SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 23, 2006, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 23, 2006 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment dismissing the complaint, dismissed the complaint.

Judgment reversed without costs and so much of the order as granted defendant summary judgment dismissing the complaint vacated.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claims based upon peer review reports which determined that there was a lack of medical necessity for the services rendered by plaintiff. In addition to the peer review reports, defendant submitted an affidavit executed by the chiropractor who performed the peer reviews. The court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted summary judgment to defendant dismissing the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

Contrary to plaintiff’s contention, defendant’s NF-10 denial of claim forms were not “vague” and “misleading” as to the insurer’s basis for denial. Each NF-10 form stated that defendant was paying nothing upon the claim and that the entire sum remained in dispute. In addition, the explanation of benefits forms which accompanied defendant’s NF-10 forms unequivocally stated that each claim was denied based upon a peer review report which also accompanied the applicable NF-10. As a result, the NF-10 forms were sufficient to apprise plaintiff of the reason for the denial of plaintiff’s claims (see A.B. Med. Servs., PLLC v Liberty [*2]Mut. Ins. Co., 39 AD3d 779 [2007]).

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the action (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Plaintiff’s remaining contention is raised for the first time on appeal and we decline to reach it.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

[*1]

Civil Court of the City of New York, Queens County, August 22, 2008

APPEARANCES OF COUNSEL

Israel Israel & Purdy, LLP, Great Neck (Scott H. Fisher of counsel), for plaintiff. Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for defendant.

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

William A. Viscovich, J.

In this matter, which appears to be a case of first impression, plaintiff provider brought the within action to recover payment under no-fault for medical services, namely, electromyogram testing and nerve conduction velocity testing (hereafter EMG and NCV testing, respectively) performed for Vanessa Garcia, its assignor. At trial, the parties stipulated to the sufficiency of plaintiff’s prima facie case and agreed that the only issue for this court to determine is whether defendant could demonstrate that the tests were not medically necessary.

Defendant’s unique and novel argument, as presented to this court over the course of several days of testimony, is that while the tests as prescribed were, in fact, medically necessary, they were done in a manner so incomplete that the results were useless in terms of the diagnosis and treatment of the patient. As such, defendant argues that they are rendered medically unnecessary as a practical matter and therefore not eligible for reimbursement under the state’s no-fault statutes. Plaintiff counters with three points: first, that the tests were medically necessary; second, that the test results were in fact useful; and third, that the only issue for this court to decide is the medical necessity of the tests as prescribed, the issue of whether or not they were done correctly being irrelevant.

In the instant case, State Farm’s medical expert, Dr. James B. Sarno, determined that a complete bilateral EMG/NCV of the upper and lower extremities was, in fact, medically necessary for the treatment and care of the assignor, Vanessa Garcia, for injuries she sustained in the subject motor vehicle accident. However, Dr. Sarno further determined that the EMG/NCV study as actually administered was so incompletely performed as to be contrary to the accepted standard of care for administering said test when utilizing it to assess “electro-diagnostic evidence of radiculopathy,” thus rendering it medically unnecessary. According to Dr. Sarno, this was particularly so in light of Ms. Garcia’s injuries, the suspicion of radiculopathy in both the upper and lower extremities, her complaints of pain and her nonresponsiveness to a rehabilitation program. The doctor’s position is that the tests, as administered, would have no utilization in determining and evaluating her past and future treatment.

According to Dr. Sarno, the tests were rendered useless due to the plaintiff’s failure to test the muscles in the forearm (other{**21 Misc 3d at 438} than the brachioradialis) and in the hand. As such, plaintiff failed to properly study the C7, C8 and T1 nerve roots, a deviation from the accepted standard of care for administering said test when “assessing evidence of electro-diagnostic radiculopathy.” In fact, Dr. Sarno testified that the impression purportedly obtained from said tests, a bilateral C4 radiculopathy, could not have been obtained to any degree of medical certainty from the incomplete nature of the muscles tested and that it was a deviation from accepted medical protocol to have concluded same from the minimal number of muscles tested.

