to be unavailing.

In Infinity Health Products, Ltd. v Eveready Ins. Co., 67 AD3d 862, 2009 NY Slip Op 08585 [2d Dept ]), the Court recently held that it “[i]t would be inequitable to award summary judgment to the plaintiff, which ignored two verification requests, merely because the defendant, slightly prematurely, sent its second verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent” (2009 NY Slip Op 08585 at 2 [citations omitted]) The Court reasoned that “it would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests…. and [that] [s]uch a result is not contemplated by the no-fault law’ or its regulations, which should be interpreted to promote the expeditious handling of verification requests and prompt claim resolution” (Id.).

The Court held that “inasmuch as the plaintiff did not respond to either of the verification requests, the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . and that . . . plaintiff’s action [was therefore] premature” (Id.). The [*3]Court further held that “plaintiff was not entitled to summary judgment on the complaint, and the defendant’s cross motion for summary judgment dismissing the complaint should have been granted . . .without prejudice to commencement of a new action” (Id. [citations omitted]).

In this Court’s view, the holding in Infinity Health Products, Ltd. requires dismissal of the within action, without prejudice to its recommencement. Here, as in Infinity Health Products, Ltd., it would be inequitable to award summary judgment to the plaintiff, whose assignor ignored two verification requests, merely because the defendant did not strictly adhere to the time frames set forth in 11 NYCRR 65-3.6[b] for mailing out second requests for additional verification of a claim . It would be incongruous to conclude that 11 NYCRR 65-3.6[b] mandates a result that would penalize the defendant for its diligent attempts to obtain additional verification of the claims and reward plaintiff whose assignor ignored the requests.

This court recognizes that this case is not on all fours with Infinity Health Products, Ltd.. In Infinity Health Products, Ltd., the defendant sent its second written verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent. Here, the second written verification request was sent out 13 days before the expiration of the 30 day period referred to in 11 NYCRR 65-3.6[b]. Under the facts and circumstances of this case, however, this distinction does not warrant a contrary result.

When plaintiff’s assignor failed to appear for the IME on September 6, 2009, the re-scheduling letter was mailed to her on the following day. Unlike in Infinity Health Products, Ltd., once plaintiff’s assignor failed to appear for the IME, there is no legitimate reason why defendant should have waited a full 30 days from the mailing of the first letter to mail out the re-scheduling letter. Indeed, had defendant waited a full 30 days, it would have had acted in contravention of one of the primary policies underlying the “no-fault law”; which is “to promote the expeditious handling of verification requests and prompt claim resolution” (Infinity Health Products, Ltd., supra, 67 AD3d 862, 2009 NY Slip Op 08585 at 2). Further, the Court notes that when plaintiff’s assignor failed to appear for the re-scheduled IME, 30 days had elapsed from the time that the first scheduling letter had been sent to her.

Based on the foregoing, it is hereby

ORDERED that Plaintiff’s motion for summary Judgment is DENIED; and it is further

ORDERED that defendant’s cross-motion for summary judgment dismissing the complaint is GRANTED to the extent that plaintiff’s complaint is DISMISSED without prejudice to the commencement of a new action.

This constitutes the decision and order of the court.

[*4]Dated: January 6, 2010__________________________

PETER P. SWEENEY

Civil Court Judge

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Callan, Koster, Brady & Brennan, LLP, Uniondale, N.Y. (Michael P. Kandler and Eric L. Shoikhetman of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered March 6, 2009, as granted the defendant’s motion to vacate a clerk’s judgment of the same court entered September 4, 2008, which, upon the defendant’s failure to appear or answer the complaint, was in its favor and against the defendant in the principal sum of $19,325.61 and, in effect, denied, as academic, its motion to hold the defendant in contempt.

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the defendant’s motion to vacate the clerk’s judgment is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff’s motion to hold the defendant in contempt.

A defendant seeking to vacate a judgment entered upon its default in appearing and answering the complaint must demonstrate a reasonable excuse for its delay in appearing and answering, as well as the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]). The Special Deputy Superintendent of the State of New York Insurance Department acknowledged service upon him of the summons and complaint in this matter and notified the defendant, through Debra Sutton at its Pennsylvania office, of service as effected above (see Insurance Law § 1212; Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). In response, the defendant failed to meet its burden of showing a reasonable excuse for its failure to timely appear or answer the complaint and the existence of a meritorious defense. The affidavit of a senior claims examiner employed in the defendant’s Texas office averred that there was no record of the summons and complaint in the defendant’s computer system, but failed to demonstrate any knowledge of the office procedures employed in the handling of a summons and complaint received at the defendant’s Pennsylvania office. Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked (see Montefiore Med. Ctr. v Auto One Ins. Co., [*2]57 AD3d at 959; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544 [2008]).

Furthermore, the defendant failed to set forth facts from an individual with personal knowledge sufficient to demonstrate the existence of a meritorious defense. The affidavit of the plaintiff’s biller showed that the forms N-F5 and UB-92 relating to this matter were mailed on April 23, 2008, and signed for by the defendant on April 28, 2008. At that time, according to the defendant’s own records, there were still sufficient funds remaining under the policy to pay this bill (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). In response, the defendant offered only the same aforementioned affidavit, which also averred that there was no record of the bill in question in the defendant’s computer system. This was insufficient for a similar reason; that is, the affiant failed to show any knowledge of the office procedures employed in the handling of billing forms received at the defendant’s Pennsylvania office (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 968; see generally New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]; Peacock v Kalikow, 239 AD2d 188, 190 [1997]; cf. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the defendant’s motion to vacate the judgment entered upon its failure to appear or answer should have been denied.

The Supreme Court, in effect, denied, as academic, the plaintiff’s motion to hold the defendant in contempt. In light of our determination, we remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff’s motion. Fisher, J.P., Florio, Angiolillo, Eng and Roman, 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, Queens County (Carolyn E. Wade, J.), entered December 9, 2008. The order, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by adding thereto a provision that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76-77 [App Term, 9th & 10th Jud Dists 2009] [citation omitted]; see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]). In light of the foregoing, plaintiff’s remaining contentions lack merit.

In addition to staying the action pending an application to the Workers’ Compensation Board, the Civil Court’s order should have provided that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days, defendant’s motion for summary judgment dismissing the complaint is granted unless plaintiff shows good cause why the complaint should not be dismissed. We modify the order accordingly.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 30, 2009

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 (Fred J. Hirsh, J.), entered September 22, 2008. The order, insofar as appealed from as limited by the brief, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC is treated as an application for leave to appeal from that portion of the
order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision thereof which stayed the action is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignor in 2002, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for relief pursuant to CPLR 3124 and CPLR 3126. Plaintiffs appeal, as limited by their brief, from the order of the District Court insofar as it, without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC (A.B. Med.), sua sponte, stayed the action as to A.B. Med, so that said plaintiff “can make application to the appropriate court for the appointment of a receiver or liquidating trustee.”

We note that no appeal lies as of right from a sua sponte order staying an action (see UDCA 1702 [a] [2]). However, we deem the notice of appeal to be an application
for leave to appeal and, for the reasons stated in A.B. Med. Servs., PLLC a/a/o
Beauliere v Travelers Ins. Co. ( Misc 3d , 2009 NY Slip Op 29510 [App Term, 9th & 10th Jud Dists 2009]), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. is granted, the order, insofar as appealed from, is reversed, said provision is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 23, 2009

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 (Carolyn E. Wade, J.), entered September 30, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $2,693.12 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further
proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]). On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claim on the ground that the services rendered were medically unnecessary (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also annexed to the motion papers were affirmed peer review reports which set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact as to medical necessity.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 September 17, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 is granted.

In this action to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992, on the ground that plaintiff lacked standing to recover upon said claim because the claim form submitted to defendant identified only a physician as the provider and it neither referenced plaintiff, a professional services corporation, to whom the assignor had assigned his benefits, nor set forth the provider’s relationship to plaintiff. In denying defendant this relief, the Civil Court noted that the claim form contained a handwritten notation, “Bedford Park [sic],” in parentheses, alongside the name of the physician, in the portion of the form labeled provider, and plaintiff had annexed a copy of the assignment in favor of plaintiff as an exhibit to the cross motion brought by plaintiff. Defendant appeals from so much of the order as denied the branch of its motion seeking to dismiss plaintiff’s claim seeking the sum of $2,992.

The claim form at issue sought to recover payment on behalf of the physician who rendered the services and not on behalf of plaintiff. Indeed, while the handwritten notation on the claim form refers parenthetically to “Bedford Park Neurology,” this is not the name of plaintiff professional corporation. Consequently, plaintiff’s belated attempt to establish that the claimant physician was either an employee or principal of plaintiff, and that the claim form contains misinformation, is unavailing (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Plaintiff failed to submit a claim form which entitled it to payment, and may not correct the allegedly erroneous claim form once [*2]litigation has commenced (id.; cf. Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 should have been granted (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 23, 2009

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 October 9, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 9, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $575.30.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to a motion by plaintiff for summary judgment,
that plaintiff had failed to establish a prima facie case and that defendant had timely denied plaintiff’s bill on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, and defendant appealed. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Since the affidavit of defendant’s claims representative conceded receipt of the claim in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion 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]), plaintiff’s prima facie entitlement to summary judgment was established.

In opposition to the motion, defendant established that it had timely mailed its request for verification and subsequent denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that items were properly [*2]addressed and mailed (see e.g. 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 annexed a copy of the affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the equipment provided was not medically necessary (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant raised a triable issue of fact and, thus, plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 September 22, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $292.24 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground, among others, that the services rendered were not medically necessary (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]). Also annexed to the motion papers were affirmed independent medical examination reports which set forth a factual basis and medical rationale for the peer reviewers’ [*2]opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 (Diane A. Lebedeff, J.), entered July 29, 2008. The judgment, entered upon an order of the same court entered May 8, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied 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. Defendant opposed plaintiff’s motion and cross-
moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification request had been sent to plaintiff 29 days after the initial request for verification. A judgment was subsequently entered, and this appeal by defendant ensued.

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 29th 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. (___ AD3d ___, 2009 NY Slip Op 08585 [2d Dept 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 *2 [citations omitted]). In view of the foregoing, we reach no other [*2]issue.

Accordingly, the judgment is reversed, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted on the ground that the action is premature.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2009