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 (Dawn Marie Jimenez, J.), entered July 11, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s supervisor of medical billing in support of the motion 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, as the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish actual mailing of the denial of claim forms or its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely 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]). Accordingly, as defendant was precluded from interposing its
defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court properly granted plaintiff’s motion for summary judgment. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 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 (Rudolph E. Greco, Jr., J.), entered June 25, 2008, deemed from a judgment of the same court entered July 30, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention on appeal, the affirmations submitted by plaintiff’s president, a physician, in support of the motion were sufficient to comply with 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]).

On appeal, defendant characterizes its defense as one based upon fraud and relies solely on A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (3 Misc 3d 130[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists 2004]), in which the Appellate Term for the Ninth and Tenth Judicial Districts held that the insurer “establish[ed] the existence of a triable issue of fact as to whether there was a lack of coverage because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).” In the case at bar, defendant has not alleged that no motor vehicle accident occurred or [*2]that the accident was staged. Rather, defendant contends that it raised a triable issue as to whether the assignor’s daughter was in the car at the time of the accident. However, contrary to defendant’s contention, the assignor’s alleged misrepresentation of the presence of her daughter in the car is irrelevant to the question of whether the assignor’s injuries arose from an insured incident. Accordingly, as defendant failed to demonstrate the existence of a triable issue of fact in opposition to plaintiff’s motion for summary judgment, the judgment is affirmed.Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

Supreme Court, Kings County

15550/08

Plaintiff was represented by Jonathan Stein, Esq. of McDonnell & Adels, PLLC. Defendants were represented by Bruce Rosenberg, Esq. of Rosenberg Law, PC.

Jack M. Battaglia, J.

The Complaint of plaintiff New York Central Mutual Insurance Company seeks a declaratory judgment pursuant to CPLR 3001 that it “is under no obligation to pay any insurance claims submitted by” any of the 13 named defendants. The named defendants are John McGee, D.O., and 12 professional corporations, referred to collectively in the Complaint as the “PC Defendants”, each of which is alleged to be a “professional medical testing and treatment corporation . . . owned by Dr. John McGee, a licensed medical doctor” (Complaint, ¶ ¶ 6-17.)

Specifically, Plaintiff seeks a declaration that it

“is not legally obligated to pay any claims, outstanding or otherwise, because of Defendants’ wrongful conduct, which includes, but is not limited to, plaintiff’s assertions that:

(a) the PC DEFENDANTS are not wholly owned, and/or controlled, and/or operated by licensed physicians, as required by New York State statues [sic], regulations, and judicial precedent;

(b) the PC DEFENDANTS submitted bills seeking payment of no-fault benefits for services that were not provided;

( c) the PC DEFENDANTS have failed to provide verification requested by the plaintiffs [sic]; and

(d) the PC DEFENDANTS have failed to attend EUOs as requested by the plaintiffs [sic].” (Complaint, ¶ 13.)

The Complaint does not indicate the total “outstanding” claims or bills, either by number or total amount. There is attached, however, an Exhibit A, that is described as a chart of bills submitted to Plaintiff in 2007 that were “subject to EUO requests,” i.e., examination under oath, and perhaps other requests for bill verification, “totaling no less than $155,000 dollars.” (Id., ¶ ¶ 70-71.) The Exhibit lists 195 bills submitted by four of the 12 named PC Defendants for services purportedly rendered to 13 insureds.

In an Answer and Affirmative Defenses & Counterclaims, Defendants allege 23 “Affirmative Defenses” and 10 “Counterclaims.”

Plaintiff moved initially by Notice of Motion for an order, among other things, pursuant [*2]to CPLR 3211 (a) and (b), dismissing the Affirmative Defenses and Counterclaims. Before that motion was heard, Plaintiff moved by Order to Show Cause for, among other relief, “an immediate stay of all lawsuits and arbitrations pending against [Plaintiff], filed by Defendants.”