As for the lower extremity EMG, Dr. Sarno maintained that by failing to test the muscles in the extensor hallus longus, the peronei, the glutei, all muscles in the quadriceps and the paraspinal muscles, the plaintiff deviated from the accepted standard of care for administering said test when assessing evidence of electrodiagnostic radiculopathy. As such, it is defendant’s contention that the subject EMG/NCV studies were found normal in the lower extremities due only to plaintiff’s failure to test the requisite muscles. Had they been done correctly, Dr. Sarno maintains, Ms. Garcia’s diagnosis and treatment plan may have been properly furthered and she could have actually benefitted from her rehabilitation.

Testifying for the plaintiff, Dr. Finkelstein, in sum and substance, agreed with Dr. Sarno that the tests were medically necessary. The disagreement between the two testifying experts, however, lies in Dr. Finkelstein’s belief that the tests as performed were not incomplete and that they were useful for the diagnosis and treatment of the patient. His position was that while the testing may not have been “thorough” it was “not incomplete.” More specifically, Dr. Finkelstein maintained that the tests as done had the benefit of confirming radiculopathies at both the C3-4 and C5-6 levels of the spine and could have an impact on the patient’s treatment.

Both Dr. Sarno and Dr. Finkelstein acknowledge that EMG/NCVs are extremely uncomfortable and painful for the patient. It should be noted that Dr. Sarno maintains that a proper testing regimen in this case required the placing of needles in 48 muscles, while Dr. Finkelstein’s position was that, for this case, the placing of needles in 22 muscles was sufficient, particularly if the patient was having a difficult time dealing with the procedure.{**21 Misc 3d at 439}

Conclusions of Law

New York’s no-fault law mandates that services must be reasonable and necessary in order to be reimbursable, but neither statute nor case law specifically addresses the issue of what constitutes “medical necessity” in the context of no-fault litigation. Given that the legislature, the Appellate Terms and the Appellate Divisions of this state have, it seems, yet to establish a specific definition or set of guidelines upon which this court could rely, they must be derived from lower court decisions. In this context, the two most regularly cited cases appear to be two matters decided in Queens County Civil Court. The first, Medical Expertise v Trumbull Ins. Co. (196 Misc 2d 389 [2003]), was written by Judge Bernice Siegal, and the second, Fifth Ave. Pain Control Ctr. v Allstate Ins. Co. (196 Misc 2d 801 [Civ Ct, Queens County 2003]), was written by Judge Augustus C. Agate when he sat in this court.

In Medical Expertise (supra), Judge Siegal cited with approval a definition of medical necessity provided by the New Jersey Supreme Court, to wit:

“[A] necessary medical expense under the [No-Fault] Act is one incurred for a treatment, procedure, or service ordered by a qualified physician based on the physician’s objectively reasonable belief that it will further the patient’s diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value must be verified by credible and reliable evidence (Oceanside Med. Healthcare v Progressive Ins., 2002 NY Slip Op 50188[U], *5 [Civ Ct, Kings County, May 9, 2002], quoting Thermographic Diagnostics Inc. v Allstate Ins. Co., 125 NJ 491, 512, 593 A2d 768, 780 [1991].)

“It is not whether or not some ‘positive’ findings may be fashioned from the results of psychological tests, but rather could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances.” (196 Misc 2d at 395 [internal quotation marks omitted].)

In Fifth Ave. Pain Control Ctr., Judge Agate determined that medical necessity entailed

“treatment or services which are appropriate, suitable, proper and conducive to the end sought by the{**21 Misc 3d at 440} professional health service in consultation with the patient. It means more than merely convenient or useful treatment or services, but treatment or services that are reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluating and treating the patient.” (196 Misc 2d at 807.)

He went on to say that

“for treatment or services to be medically necessary, it must be reasonably determined by the health care professional in consultation with the patient, that the treatment or services are consistent with the patient’s condition, circumstances and the best interest of the patient with regard to the type of treatment or services rendered, the amount of treatment or services rendered, and the duration of the treatment or services rendered.” (Id.)

Judge Agate went further, however, holding that in order to find that treatment or services are not medically necessary “it must be reasonably shown by medical evidence, in consideration of the patient’s condition, circumstances, and the best interest of the patient, 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.” (Id. at 807-808 [emphasis added].)

While the defendant agrees that the testing as prescribed by the plaintiff provider herein was clearly medically necessary, as defined by both Judges Siegal and Agate, its defense of lack of medical necessity is seemingly based on a single word (ineffective) in Judge Agate’s opinion. Defendant argues that the test is inherently unnecessary due to a supposedly improper methodology used in conducting it. Plaintiff counters that, as conducted, the tests were medically necessary and done correctly and that even if they were done incorrectly or incompletely, such failures do not arise, at least in the context of no-fault litigation for provider payment, to the level of being medically unnecessary.

Defendant’s position seeks a retrospective determination of medical necessity but this court can find nothing in the precedents discussed or in the no-fault statute and related regulations that establish such a position. In fact, to the contrary, they seem to require a determination of medical necessity be made prospectively from the standpoint of the insured at the time a treatment or service is rendered, not at a time when its effectiveness or lack thereof can be established retrospectively.{**21 Misc 3d at 441}

This is particularly true when one considers that the expenses sought in no-fault litigation are in reality expenses incurred by the insured, not the provider. A medical provider does not “incur” expenses when it treats an insured. Rather, the provider accepts an assignment of the insured’s benefits, allowing it to step into the shoes of the insured for litigation purposes. In theory, if not reality, the insured, not the provider, is the one seeking reimbursement for expenses already incurred. As such, the no-fault statute was clearly intended to “deliver better protection for the insured and to pay off claims quickly (NY Legis Ann, 1973, p 298)” (Pavone v Aetna Cas. & Sur. Co., 91 Misc 2d 658, 663 [Sup Ct, Monroe County 1977]), and no-fault regulations have been interpreted in favor of the insured’s rights (and through an assignment of benefits, the rights of the provider), especially as they relate toward speedy payment of proper claims on behalf of the insured. (See Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

To adopt defendant’s position, quite frankly, would be to dramatically and judicially change the very nature of no-fault litigation. It would result in these proceedings all too often delving into issues more related to medical malpractice or professional misconduct litigation, a fact reflected by defendant’s brief, which cites as authority a matter decided before the State Board of Professional Medical Conduct (see Matter of Dobson, 2006 NY Phys Dec LEXIS 411 [2006]). The nature of such litigation would defeat the very purpose of the no-fault statute which is “to permit liberal recovery of moneys actually expended in the treatment of accident-related injuries.” (Vidra v Shoman, 59 AD2d 714, 716 [2d Dept 1977]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [2d Dept 1996].) This is only reinforced by the Court of Appeals findings that the regulations “are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays.” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986].)

Nowhere in the statutory or regulatory scheme are “necessary expenses” defined to exclude charges for services that were duly prescribed, but improperly or inadequately performed. Insurance Law § 5102 (a) (1) defines “basic economic loss” as including, inter alia, “[a]ll necessary expenses incurred.” If either the legislature or the Superintendent of Insurance had intended that the determination regarding medical necessity should be made in hindsight, with regard for whether a procedure{**21 Misc 3d at 442} was properly performed, a statutory or regulatory change could be made to define necessary expenses as including payment for “properly performed medical procedures.” Neither has chosen to do so.

After a reading of the no-fault statutes and regulations, the precedents established by both Judge Siegal and Judge Agate and the testimony, evidence and briefs submitted in this matter, this court holds that even if defendant has demonstrated that a prescribed medical service or procedure may not have been conducted properly, reimbursement is warranted so long as said service or procedure was medically necessary. The issue of proper performance of such service or procedure is best left for other areas of litigation practice and/or, where appropriate, the State Board of Professional Medical Conduct.

The court further finds that the plaintiff in this matter, by stipulation of the parties, has established a prima facie case as to the medical necessity of the services rendered, thus shifting the burden of proof to the defendant to demonstrate, by a preponderance of the evidence, a lack of medical necessity for said services. Based on the testimony of the defendant’s own expert that the procedures in question, as prescribed, were, in fact, medically necessary and the rebuttal testimony of plaintiff’s expert explaining how the tests, as actually performed, could be of benefit to the patient, the defendant has failed to meet that burden.

Therefore, the court finds in favor of the plaintiff in the amount of $2,832.14, plus statutory interest, attorney fees and costs and disbursements.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 21, 2006, deemed in part from a judgment of said court entered February 1, 2007 (see CPLR 5501 [c]). The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment on its second cause of action. The judgment, entered pursuant to so much of the June 21, 2006 order as denied plaintiff’s cross motion for summary judgment on its first and third causes of action and granted defendant’s cross motion for summary judgment to the

extent of awarding defendant summary judgment on plaintiff’s first and third causes of action, dismissed plaintiff’s first and third causes of action.

Judgment affirmed without costs.

Order, insofar as appealed from, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of granting plaintiff summary judgment on its second cause of action, and matter remanded to the court below for the calculation of statutory interest [*2]and attorney’s fees thereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to three assignors, defendant moved, pursuant to CPLR 603, to sever plaintiff’s causes of action, plaintiff cross-moved for summary judgment, and defendant cross-moved for summary judgment. The court below granted defendant’s severance motion, denied plaintiff’s cross motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of granting defendant partial summary judgment with respect to plaintiff’s first cause of action (regarding assignor Andree Sarjoo) and third cause of action (regarding assignor Romelle Archer). Plaintiff appeals, arguing that it was entitled to summary judgment upon its three causes of action.

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 overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (see e.g. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). 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 “PIP Litigation Representative,” in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment.

In opposition to plaintiff’s cross motion, and in support of its own cross motion, defendant asserted that, with respect to plaintiff’s claims for services rendered to Mr. Sarjoo (the first cause of action) and Mr. Archer (the third cause of action), it timely denied the claims in question on the ground that the services provided were not medically necessary based on affirmed peer review reports. Contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation, as neither peer review doctor stated in his peer review report that his determination was based on a lack of documentation. Instead, both reports set forth a factual basis and medical rationale for the doctors’ opinions that the MRIs billed for were not medically necessary. Accordingly, since plaintiff did not rebut the evidence in support of defendant’s cross motion upon these causes of action, the court below properly granted defendant’s cross motion with respect to plaintiff’s first and third causes of action (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to plaintiff’s remaining cause of action to recover upon the claim for services rendered to Sean-Anthony Cherry (the second cause of action), defendant denied the claim based upon Mr. Cherry’s alleged failure to appear at scheduled examinations before trial (EUOs). Since the affidavit submitted by defendant was insufficient to establish Mr. Cherry’s nonappearance at said EUOs, defendant failed to raise a triable issue of fact (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also Midisland Med., PLLC v New York [*3]Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51983[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, contrary to the determination of the court below, plaintiff was entitled to summary judgment with respect to its second cause of action.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
CROSSBRIDGE DIAGNOSTIC RADIOLOGY, P.C.
a/a/o ANDRE SARJOO, SEAN-ANTHONY CHERRY
and ROMELLE ARCHER,

Appellant, [*4]

-against-
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part, and votes to affirm the judgment, and the order insofar as appealed from, in the following memorandum:

I concur with the majority in its affirmance of the lower court’s denial of plaintiff’s cross motion for summary judgment as to the first and third causes of action and the granting of defendant’s cross motion for summary judgment as to the first and third causes of action, encompassing the dismissal of those causes of action. I dissent as regards the awarding of summary judgment to plaintiff with respect to the second cause of action.

With regard to the first and third causes of action, I agree with the majority’s finding that “contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation.” I, nonetheless, disagree with the majority’s finding relating to the second cause of action regarding the sufficiency of notice to the assignor Mr. Sean-Anthony Cherry.

Defendant denied those claims upon the assertion that Mr. Cherry failed to appear at a scheduled examination before trial (EUO). The majority finds, and I agree, that the affidavit submitted by defendant was insufficient to establish, in admissible form, the fact that Mr. Cherry failed to appear at the EUO. Indeed, defendant’s affiant failed to specify how she obtained the information that Mr. Cherry had failed to appear. The majority then cites to the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]) in support of its conclusion granting judgment to plaintiff.

I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (id.).

In that case, although the Appellate Division, Second Department, nominally affirmed the majority ruling of the Appellate Term, the court specifically rejected the artificial distinction my colleagues created between “pre” and “post” claims. More importantly, the Appellate Division held that, “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis added]).

Inasmuch as the notices to appear for the EUO were sent directly to the assignor and, in addition, there is no affidavit from the assignor that he either appeared or that he did not receive such notice, the evidence of notice has not been rebutted (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire. Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, it is now incumbent upon plaintiff to establish, in admissible form, that the assignor complied with the condition precedent, that is the assignor’s submission to the EUO. [*5]

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability (see also Quality Health Prods., Inc. v Progressive Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op _____, No. 2007-148 Q C, decided herewith).

Accordingly, I would deny both cross motions for summary judgment relating to the second cause of action, as was done in Stephen Fogel Psychological, P.C..

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 12, 2007, deemed from a judgment of said court entered February 16, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 12, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,740.62.

Judgment reversed without costs, order entered January 12, 2007 vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affirmation of plaintiff’s officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary. [*2]

In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]).

We find that the affirmation submitted by the treating doctor, plaintiff’s officer, was not sufficient to establish a foundation for plaintiff’s claim forms. Contrary to plaintiff’s contention, defendant did not waive its objection to the admissibility of plaintiff’s claim forms by failing to raise it below (Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent plaintiff argues that it is possible to circumvent the requirement that said claim forms be submitted in admissible form by submitting the affirmation of the treating doctor, we need not reach that issue. Plaintiff’s doctor failed to sufficiently set forth the pertinent facts relevant to the claims. In light of the foregoing, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Dan Med., P.C., 14 Misc 3d at 47). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and said motion is denied.

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

Steinhardt, J., dissents in a separate memorandum.

Steinhardt, J., dissents and votes to affirm the judgment in the following memorandum:

To prevail on a motion for summary judgment in a no-fault claim, the plaintiff has the burden to demonstrate that the no-fault claim forms were submitted to the defendant and that the payment to the plaintiff is overdue (see Insurance Law § 5106 [a]; Fair Price Med Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To meet this burden, the plaintiff is required to establish the admissibility of the no-fault claim forms by demonstrating that the forms are business records (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d and 11th Jud Dists 2006]). To qualify a document as a business record, three foundational requirements must be met: (1) that the document was made in the regular course of business; (2) that it is the regular course of business to make such documents or records; and (3) that the document or record was made at the time of the act or transaction or within a reasonable time thereafter (see CPLR 4518). [*3]

In the instant matter, Boris Kleyman, M.D., executed affirmations in support of plaintiff’s claims. In each, he stated “I am an officer of . . . Plaintiff . . . who treated the Assignor . . . and having reviewed the Assignor’s file, I am fully familiar with the facts and circumstances of this matter and make this affirmation based upon personal knowledge” (emphasis added). Plaintiff submitted additional affidavits in support of the motion, including one by Enrique Escala, the “Office Services Supervisor” for the attorneys who handle the processing of plaintiff’s no-fault claims. Said affidavit outlined the procedures employed by him with reference to the mailing of the documentation in question to defendant.

Contrary to the opinion expressed by my learned colleagues, I find that the documents submitted by plaintiff in support of the motion, taken in their totality, qualify as business records and that they clearly fulfill the requirements for admissibility as set forth in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [2006], supra). Plaintiff, therefore, in my opinion, met its burden and is entitled to the granting of summary judgment in its favor.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Order modified by providing that defendant’s cross motion to dismiss the complaint is denied; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), based upon a Virginia court’s order rescinding the subject insurance policy. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint. Plaintiff appeals.
An objection based on CPLR 3211 (a) (5) must be raised either by motion made before service of the responsive pleading is required or in the responsive pleading (see CPLR 3211 [e]). As defendant did neither, its post-answer cross motion to dismiss should have been denied. [*2]
Turning to plaintiff’s motion for summary judgment, we note that defendant raised no issue below or on appeal with respect to plaintiff’s establishment of its prima facie case, and we therefore do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant made the same collateral estoppel argument it proffered in support of its cross motion to dismiss. It submitted a petition commencing an action in a Virginia court seeking a declaratory judgment voiding the subject insurance policy on the ground that the insured made material misrepresentations on his application for insurance including, inter alia, that he resided in, and his car was to be garaged in, Virginia. Defendant further submitted an uncertified order of a Virginia court, dated April 4, 2005, which provided that the subject insurance policy was “rescinded, void ab initio, and of no effect.”
We note at the outset that defendant may not invoke the doctrine of collateral estoppel against plaintiff herein because plaintiff was not a party to the Virginia proceeding, which was commenced by defendant herein against its insured. Prior to the commencement of the Virginia proceeding, plaintiff was assigned the instant claims by two eligible injured persons, neither of whom are the named insured but both of whom were allegedly eligible for benefits under said policy. Plaintiff was therefore not “afforded a full and fair opportunity to contest” the Virginia order, nor was it in privity with one who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-487 [1979]). We find, however, that the submission of the aforementioned documents is sufficient to demonstrate a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant has raised a triable issue of fact as to whether there was coverage under the subject insurance policy (see Hernandez v City of New York, 35 AD3d 812, 813 [2006]; Matter of Eagle Ins. Co. v
Singletary, 279 AD2d 56 [2000]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90
NY2d 195 [1997], supra). Therefore, plaintiff’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
Respondent.
Golia, J., concurs in the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not [*3]the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 11, 2006. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on plaintiff’s claim for $694; as so modified, 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, asserting that it timely denied plaintiff’s $694 claim on the ground that the supplies provided were not
medically necessary based on an affirmed peer review report, and that it timely denied plaintiff’s $1,021 and $289 claims based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms since it described in detail the standard office practice and procedure [*2]used to ensure that the verification requests and denial of claim forms were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

While plaintiff argues that the affirmed peer review report submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the supplies provided were medically necessary, this contention is raised for the first time on appeal. In any event, it lacks merit because the affirmed peer review report set forth a factual basis and medical rationale for the determination that the supplies provided were not medically necessary, thereby raising a triable issue of fact as to plaintiff’s $694 claim (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Turning to plaintiff’s remaining claims ($1,021 and $289), while defendant asserted that it timely denied said claims based on the assignor’s failure to appear for
two scheduled IMEs, defendant failed to establish by proof in admissible form that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the claim for $694.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
QUALITY HEALTH PRODUCTS, P.C.
a/a/o MALIK BUNNCHE,

Appellant,

-against- [*3]
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum.

I concur with the majority as to its affirmance of the lower court’s denial of plaintiff’s summary judgment motion with respect to the $694 claim, which claim was denied based on a sufficient and timely peer review report.

I also concur with the majority in its finding that “[c]ontrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms….”

However, I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]).

In that case, the Appellate Division, Second Department, while affirming the majority ruling of the Appellate Term, specifically rejected the distinction the Appellate Term created between “pre” and “post” claims. More importantly, the Appellate Division held that the “appearance of the insured for IMEs [independent medical examinations] at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis supplied]).

Inasmuch as my colleagues and I agree that the notices were sent, it is now incumbent upon plaintiff to establish compliance with the condition precedent, that is the assignor’s submission to an IME.

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance at the IME, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

District Court of Nassau County, First District

13451/07

Rachel L. Kaufman, Esq., Law Office of Robert E. Dash, Esqs., 6800 Jericho Turnpike, Suite 200A West, Syosset, New York 11791, (516) 931-5668, for the Plaintiff.

Richard A. D’Arrigo, Esq.

Nicolini, Paradise, Ferretti & Sabella, PLLC, 114 Old Country Road, P.O. Box 9006, Mineola, New York 11501, (516) 741-6355.

Andrew M. Engel, J.

This action seeking to recover no-fault first party benefits involves twenty-three (23) bills for chiropractic services allegedly performed by the Plaintiff totaling $1,975.28. The action was commenced on April 11, 2007. Issue was joined on or about May 22, 2007. The Plaintiff now moves for summary judgment, alleging that it timely submitted its claim forms to the Defendant and that the claims are overdue. The Defendant opposes the motion, alleging that it never received three (3) of the Plaintiff’s bills, that it timely denied seventeen (17) of the Plaintiff’s bills, and that it failed to deny three (3) of the Plaintiff’s bills.

To establish its prima facie right to summary judgment the Plaintiff must demonstrate submit “evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no fault benefits was overdue (citations omitted).” Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 (2nd Dept. [*2]2004); See also: A.B. Medical Services, PLLC v. