SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), dated July 7, 2005, deemed from a judgment of the same court entered December 12, 2005 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s sole witness, its biller, testified that he generated the bills at issue and that he personally mailed them. Defendant called no witnesses. After trial, the Civil Court found in favor of defendant and dismissed the complaint, determining that
plaintiff had failed to establish that the bills were unpaid. This appeal by plaintiff ensued. A judgment was subsequently entered.

A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and 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 [2004]). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff’s contention, neither the admission of its bills into evidence nor plaintiff’s prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff’s obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: May 08, 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 August 1, 2007. The order denied defendant’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied defendant’s motion for summary judgment. Defendant appeals and we affirm.

Defendant’s follow-up verification requests, mailed on the 30th calendar day after it mailed the verification requests, were premature and without effect (see
General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op _____ [No. 2008-437 Q C], decided herewith; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, defendant’s motion for summary judgment was properly denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the order and grant defendant’s motion for summary judgment for the reasons stated in his dissenting opinion in St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op _____ [No. 2008-437 Q C], [*2]decided herewith).
Decision Date: May 08, 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 (Lila Gold, J.), dated July 23, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff failed to respond to verification requests. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

On appeal, plaintiff argues that defendant failed to establish the mailing of the verification requests because the affidavit of defendant’s claims specialist did not demonstrate personal knowledge of such mailing or set forth defendant’s standard office practices and procedures used to ensure that such requests are properly addressed and mailed. Contrary to plaintiff’s contention, the affidavit of defendant’s claims specialist sufficiently established the mailing of the verification requests (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]).

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

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

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: May 08, 2009

[*1]

Supreme Court, Appellate Term, Second Department, May 8, 2009

APPEARANCES OF COUNSEL

Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for appellant.

{**26 Misc 3d at 59} OPINION OF THE COURT

Memorandum.

Judgment modified by reducing the amount of the award to the principal sum of $2,627.90 and by providing that plaintiff’s claim for $228.55 for services rendered on February 22, 2006 is severed, so much of the order entered January 23, 2008 as granted plaintiff’s motion for summary judgment on the claim for $228.55 is vacated, and the branch of plaintiff’s motion which sought summary judgment on that claim is denied; as so modified, judgment affirmed without costs, and matter remanded to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment on the ground that defendant’s verification requests failed to toll the 30-day claim determination periods. With the exception of the claim for $228.55 for medical services provided on February 22, 2006, we agree.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was{**26 Misc 3d at 60} overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., [*2]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]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record establishes plaintiff’s prima facie entitlement to summary judgment.

In opposition, defendant argued that it timely denied plaintiff’s claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers’ compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim (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, plaintiff was not entitled to summary judgment upon this claim.

Defendant also opposed plaintiff’s motion for summary judgment on the ground that its verification and follow-up verification requests tolled defendant’s claim determination periods. However, since defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, as to the remaining claims, defendant failed to timely deny same and is precluded from raising most defenses, with exceptions not here relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Thus, plaintiff was properly granted summary judgment as to the remaining claims. For the foregoing{**26 Misc 3d at 61} reason, defendant’s cross motion for summary judgment was properly denied.

Golia, J. (dissenting and voting to reverse the judgment, vacate the order entered January 23, 2008, deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment, in the following memorandum). I need not discuss the factual and procedural history of this case as it has, for the most part, been addressed by the majority. Instead, I submit that the majority has erred in its judgment as to a matter of law. It has, in my opinion, misconstrued established principles of common law as well as the Appellate Division’s decision in New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]). In addition, the majority has misinterpreted Insurance Department Regulations (11 NYCRR) § 65-3.6 (b), the contents and purposes of which will be discussed below.

I should first, however, address the majority’s reluctance to require that plaintiff submit a proper and complete motion upon which summary judgment could be granted. I submit that the majority’s grant of summary judgment in favor of plaintiff is contrary to the Court of Appeals’ holding in Alvarez v Prospect Hosp. (68 NY2d 320 [1986]). In that case, the Court found that a[*3]“[f]ailure to make . . . [a] prima facie showing [of entitlement to judgment as a matter of law] requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id. at 324). This well-established principle, with its roots at common law, provides that all assertions made in a summary judgment motion remain unsubstantiated unless they are accompanied by sufficient evidence in admissible form contained within the four corners of the motion papers (see e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). In the present case, that principle was not met.

The current state of the law in no-fault cases requires that a plaintiff establish (1) that it mailed a claim, and (2) that payment is overdue. Nothing else. This plaintiff’s motion for summary judgment, however, should have been denied inasmuch as its moving papers failed to establish, by a proper affidavit, the mailing of plaintiff’s claim forms. The majority of the Appellate Term has often held that the inclusion of an NF-10 denial of claim form in the moving papers is sufficient to establish the mailing of a claim, a proposition with which I have previously disagreed. In the present case, the majority states that “any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms,{**26 Misc 3d at 62} and the affidavit of defendant’s claims representative.” What it does not state is that the NF-10 denial of claim forms were not attached to the moving papers, despite the fact that the moving plaintiff, intentionally or otherwise, asserted that such documents were, in fact, included. The majority then searches the record in order to establish mailing and found the NF-10 denial of claim forms in defendant’s opposing papers. Indeed, the Court of Appeals, in Winegrad v New York Univ. Med. Ctr. (64 NY2d 851, 853 [1985]), unanimously found that “bare conclusory assertions . . . do not establish that the cause of action has no merit so as to entitle defendants to summary judgment.” Clearly, if the moving papers fail to warrant granting summary judgment, then the court should not look to the opposing papers, as was done here. I have found no opposition to this principle except in relation to the no-fault line of cases. Yet, notwithstanding controlling law and the principles outlined in the above-mentioned cases, the majority chooses to establish an exception thereto by finding that while the moving papers are clearly deficient, nevertheless summary judgment should be awarded to the moving plaintiff based upon information obtained from a search of the opposing papers.

I further disagree with the majority’s interpretation of Insurance Department Regulations (11 NYCRR) § 65-3.6 (b) (the regulation). This provision states, as relevant here:

“At a minimum, if any requested verifications has [sic] 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 requested, either by telephone call, properly documented in the file, or by mail.”

In the underlying case, it is uncontroverted that defendant sent timely and properly mailed initial requests for verification and that on the 30th day after the first mailing, not having received the information requested, defendant mailed second requests for verification. There is no assertion that the mailing procedure was insufficient or that defendant actually received the [*4]requested items on the 30th day just after the second requests issued. Clearly, defendant did not receive the items requested on the 30th day, or the 31st day, or the 60th day, or at any time, to my knowledge. The issue that we are presently addressing then is: Whether or not defendant’s mailing of follow-up requests on the 30th day constitutes a fatal violation{**26 Misc 3d at 63} of the language of the regulation, while plaintiff’s failure to ever provide the material sought by the requests for verification as required by the regulation is properly excused? I do not believe that form over substance is to be exalted.

I agree with the majority in that there is no dispute regarding the fact that the follow-up requests were mailed to plaintiff on the 30th day after the initial requests were sent. Pursuant to General Construction Law § 20, the 30-day computation period is exclusive of the initial day of sending, i.e., the first day of computation begins on the day after the initial notice was mailed. This said, in judicial decision making, it is imperative that judges give effect to the laws and regulations that have been created or sanctioned by the democratically elected representatives of the people and that it be done in accordance with the intentions behind their creation insofar as such enforcement does not occasion “great inconvenience, or produce inequality, injustice or absurdity” (Zappone v Home Ins. Co., 55 NY2d 131, 137 [1982]). To selectively choose segments of the body of no-fault regulations and then to enforce them solely against the defendant and not the plaintiff is to eviscerate the doctrine of the separation of powers as enshrined in the State Constitution. Under the rubric of that doctrine, this court is bound to give effect to the disputed regulation as intended by the Insurance Department and not according to its own interpretation.

In addition, Zappone also elucidates what should always be the very essence of the judicial prerogative, i.e., the promotion of justice, the cornerstone of which is fairness. In expressing this principle, the majority in Zappone held that it is “always presumed that no unjust or unreasonable result was intended and the statute must be construed consonant with that presumption” (id.). Therefore, we should not create additional hurdles for a defendant to traverse that are not already included in the regulation, as promulgated by the Insurance Department, or in legislation.

In further support of this proposition, it is instructive to examine the intent of the Insurance Department in drafting Insurance Department Regulations (11 NYCRR) § 65-3.6 (b). I ardently believe that the Insurance Department’s reasoning behind section 65-3.6 (b) was to ensure that a claimant be given adequate notice of, and the opportunity to respond to, a verification request, inasmuch as a claim is not considered complete until the verification request is answered (Insurance Department{**26 Misc 3d at 64} Regulations [11 NYCRR] § 65-3.8 [b] [3]). The follow-up request serves as a reminder to the provider that the actual initial request remains open and unanswered. Otherwise, the insurance company would be pleased to wait forever to receive a response to the verification request. If there is no response, the 30-day time limit to pay or deny a claim never begins. I believe that the regulation was never intended to add another layer of judicial interpretation, a default of which would result in an automatic judgment given to a plaintiff who has utterly failed or refused to provide any verification of the genuineness of its claim. This is particularly so when one casts one’s mind back to the reason behind the creation of the no-fault system in the first instance, which was to speed up the resolution of all claims as well as the undeniable and inexcusable level of unchecked and unchallenged fraudulent no-fault claims. [*5]

The latest available New York State Insurance Department Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act (Report), dated January 15, 2008, states that of the 22,079 Insurance Frauds Bureau (IFB) insurance fraud reports received in 2007, 11,242 of those claims were no-fault-related. This is particularly staggering considering that there were 34 different categories of insurance fraud recorded and included in that data. Excluding the no-fault related IFB reports, the average number of reports of fraud per different category of insurance fraud was approximately 328. In simpler terms, out of the 34 possible categories of insurance fraud, approximately 51% of those reports received by the Insurance Department in 2007 pertained to the singular category of no-fault auto insurance (see Report). The disparity between the numbers of fraudulent no-fault reports in comparison to other categories of insurance fraud in 2007 is both unambiguous, inexcusable and unsustainable. I suggest that the number for the year 2008 will be no less damning.

The Comprehensive Automobile Insurance Reparations Act of 1973 was enacted to force downward pressure on insurance premiums and alleviate the already overburdened court system through stemming what was then considered a rampant tide of insurance claims. Due to an unexpected and exponential rise in no-fault fraud since the system’s inception, that flood has now grown into a tsunami of fraudulent activity. Those fraudulent claims cannot be discouraged, or indeed stopped, by awarding summary judgment in favor of plaintiff providers without them{**26 Misc 3d at 65} first having to satisfy the conditions precedent required of them by law. More specifically, and with reference to the case in point, despite plaintiff’s failure to tender any adequate and admissible evidence to prove defendant’s receipt of the initial claim form, the majority herein searched the opposing papers to satisfy plaintiff’s evidentiary burden in lieu of plaintiff satisfying the burden itself as required by statute or Court of Appeals’ precedent and indeed common sense. My colleagues’ willingness to discount plaintiff’s complete disregard of its obligation to provide verification of the claim and then to award plaintiff summary judgment, notwithstanding an initial and timely request for verification in admissible form by defendant, can, I submit, further encourage the rise of fraudulent claims.

Anyone who has even a modicum of familiarity with the no-fault regulations will note the distinction between the strict protocols for filing claims and issuing denials on the proper forms, and this particular regulation, which provides for a follow-up verification by a “telephone call” which need only be “documented in the file.” I am unaware of any other set of protocols in the no-fault regulations which provide for a follow up by a telephone call and which need only be documented in the insurer’s own file. Such comparative leniency lends support, at least to me, to the view that the sole purpose of Insurance Department Regulations (11 NYCRR) § 65-3.6 (b) is to ensure that the claimant is made aware that there is an outstanding unsatisfied request for verification so that it might supply such information to the insurer in order to complete the claim and begin the 30-day time limit for payment, denial or a further request for verification.

When consideration is given to the justness and reasonableness of the state of the No-Fault Law in New York as it currently stands, one must be struck by the inequality of responsibilities between provider and insurer. The double standard that currently exists in relation to time limits is neither hidden nor excused. Currently, pursuant to Insurance Department Regulations (11 NYCRR) § 65-1.1, “Conditions,” the period of time in which a [*6]claimant provider has to file a claim after the date of treatment is not strictly enforced provided there is a “clear and reasonable justification” for the delay. Indeed, if the insurer denies the claim without informing the claimant of its right to present such excuse, the denial is deemed invalid. This is in stark contrast to the majority’s contention that defendant should be liable to compensate plaintiff for unverified, unsubstantiated{**26 Misc 3d at 66} claims for medical services because it sent follow-up verification requests on the 30th, instead of the 31st day after sending its initial requests. This is so despite the first requests being legitimate, in that they were both sent on time and in proper form. This is so despite the fact that the clear and sole intention of the disputed regulation was to ensure that the provider is made aware of the pending request for verification and not, as the majority would have it, to have defendant suffer a preclusion and an award of summary judgment in favor of the plaintiff because defendant, arguably, sent follow-up requests less than 24 hours earlier than what was stipulated in the regulation.

In effect, the early service of a follow-up request causes no prejudice to a plaintiff as it is not bound by any time restraints similar to those that burden a defendant. Had the regulation required a plaintiff claimant to respond to verification requests within 30 days of receipt, it is conceivable that the early mailing of a follow-up request would deny a plaintiff the full period of time to which it was entitled. Consequently, it could constitute unfair grounds for summary judgment to be entered in favor of a defendant. However, the no-fault regulations, as written, impose no time limit on a plaintiff to respond to the verification request. The obvious reason is that it is in a plaintiff’s best interest to provide the verification as quickly as practicable so as to trigger the 30-day clock in which the insurer must pay or deny the claim. In the present circumstances, however, plaintiff, who still reasonably received the second notice of the pending verification, as was the original intention of the regulation, suffered no detriment and no prejudice as a result of the early mailing.

Pesce, P.J., and Rios, J., concur; Golia, J., dissents in a separate memorandum.

Civil Court of the City of New York, Richmond County

21817/07

Attorney’s for Defendant:

Gullo & Associates

520 86th Street

Brooklyn, New York 11209

Attorney’s for Plaintiff:

Phillips, Krantz & Levi, LLP

14 Avenue T

Brooklyn, New York 11223

Katherine A. Levine, J.

This case calls into question what precisely a peer review report, submitted by an insurance company in support of its denial for lack of medical necessity, must contain in order to defeat a plaintiff’s motion for summary judgment and/or to grant a defendant’s cross motion for summary judgment. As will be explained below, while a peer review report may be sufficient to defeat a plaintiff’s motion for summary judgment it may not be sufficient to warrant granting of summary judgment to the defendant insurer, even when the plaintiff does not submit evidence to rebut the report. This dichotomy, in the context of no-fault insurance, has not been definitively clarified by the higher courts.

Plaintiff Millennium Radiology, P.C, (“plaintiff” or “Millennium”) commenced this action to recover from defendant, New York Central Mutual Fire Insurance Company (“defendant” or “NY Central”), the sum of $1,791.71 for the two MRIs it performed upon its assignor, Adrine Grant (“Grant” or “assignor”). In support of its application for summary judgment, plaintiff contends that the defendant has not submitted competent medical evidence to support its denial of the claim for lack of medical necessity.

Defendant opposed plaintiff’s application and cross-moved for summary judgment on the [*2]grounds that the services provided by plaintiff were not medically necessary. In support of its denial, defendant submitted a copy of a peer review prepared by its chiropractor Albert Claps, D.C. who concluded that there was no justification for the MRIs performed upon the assignor because the referring provider failed to indicate whether the assignor was experiencing “an improvement or degradation with regard to her causally related symptoms” and because the doctor failed to reveal why the MRIs were ordered or how the outcomes of these tests would assist in the treatment of the assignor.

During oral argument, defendant maintained that the complaint should be dismissed because the plaintiff had failed to submit any medical evidence to rebut the peer review report. Plaintiff responded that it was under no duty to offer any evidence in rebuttal and that the conclusion of defendant’s expert regarding the medical necessity of the MRIs created an issue of fact which must be determined at trial.

A plaintiff makes a prima facie case “by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits were was overdue.” A.B. Medical Services, v. Liberty Mutual Ins. Co., 39 AD3d 779, 780 (2d Dept. 2007). See, Ins. Law, §5106(a); 11 NYCRR 65-3.8(c); Nyack Hospital v. Metropolitan Property & Cas. Co., 16 AD3d 564 (2d Dept. 2005); Mary Immaculate Hospital v. Allstate Ins. Co., 5 AD3d 742– 43 (2d Dept. 2004). It is clear that plaintiff has established its prima facie case. The affidavit of plaintiff’s billing manager exhaustively details the record keeping procedures of the business, and clearly sets forth the procedures for the creation and retention of bills, of which she has personal knowledge. See Manhattan Medical v. State Farm Mutual Automobile, 2008 NY Slip Op. 51844(U), 20 Misc 3d 1144(A)(Civil Ct., Richmond Co.2008) citing Second Medical v. Auto One Ins., 20 Misc 3d 291, 294-95 (Civil Ct., Kings Co. 2008). The affidavit further details that the bills at issue were made and kept in the ordinary course of business at the time the services were rendered and sets forth the precise mailing procedure that was followed. Moreover, the billing manager personally mailed the bill and forms.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 NYS2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). Thus, once a plaintiff has proven its prima facie case, the defendant must prove that the test was not medically necessary. Nir. v. Allstate Insurance Co., 7 Misc 3d 544, 546 (Civil Ct, Kings Co. 2005). A defendant may raise a triable issue of fact by submitting a denial of claim form stating that the claim is being denied based on a medical examination or peer review report requested by the insurer. The insurer need not set forth the medical rationale in its denial of claim form. Rather, the insurer need only submit a copy of that report to the applicant or its attorney upon written request. A.B. Medical Services, PLLC v GEICO, 39 AD3d 778, 779 ( 2d Dept. 2007); A B. Medical Services v. Liberty Mutual Ins. Co., 39 AD3d 779 ( 2d Dept. 2007). See, 11 NYCRR 65-3.8(b)(4).

Summary judgment is a “drastic and harsh” remedy and “should be used sparingly.” Utica National Ins. Group v. Providian Medical Services, P.C.,2008 N.Y Slip. Op.52610U, 22 Misc 3d 1107A ( Sup. Ct., Queens Co., 2008). See Epstein v. Scally, 99 AD2d 713, 714 (1st Dept. 1984 ). Summary judgment cannot be resolved by conflicting affidavits. Epstein v. Scally, [*3]supra . To grant summary judgment, it must clearly appear, on the papers alone, ” that no material and triable issue of fact is presented”. Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980); Utica Nat’l Ins. Group, supra . The court’s function on a motion for summary judgment is issue finding rather than issue determination. Precision Diagnostic Imaging, P.C., v. Travelers Insurance Co., 8 Misc 3d 435, 436 ( Civil Ct., N.Y Co. 2005), citing Brown v Achy, 9 AD3d 30, 33 n 2 (1st Dept. 2004). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

To defeat a plaintiff’s motion for summary judgment, the report must be in admissible form; i.e. signed and sworn to. See, Radiology Today v. GEICO, 20 Misc 3d 70

(App. Term, 2d Dept. 2008); A.B. Medical Services PLLC v. Lumbermens Mutual Cas. Co., 4 Misc 3d 86 (App. Term, 2 & 11th Jud. Dists. 2004). Some courts have also held that in additional to being in admissible form, the peer review report or medical examination must raise a triable issue of fact for lack of medical necessity by setting forth “a sufficiently detailed factual basis and medical rationale for the claim’s rejection.” Nir, supra at 546 citing Amaze Medical Supply v. Eagle Ins., 2 Misc 3d 134A, 2004 NY Slip Op. 51701U (App. Term, 2d and 11th Jud. Dists. 2003). Cross bridge Diagnostic Radiology, PC v. Progressive Ins. Co. 2008 NY Slip Op 51761U , 20 Misc 3d 143A (App. Term, 2d Dept. 2008); Delta Diagnostic v. Chubb Insurance Co., 17 Misc 3d 16 (App. Term, 2d Dept. 2007). The quantum of evidence presented in the peer review report need not rise to the level of evidence presented at trial through the peer review doctor to substantiate the peer review report’s conclusion as to lack of medical necessity. Nir, supra at 546-547.

Plaintiff errs in contending that its motion should be granted since the peer review report does not contain competent medical evidence to support a finding of medical necessity, as a party cannot establish its entitlement to judgment “merely by pointing to gaps in the opponent’ s proof.” Falah v. Stop & Shop Companies, Inc., 41 AD3d 638 (2d Dept. 2007). Furthermore, the peer review report is in admissible form and contains a sufficient rationale so as to create an issue of fact concerning medical necessity. While somewhat bare bones, the report does in artfully state that the MRI studies appear to be medically unnecessary because the referring doctor does not indicate whether the claimant experienced improvement or degradation with regard to her causally related symptoms, and there was no indication from the referring doctor why the MRIs were ordered or how the anticipated outcome of the tests would assist with the management of the assignor’s case.

However, while a peer review report may be sufficient to defeat a motion for summary judgment by the plaintiff, at trial, the peer review report must be supported by testimony regarding the “generally accepted medical/professional practice. “Nir, supra at 547 citing CityWide Social Work & Psychological Servs. v. Travelers Indemnity Co., 3 Misc 3d 608, 612 (Civil Ct., Kings Co. 2004). Generally accepted practice “is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling. CityWide, supra at 616. As this court held in H.M. Parekh v. Allstate Ins. Co., Index No. 2041/07, Civil Ct, Richmond County, 3/04/08, at trial a defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” H.M. Parekh v. Allstate Ins. Co., supra , citing Fifth Ave. Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 807-08 (Civ. Ct. Queens Co. 2003).

The instant peer review report, standing alone, does not rise to this standard and does not establish, as a matter of law, that the services rendered were not medically necessary. As such, this court finds the contents of the report to be insufficient to warrant the granting of defendant’s cross motion, even though the plaintiff failed to submit evidence to rebut the peer review.

Defendant cites a plethora of Appellate Term cases for the proposition that once the defendant insurer rebuts the inference that the services are not medically necessary, the plaintiff must refute this inference in order to create a triable issue of fact. The court first notes that the Appellate Term at times has not ruled that defendant must be awarded summary judgment unless plaintiff refutes the evidence offered by defendant, but only that “such proof may entitled the insurer to summary judgment.” Damadian MRI in Elmhurst v. Liberty Mutual Ins., 2 Misc 3d 128A, 787 NYS2d 919 (App. Term, 2d & 11th Jud. Dists 2004). See A.B. Medical Servs.v. NY Central Mutual Fire Ins., 3 Misc 3d 136A, 787 NYS2d 675 (App. Term 9 & 10th Jud. Dists. 2004)(“summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact). The Appellate Division has not addressed this dichotomy.

Since the report does not contain sufficient evidence to demonstrate the absence of any material issues of fact so as to warrant judgment to defendant (See, e.g.,. Delta Diagnostic v. Chubb, 17 Misc 3d 16, 18 (App. Term 2d Dept. 2007), this case will proceed to trial.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 30, 2009______________________Honorable Katherine A. Levine

Judge, Civil Court

Civil Court of the City of New York, Bronx County

020438-08

Appearance of Counsel-

Plaintiff- Michael J Palumbo, 188 East Post Road, suite 300, White Plains, NY 10601, 914-681-7117

Defendant- Teresa M. Spina, 170 Froehlich Farm Blvd, Woodbury, NY 11797, 516-496-5800

Elizabeth A. Taylor, J.

The issue before the Court is whether the submission of a notice to admit is [*2]sufficient to establish a prima facie case to recover no-fault first party benefits for unpaid medical expenses.

Under CPLR §3123 a notice to admit is a “written request for admission by the latter of the genuineness of any papers or documents…described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.” (CPLR §3123(a)). If a party fails to respond to a notice to admit within 20 days after service, the matters therein are deemed admitted for the purpose of the pending litigation. (CPLR §3123(a)). A notice to admit is a vehicle for resolving and eliminating matters that may be factually relevant but are not really in dispute, thus a notice to admit is not permissible to seek admissions to material issues. (Villa v. New York City Hous. Auth., 107 AD2d 619, 620 [1984][1st Dep’t]).

In order to establish a prima facie case for first party no-fault benefits a plaintiff must present the claim forms submitted to the insurer in admissible form, then establish that the payment of benefits is overdue, and prove the claim and assignment forms were served upon insurer. (Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742, 742-743 [2004][2nd Dep’t]). Laying the proper evidentiary foundation is commonly done by a witness who can testify that the claim form is a business record pursuant to CPLR §4518. However, it has become increasingly popular for plaintiffs to attempt to forgo the necessity of a witness through the use of interrogatory responses and responses or lack of responses to notices to admit to establish their prima facie case.

The Appellate Term, First Department has allowed the use of interrogatory responses to establish a prima facie case, stating “having admitted receipt of plaintiff’s claims for no-fault first party benefits, defendants may not now be heard to argue that plaintiff failed to establish that the claims had been mailed and received. (P.L.P. Acupuncture, P.C., v. Travelers Indem. Co., 19 Misc 3d 126(A) [2008][N.Y.App. Term 1st Dept.], quoting Fair Price Med. Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc 3d 8,9 [2007][N.Y.App. Term 1st Dept.]). However, there are notable differences between the use of interrogatories and a notice to admit. As previously mentioned, a notice to admit may not be used to seek answers to material issues, whereas, an interrogatory is given under oath and may be used to address any relevant question. (Villa at 620). Furthermore, the use of a defendant’s response to interrogatory questions in which it is stated that the claims were mailed and received followed by a subsequent denial is much different than the scenario in which a defendant fails to respond to a notice to admit and it is therefore deemed admitted that they received the claim.

Courts differ drastically on the treatment of the notice to admit to establish a prima facie claim. A number of courts find that the use of a notice to admit seeking admissions as to the receipt of relevant claim forms, bills and defendant’s denial of the same goes to the “heart of the matter” or is a “material issue” and therefore, inadmissible to establish plaintiff’s prima facie case. (see RJ Med. P.C. v. All-State Ins. Co., 15 Misc 3d 1140(A) [2007][NY City Civ. Ct. Bronx County]; PDG Psychological, [*3]P.C. v. State Farm Ins. Co., 12 Misc 3d 1183(A) [2006][N.Y.City Civ. Ct. Kings County]). Meanwhile, other courts have held that the information requested in the notice to admit does not individually go to the “heart of the matter” even though collectively they may be dispositive. (see Seaside Med., P.C. v. General Assur. Co., 16 Misc 3d 758 [2007][NY Dist. Ct. Suffolk]). Further, other courts have held that the admissions of the receipt of relevant claim forms, bills and denials by notice to admit does not go to the “heart of the matter” and is therefore permissible; however, it does not establish a prima facie case because the formalities of the business record exception to the hearsay rule have not been observed. (Bajaj v. General Assur. Co., 18 Misc 3d 25, 28 [2007][NY App. Term 2nd Dept.]).

This Court is cognizant that the Second Department and First Department often differ on matters concerning no-fault litigation. However, since the First Department has yet to speak on the matter, this Court is bound by the Bajaj decision of the Appellate Term, Second Department. “The doctrine of stare decisis requires trial courts…in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or [the Appellate Division of this department] pronounces a contrary rule.” (Striver 140 v. Cruz, 1 Misc 3d 29, 31 [2003][NY App. Term 2nd Dept.]), quoting Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [1984][2nd Dept.]).

The Second Department has held that a plaintiff must lay a proper foundation for the admissibility under the business records exception to establish a prima facie case. (Bajaj at 28). According to Bajaj,the use of a notice to admit to ask the defendants if they have received the claim form is a proper use of the notice to admit. (id.). If defendant fails to respond to this notice to admit, it is then admissible that the defendant in fact received plaintiff’s claim form. (id.). However, an acknowledgment by defendant that they received the claim form is not a concession of the facts set forth in the claim. (id.). It remains the plaintiff’s burden to lay the sufficient foundation establishing that the claim form is a business record, and as such, is admissible to prove the truth of the matters asserted therein. (id.). This holding continues to be upheld by the Second Department. (see Vista Surgical Supplies, Inc. v. State Farm Mutual Ins. Co., 22 Misc 3d 128(A) [2009][N.Y.App. Term 2nd Dept.]).

Accordingly, the Court finds that an admission by notice to admit that defendant received plaintiff’s claim form is not a concession of the facts set forth in the claim form. The plaintiff still has the burden to establish the claim form is admissible as a business record exception to the hearsay rule to prove the truth of the matters asserted therein. Due to their failure to establish that the claim forms are business records, plaintiffs have not established a prima facie case. It is noted that the plaintiffs called no witnesses to testify.

Accordingly, plaintiff’s actions are dismissed.

The foregoing shall constitute the decision and order of this Court.

Dated: __April 30, 2009_______________

J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered February 11, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint granted.

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 of lack of medical necessity. Plaintiff did not submit opposition papers. The Civil Court denied defendant’s motion for summary judgment, finding that an issue of fact exists as to whether the services rendered were medically necessary. The instant appeal by defendant ensued.

Defendant, through the submission of the affidavit of its claims support services supervisor and the affirmed independent medical examination report, made a prima facie showing that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not oppose defendant’s motion, defendant’s prima facie showing was unrebutted, thereby entitling defendant to summary judgment dismissing the complaint (see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op [*2]51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 28, 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 (Lee A. Mayersohn, J.), entered October 24, 2007. The order denied the petition of State Farm Mutual Automobile Insurance Company to vacate the arbitrator’s awards in favor of the New York City Transit Authority dismissing the claims.

Order modified by adding thereto a provision confirming the arbitrator’s awards; as so modified, affirmed without costs.

State Farm Mutual Automobile Insurance Company (State Farm) commenced compulsory arbitration proceedings against the New York City Transit Authority (Transit Authority), pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (see Insurance Law § 5105), seeking reimbursement for no-fault benefits paid on behalf of its subrogors. After the arbitration hearing, the arbitrator issued two awards in favor of the Transit Authority dismissing State Farm’s claims. State Farm thereafter commenced this special proceeding to vacate the arbitrator’s awards. The Civil Court denied the petition. The instant appeal by State Farm ensued.

Upon a review of the record, we find that the determination of the arbitrator, which denied State Farm’s claims for assigned first-party no-fault benefits, was supported by a reasonable hypothesis and was not arbitrary and capricious (see e.g. Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). Accordingly, the Civil Court properly denied the petition to vacate the arbitrator’s awards. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the awards (see Matter of [*2]Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 24, 2009

—[*1] Mura & Storm, PLLC, Buffalo (Roy A. Mura of counsel), for defendant-appellant.

Longstreet & Berry, LLP, Syracuse (Martha Berry of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered January 11, 2008. The order, insofar as appealed from, denied the motion of defendant for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover supplemental uninsured/underinsured motorist (SUM) benefits under an automobile insurance policy issued to her by defendant. Under the SUM endorsement, plaintiff was required to give defendant notice of a claim “[a]s soon as practicable.” Plaintiff promptly notified defendant of the motor vehicle accident, which occurred on May 22, 2000, and she filed a claim for no-fault benefits on July 20, 2000. On April 7, 2003, plaintiff gave defendant notice of her claim under the SUM endorsement. Defendant disclaimed coverage on the ground that plaintiff failed to provide timely notice of the SUM claim.

We conclude that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. “[W]here an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). Here, it is undisputed that plaintiff timely notified defendant of the accident and, shortly thereafter, filed a claim for no-fault benefits. Defendant failed to establish that it was prejudiced by plaintiff’s delay in providing notice of the SUM claim (see id. at 475-476). Present—Hurlbutt, J.P., Peradotto, Carni, Green and Pine, JJ.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 17, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 17, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $554.76 is granted. The Clerk is directed to enter judgment accordingly.

Plaintiff established a prima facie entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue. Even assuming that defendant timely denied plaintiff’s no-fault claims, the unsworn chiropractor’s report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form, a defect which requires its exclusion from consideration (see CPLR 2106; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], 2007 NY Slip Op 50138[U] [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur
Decision Date: April 22, 2009