The Order to Show Cause, which is dated July 22, 2009 and signed by Hon. Ellen M. Spodek, includes an interim “stay,” specifically “that all no-fault lawsuits and arbitrations including, but not limited to, those set forth in Exhibit A’, annexed hereto, filed by Defendants and pending against Plaintiff, are hereby stayed pending the hearing of this motion.” This Exhibit lists 85 claims totaling $382,871.13, representing services purportedly provided to 38 insureds during the period 2005-2009 by seven of the PC Defendants, only three of which are providers named in the Exhibit A attached to the Complaint.

On the return date for the two motions, this Court refused to extend the “stay” contained in the Order to Show Cause, and the Court sua sponte raised the issue of severance, at least insofar as relief is sought against each of the 12 PC Defendants. (See CPLR 603.) “Because CPLR 603, unlike CPLR 602, does not use the words upon motion,’ it is widely assumed that the court can order a severance or separate trial sua sponte.” (Vincent C. Alexander, Practice Commentaries to CPLR 603 [McKinney’s 2006]; see also Valery A. Berger, M.D. v Liberty Mut. Ins. Co., 10 Misc 3d 139 [A], 2005 NY Slip Op 52204 [U] [App Term, 9th & 10th Jud Dists 2005]; St. Vincent’s Hosp. of Richmond v State Farm Mut. Auto. Ins. Co., 18 Misc 3d 1127 [A], 2007 NY Slip Op 52534 [U], * 3 [Sup Ct, Nassau County 2007].) The parties were requested to submit supplemental memoranda on the issue, which they did.

Generally, “[s]everance is inappropriate where . . . there are common factual and legal issues involved in the . . . causes of action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial.” (See Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726, 727 [2d Dept 2006]; see also Curreri v Heritage Prop. Invt. Trust, Inc., 48 AD3d 505, 507-08 [2d Dept 2008].) Appellate courts in the Second Department have had several occasions to apply these general standards to first-party no-fault claims of the type that are the subject of the instant action, although almost always on a defendant/insurer’s motion to sever.

The Second Department has upheld severance of claims for first-party no-fault benefits where the claims were for services rendered to as few as five insureds. (See Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536, 536-37 [2d Dept 2002]; see also Sunshine Imaging Association/wny MRI v Government Employees Ins. Co., 2009 NY Slip Op 6984, * 1- * 2 [4th Dept Oct. 2, 2009] [severance upheld/14 insureds]; compare Hempstead Gen. Hosp., 134 AD2d 569, 569-70 [2d Dept 1987] [denial of severance upheld/29 “claims”].) The Second Department has required severance of no-fault claims for 47 insureds. (See Poole v Allstate Ins. Co., 20 AD3d 518, 519 [2d Dept 2006].) “[I]t was an improvident exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact.” (Id.) [*3]

Appellate Term for the Second and Eleventh Judicial Districts has both upheld and required severance of no-fault claims for as few as three insureds. (See Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 144, 144 [App Term, 2d & 11th Jud Dists 2008] [severance upheld]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136 [A], 2005 NY Slip Op 50238 [U], * 1 [App Term, 2d & 11th Jud Dists 2005] [severance required]; see also Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139 [A], 2007 NY Slip Op 50997 [U], * 1- * 2 [App Term, 2d & 11th Jud Dists 2007] [severance required/5 insureds]; Valery A. Berger, M.D. v Liberty Mut. Ins. Co., 2005 NY Slip Op 52204 [U], * 1- * 2 [severance upheld/14 insureds].) “In light of the recent trend in cases involving the severance of no-fault causes of action under similar circumstances, . . . the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the . . . insurance policies are identical.” (Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 2005 NY Slip Op 50238 [U], at *1.)

In Civil Court of the City of New York, which has seen most of the first-party no-fault actions that have buried the trial courts of limited jurisdiction, a directive was issued by the Administrative Judge, Hon. Fern A. Fisher, directing the clerk “to reject any no-fault summons and complaint filed in the court which contains either multiple plaintiffs or multiple assigned claims unless an affirmation is filed with the papers signed by the attorney for the plaintiff, . . . outlining the reason for the joinder”; and directing Civil Court judges “to review the reasons for joinder of multiple plaintiffs or assigned claims whenever a case appears before them.” (Directives and Procedures, Severance of No-fault Plaintiffs or Assigned Claims, August 3, 2006.)

Here, again, the list of pending actions and arbitrations names 38 insureds who assigned 85 claims for first-party no-fault benefits to one or more of seven PC Defendants. This Court has little doubt that, were those 85 claims the subject of a single action by the providers against Plaintiff for payment, severance would be required. The only difference here is that Plaintiff is seeking a declaratory judgment that payment need not be made, asserting defenses to payment that it could assert, and undoubtedly has asserted, in the pending proceedings. To the extent, therefore, that Plaintiff’s contentions here as grounds for relief require the same type of individualized factual determinations, as would be required in a provider’s action for payment, severance would be required.

Three of the four grounds for relief asserted by Plaintiff – – that the PC Defendants “submitted bills seeking payment of no-fault benefits for services that were not provided,” “failed to provide verification requested,” and “failed to attend EUOs as requested” – – are defenses routinely asserted in provider actions for payment, and, most importantly, will require determination in accordance with the facts and attendant legal consequences particular to each insured, if not each bill for services. At the least, therefore, unless these grounds for relief are discontinued in this action, there must be severance. Because there are multiple providers as well as multiple insureds, no resulting action should include more than five insureds. [*4]

The remaining ground for relief asserted by Plaintiff, i.e., that the PC Defendants “are not wholly owned, and/or controlled, and/or operated by licensed physicians, as required by New York State statues [sic], regulations, and judicial precedent,” is different, because the focus is on the provider itself, and not the insured or any claim for benefits. As to this ground as to each PC Defendant, therefore, severance might not be required, or even warranted, notwithstanding that the number of insureds would require or justify severance as to other grounds for non-payment. (See Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131 [A], 2007 NY Slip Op 50052 [U], * 2 [App Term, 2d & 11th Jud Dists 2007].)

This ground, which has come to be known as the “fraudulent incorporation” defense (see id.), is founded on the Court of Appeals opinion in State Farm Mutual Automobile Insurance Co. v Mallela (4 NY3d 313 [2005].) Answering a certified question from the Second Circuit, the Court held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims.” (Id. at 319.) The Court relied on a regulation of the Superintendent of Insurance stating, “A provider of health care services is not eligible for reimbursement [of first-party no-fault benefits] if the provider fails to meet any applicable New York State licensing requirement.” (See id. at 320-22; 11 NYCRR § 65-3.16 [a] [12].) The Business Corporation Law “prohibit[s] non-physicians from sharing ownership in medical service corporations.” (See id. at 320 [footnote omitted]; Business Corporation Law § 1507.)

“State law mandates that professional service corporations be owned and controlled by licensed professionals . . . , and that licensed professionals render the services provided by such corporations.” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008 [citing Business Corporation Law § § 1503 [a], 1504 [a], 1507, 1508].) In an action by insurers of automobile insurance policies alleging that professional medical service corporations “were fraudulently incorporated in the names of licensed healthcare professionals while, in fact, the PCs were owned, operated, and controlled by unlicensed persons and their management companies in violation of applicable statutes and regulations” (see id. at 739], the plaintiffs successfully opposed a motion for summary judgment by a licensed physician and one of the PCs by submitting “sufficient evidentiary proof to raise an issue of fact as to whether [the PC] was actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law” (see id. at 740 [emphasis added].) The physician and PC had made a prima facie showing on their motion with evidence that the physician was the sole shareholder of the PC, “performed or oversaw all medical services provided by” the PC, and was the sole signatory on the PC’s bank account. (See id.)

No appellate court has given further meaning to the “actual control” requirement, or has otherwise elaborated on the concept of “fraudulent incorporation,” in the four-plus years since Mallela was decided. Which is not to say that the courts have not been dealing with issues raised by the decision; as of this writing, Mallela has been cited in approximately 100 published opinions of New York trial and appellate courts, the latter mostly from Appellate Term for the Second and Eleventh Judicial Districts, and in 13 published decisions of federal courts in the [*5]Southern and Eastern Districts. An appellate opinion might recite that an insurer “set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation” (see Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139 [A], 2009 NY Slip Op 51591 [U] [App Term, 2d & 11th Jud Dists 2009]), but not repeat or summarize those reasons for the benefit of trial judges.

Trial judges, nonetheless, struggle with fundamental questions raised by Mallela, such as whether a finding of “fraudulent incorporation” requires a finding of “fraud.” (See Andrew Carothers, M.D., P.C. v Bruno, Gerbino & Soriano, LLP, 2009 NY Slip Op 29413, * 6- * 8 [Civ Ct, Richmond County 2009] [Sweeney, J.].) Several published trial court opinions provide insight into the court’s identification and assessment of various factors, such as the ultimate disposition of the profits of the professional practice, without offering, probably wisely, any standard or threshold, quantitative or qualitative, of “actual control.” (See id. at * 1- * 6; AIU Ins. Co. v Deajess Med. Imaging, P.C., 2009 NY Slip Op 29079, * 3- * 8 [Sup Ct, Nassau County 2009] [Bucaria, J.]; Lenox Neurophychiatry Med., P.C. v State Farm Ins. Co., 22 Misc 3d 1118 [A], 2009 NY Slip Op 50178 [U], * 2- * 4 [Civ Ct, Richmond County 2009] [Levine, J.]; Utica Natl. Ins. Group v Luban, 22 Misc 3d 1107 [A], 2008 NY Slip Op 52610 [U], * 3- * 4 [Sup Ct, Queens County 2008] [Kitzes, J.]; A.B. Med. Servs. PLLC v Travelers Ind. Co., 20 Misc 3d 509, 510-14 [Dist Ct, Nassau County 2008] [Goodsell, J.]; Montgomery Med., P.C. v State Farm Ins. Co., 12 Misc 3d 1169 [A], 2006 NY Slip Op 51116 [U], * 4- * 5 [Dist Ct, Nassau County 2006] [Marber, J.]; Devonshire Surgical Facility v GEICO, 14 Misc 3d 1208 [A], 2006 NY Slip Op 52450 [U], * 2- * 3 [Civ Ct, NY County 2006] [Jaffe, J.]; see also Matter of Total MRI Mgt. LLC v Greenfield Imaging Assoc. Imaging, LLP, 11 Misc 3d 1062 [A], 2006 NY Slip Op 50367 [U], * 7 [Sup Ct, Nassau County 2006] [Austin, J.].)

Without a specific factual context, this Court will not offer more. It is clear from a review of the published opinions, particularly the only one that follows a trial on the issue ( see Andrew Carothers, M.D., P.C. v Bruno, Gerbino & Soriano, LLP, 2009 NY Slip Op 29413), that the inquiry is highly fact-intensive. Here, except for the respective places of business and respective dates of incorporation of the PC Defendants, the Complaint is absent of individualized or particularized allegations; rather, the Complaint speaks conclusorily throughout of the “PC Defendants.” Of substantial importance for the present motions, except for the allegations that each of the PC Defendants is “owned by Dr. John McGee, a licensed medical doctor” (Complaint, ¶ 6-17), there is virtually nothing to connect any one of the PC Defendants to any one or more of the others. Each of the practices operate at a different location, and except for two of the PCs that were incorporated on May 11, 1998, the other 10 were incorporated at different dates from March 1, 2001 through May 2, 2007. (Id.) There is nothing to suggest, moreover, that Dr. McGee’s relationship with each of the PC Defendants is the same, other than that he “owns” each of them.

In an action instituted by over 20 insurance companies against “three groups of defendants each comprised of some licensed defendants, provider defendants, and management [*6]defendants,” in which the insurers seek, in part, “a declaratory judgment concerning fraudulent incorporation,” Supreme Court granted a defense motion to the extent of severing “the causes of action against each group of defendants.” (See Autoone Ins. Co. v Manhattan Hgts. Med., P.C., 24 Misc 3d 1228 [A], 2009 NY Slip Op 51662 [U], * 7- * 8 [Sup Ct, Queens County 2009] [Markey, J.].) The court determined that “each group of defendants operated separately from other groups , . . . [that] the plaintiffs did not demonstrate that there is a logical connection between the activities of each,” and that “combining the multitude of claims by the numerous plaintiffs against three groups of defendants is likely to cause juror confusion.” (See id. at * 8.)

Here, again, there is nothing to link any one of the PC Defendants to any one or more of the others, except for the common ownership by Dr. McGee, which in and of itself does not establish “fraudulent incorporation” (see Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136 [A], 2008 NY Slip Op 51529 [U] [App Term, 2d & 11th Jud Dists 2008] [plaintiff’s owner was sole shareholder of not less than 20 professional service corporations].) The potential for juror confusion remains a factor in a declaratory judgment action (see State Farm Mut. Auto. Ins. Co., 25 AD3d 777, 778-779 [2d Dept 2006].) In the absence of evidence that Dr. McGee’s relationship with two or more of the PC Defendants is the same, there is no possibility of inconsistent verdicts. There should be at least sufficient factual allegations to meet the requirement for permissive joinder that the claims for relief “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences” (see CPLR 1002 [a].)

Indeed, here, there is not sufficient information available for the Court to determine whether the action may continue against more than one of the PC Defendants in a single action. For the present, the Court will allow the action to proceed under this index number against Dr. McGee and three of the PC Defendants, of Plaintiff’s choosing, provided that an amended complaint contain sufficient allegations to permit joinder. If, moreover, in addition to “fraudulent incorporation,” Plaintiff seeks relief on any of the other grounds alleged in the Complaint, the separate action(s) may seek that relief with respect to the claims made by no more than five insureds.

As to Plaintiff’s motion for a “stay,” it must be treated as a motion for preliminary injunction. (See St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145 [A], 2007 NY Slip Op 51154 [U], * 7 [Sup Ct, Queens County 2007].) “The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor.” (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005].) In actions similar to this one, i.e., seeking a declaration as to “fraudulent incorporation,” trial judges have granted the injunction based upon evidentiary showings by the respective plaintiffs. (See Autoone Ins. Co. v Manhattan Hgts. Med., P.C., 2009 NY Slip Op 51663 [U], at * 3); St. Paul Travelers Ins. Co. v Nandi, 2007 NY Slip Op 51154 [U], at * 7.)

Here, there may be a question as to whether, even as a pleading, the Complaint sufficiently alleges “fraudulent incorporation” (see Autoone Ins. Co. v Manhattan Hgts. Med., [*7]P.C., 2009 NY Slip Op 51662 [U], at * 4; CPLR 3013; CPLR 3016 [b]; CPLR 3211 [a] [7]); and, even if it does, there is no evidentiary support for injunctive relief.

The Court sua sponte orders severance of the causes of action alleged in the Complaint; within sixty (60) days from the date of this Decision and Order, Plaintiff shall serve an amended complaint that complies with this Decision and Order, particularly as to number of defendants and insureds.

Plaintiff’s motions are denied, with leave to renew after joinder of issue on an amended complaint, and otherwise in accordance with this Decision and Order.

November 25, 2009___________________

Jack M. Battaglia

Justice, Supreme Court

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.), entered July 7, 2008, deemed an appeal from an amended order of the same court entered October 29, 2008 (see CPLR 5520 [c]). The amended order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the amended order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the amended order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that there was a lack of coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise out of an insured incident. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that “[t]his has all the indicia of a staged accident.'” The instant appeal by plaintiff ensued.

Since defendant raised no issue in the District Court with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the District Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 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, Kings County (Peter Paul Sweeney, J.), entered May 28, 2008. The order granted defendant’s motion for leave to reargue and, upon reargument, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 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 (Leslie J. Purificacion, J.), entered May 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,718.40.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested,
$1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2009

[*1]

Supreme Court, Appellate Term, Second Department, November 17, 2009

APPEARANCES OF COUNSEL

Law Offices of Eva Gaspari, PLLC, Brooklyn, and Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**26 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant had partially paid plaintiff’s claim prior to the commencement of the action. At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence. After a nonjury trial on the issue of the propriety of the fees charged, the Civil Court granted judgment to defendant dismissing the complaint, and this appeal by plaintiff ensued.

A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]). Indeed, at trial, plaintiff’s witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004] [http://www.ins.state.ny.us/ogco2004/rg041003.htm (accessed Nov. 25, 2009)]). Consequently, [*2]since it is undisputed that the instant defendant reimbursed{**26 Misc 3d at 25} plaintiff pursuant to the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement. Accordingly, the judgment dismissing the complaint is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.

—[*1] Wollerstein & Futoran (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, dated July 10, 2008, which affirmed an order of the Civil Court of the City of New York, Kings County (Chan J.), dated March 8, 2007, which granted the plaintiff’s motion for summary judgment on the complaint in the principal sum of $2,028.50 and denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order dated July 10, 2008 is reversed, on the facts and in the exercise of discretion, with costs, the order of the Civil Court of the City of New York, Kings County, is reversed, the plaintiff’s motion for summary judgment on the complaint is denied, and the defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to commencement of a new action.

On November 15, 2000 Jermaine Thomson was injured in an automobile accident. At the time of the accident, the defendant Eveready Ins. Co. was Thomson’s no-fault insurance carrier. As a result of the accident, the plaintiff Infinity Health Products, Ltd., provided medical supplies to Thomson. On March 14, 2001 the plaintiff, as assignee of Thomson, submitted to the defendant a claim for payment for the medical supplies.

Seven days later, on March 21, 2001, the defendant sent a letter to the plaintiff acknowledging receipt of the bills and advising that it could not process the request until it received further verification of the claim. The plaintiff did not respond to this verification request. On April 17, 2001, 27 days after the first verification request was sent, the defendant sent a second verification request to the plaintiff. The plaintiff also did not respond to the second verification request.

In February 2005, the plaintiff commenced this action in the Civil Court of the City of New York, Kings County, inter alia, to recover the sum of $2,028.50, the cost of the medical [*2]supplies it provided to Thomson. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that the defendant failed to pay or deny the claim within 30 days as required by 11 NYCRR former 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). The defendant cross-moved for summary judgment dismissing the complaint, asserting, inter alia, that the action was “not ripe[ ] pending verification requests.”

The Civil Court granted the plaintiff’s motion and denied the defendant’s cross motion, holding that the defendant failed to precisely comply with regulations promulgated by the Superintendent of Insurance (hereinafter the Insurance regulations) because it did not wait a full 30 days (after the plaintiff failed to respond to the first verification request) before sending out a second verification request. The defendant appealed to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts, which affirmed the order in a 2-1 decision. The Appellate Term majority concluded, among other things, that the defendant’s follow-up verification demand, which was mailed 27 days after its initial demand, was “premature and without effect.”

Pursuant to Insurance Law § 5106 (a) and the Insurance regulations, an insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]; see also 11 NYCRR 65-3.5) An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim (see 11 NYCRR former 65.15 [d] [2]).

There is no dispute here that the defendant timely requested initial verification by sending out its verification request within seven days (on Mar. 21, 2001) after receipt of the plaintiff’s claim (on Mar. 14, 2001). There also is no dispute that the plaintiff did not respond to the defendant’s timely initial verification request. An insurer does not have to pay or deny a claim until it has received verification of all of the relevant information requested (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]). The issue in this case is whether an insurer loses the toll of the 30-day rule to pay or deny the claim, which is afforded by an initial timely request for verification, simply because its follow-up verification request is sent 3 days before the expiration of a full 30 days after a plaintiff fails to respond to the initial request. The Insurance regulations stated, in pertinent part, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested” (11 NYCRR former 65.15 [e] [2]).

Although the defendant in this case did not strictly comply with the time limitation set forth in the rule regarding the submission of a second verification request, under the circumstances of this case, the plaintiff is estopped from claiming that the defendant is precluded from asserting any defense to the claim. It 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 (see New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; see generally Chemical Bank v City of Jamestown, 122 AD2d 530 [1986]; Guberman v William Penn Life Ins. Co. of N.Y., 146 AD2d 8 [1989]). Indeed, in light of the particular factual circumstances herein, 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. Such 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.

Furthermore, 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 (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Thus, the plaintiff’s action is premature (see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Hospital for Joint [*3]Diseases v ELRAC, Inc., 11 AD3d 432 [2004]).

Accordingly, the 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 (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d at 553; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), without prejudice to commencement of a new action. Mastro, J.P., Santucci, Chambers and Lott, 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 (Diane A. Lebedeff, J.), entered September 29, 2008, deemed from a judgment of the same court entered November 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 29, 2008 order which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $168.50.

ORDERED that the judgment is reversed without costs, the order entered September 29, 2008 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered to plaintiff’s assignor were not medically necessary. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion, finding that defendant had failed to show that it had timely denied plaintiff’s claims, and granted plaintiff’s cross motion for summary judgment. Defendant appeals from the order. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the finding of the Civil Court, defendant demonstrated, based upon its standard office practice and procedure used to ensure that claim denial forms are properly addressed and mailed, that it timely mailed the denial of claim forms at issue (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; AJS Chiropractic, P.C. v Mercury Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50208[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, the report of the independent chiropractic/acupuncture examination performed on plaintiff’s assignor, accompanied by the examiner’s affidavit, was in admissible form, and provided a factual basis and medical rationale for defendant’s chiropractor’s opinion that the services at issue were not medically necessary (see AJS Chiropractic, P.C., 22 [*2]Misc 3d 133[A], 2009 NY Slip Op 50208[U]; 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]).

Since the affidavit of plaintiff’s chiropractor, which did not meaningfully refer to or discuss the conclusion of defendant’s chiropractor, was insufficient to rebut defendant’s prima facie showing (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]), defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 13, 2009

Civil Court of the City of New York, Richmond County

13134/07

Counsel for Plaintiff:

Joseph Sparacio

2555 Richmond Avenue

Staten Island, New York 10314

(718) 966-0055

Counsel for Defendant:

Diamond, Rutman, Costello & Si

291 Broadway, Suite 1100

New York, New York 10007

(212) 267-4731

Katherine A. Levine, J.

This case calls upon the court to again examine whether an expert witness called by a defendant insurance company may rely upon medical records, prepared by an entity other than the plaintiff medical service provider, to formulate an opinion as to the medical necessity of services provided by the plaintiff.

Plaintiff Popular Imaging, P.C., (“plaintiff” or “Popular Imaging”), a medical service provider, seeks to recover r payments from defendant State Farm Insurance Co. (“defendant” or “State Farm”) for an MRI of the lumbar spine that it provided to the assignor Belquis Perez (“assignor” or “Perez”) as a result of the injuries that she sustained in an automobile accident. Defendant claims that the services were medically unnecessary. At the trial, the parties stipulated to plaintiff’s prima facie case and to defendant’s timely denial of the claim. Therefore, the only issue before the court was whether the medical services provided was medically necessary. [*2]

Dr .James B. Sarno (“Dr. Sarno”), who is a board certified neurosurgeon, prepared a peer review report and testified that the MRI performed on the assignor’s lumbar spine was medically unnecessary. At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.

Dr. Sarno’s testimony referred, for the most part, to the records and reports of Dr. Noel Fleisher, a board certified neurologist, who was the assignor’s treating physician and who referred the assignor to the plaintiff for an MRI. On August 23, 2002, Dr. Fleisher issued a report as to the results of his neurological consultation with the assignor some two weeks after the accident. He set forth as his impressions post concussion syndrome, traumatic cervical radiculopathy, traumatic lumbar radiculopathy, and myofacial pain syndrome. He indicated that he would consider a MRI scan and/or EMG studies. He listed the prognosis as guarded. Dr. Sarno also listed on his peer review the March 7, 2003 letter from plaintiff to Dr. Fleisher explaining the results of the MRI of the lumbar spine.The peer review report also lists a number of other reports, letters or diagnosis from other entities that were independent of both Dr. Fleisher and plaintiff (“independent reports’) such as New York Neurology, P.C.; Central Park Physical Medicine and Rehabilitation, etc.

It is well settled that when records are prepared by a plaintiff medical service provider’s own principal, who treated the claimant and conducted the tests in questions, a plaintiff cannot viably argue that a defendant’s expert opinion “was not derived from a professional reliable source or to otherwise challenge the reliability of its own medical records and reports which were used as proof of its claim”. Andrew Carothers, M.D. (Martinez) v. GEICO, 2008 NY Slip Op 50456U, 18 Misc 3d 1147A (Civil Ct., Kings Co. 2008);. See, Cross Continental Medical v. Allstate, 13 Misc 3d 10 (App. Term 1st Dept. 2006).

In Velen Medical Supply Inc. V. Travelers Ins. Co., 20 Misc 3d 781 (Civil Ct., Queens Co. 2008), the court extended this ruling to permit testimony by a defendant’s expert based upon medical records and reports prepared by entities other than the plaintiff. The court first found that the records at issue fell within the fourth category of admissible opinion evidence set forth in the leading case of Wagman v. Bradshaw. 292 AD2d 84, 86-87 ( 2d Dept. 2002) : “material not in evidence provided the out- of-court material is accompanied by evidence establishing its reliability.” The court then cited to Hambsch v. N.Y.C. Transit Auth., 63 NY2d 723, 726 (1884) where the Court of Appeals held that an expert “may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion’ or if it comes from a witness subject to full cross examination.'”.

As to the Wagman issue, the Velen court found that in the context of no-fault, a plaintiff could not challenge the reliability of the assignors’ medical records and reports, even if those [*3]reports were not prepared by the plaintiff, if they were provided by plaintiff in response to defendant’s verification requests and were affirmatively relied upon by plaintiff as proof of claim. 20 Misc 3d at 784.See, Home Care Ortho. Med. Supply Inc., v. American MFRS. Mut. Ins. Co., 2007 NY Slip Op 50302[U] , 14 Misc 3d 139A (App. Term,1st Dept. 2007). Subsequently, Judge Sweeney extended this reasoning to the situation where the plaintiff’s assignor, rather than the plaintiff, provided the medical records to the defendant in response to a verification request. See, Primary Psychiatric Health, P.C., v. State Farm Mutual, 2007 NY Slip Op 50583U, 15 Misc 3d 1111A (Civil Ct., Kings Co. 2007). In fact, the Appellate Term has recently ruled that a defendant’s expert may not be precluded from testifying even though his opinion was based upon medical records prepared by physicians other than the plaintiff relating to treatment provided to the assignor. Bronx Expert Radiology v. NY Central Mutual, 2009 NY Slip Op 514575U, 2009 NY Misc. LEXIS 1796 ( App. Term, 1st Dept. 2009).

Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor^[FN1] and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment. Hazel Bruce Bishop v. Jafar, 302 AD2d 345 (2d Dept. 2003). Furthermore, an expert is entitled to rely upon facts set forth in medical records so long as he did not base his opinions upon the conclusions contained in the records. Meagan Murray v. Weisenfeld 37 AD3d 432, 434 (2d Dept. 2007); Bruce Bishop v. Jafar, supra. [*4]

Dr. Sarno then testified that it is generally accepted medical procedure to send a patient for a lumbar MRI where there is actual evidence of radiculopathy, irregularities in the neurological exam or failure to respond to conservative treatment. None of these factors were present in the documents reviewed by Dr. Sarno so as to justify the medical necessity of the lumbar MRI. On cross examination. Dr. Sarno reiterated that there were no actual neurological findings in the lower extremities to support a finding of radiculopathy He also testified that no EMG/NCV studies were even performed in the lumbar area of the body. Plaintiff presented no evidence or testimony in this matter, choosing instead to rely upon the aforementioned argument concerning the ability of Dr. Sarno to render an opinion and its cross examination of Dr. Sarno. Plaintiff has failed to refute the expert testimony and opinion and failed to produce evidence to rebut the lack of medical necessity for the lumbar MRI. As such, judgment is rendered in favor of defendant

.

Dated: November 5, 2009

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

Footnotes

Footnote 1:(Since Dr. Sarno relied for the most part upon Dr. Fleisher’s records, it is not necessary for this court to render an opinion about the admissibility of the panoply of reports from other doctors that were reviewed by Dr. Sarno and which accompanied his peer review report. However, it appears that these reports were provided to Sarno by DND – a third party- who apparently received all the records from plaintiff as a result of defendant’s verification request (defendant’s 2). As such, in accordance with the aforementioned precedent, Dr. Sarno could also properly rely upon these records in formulating an opinion.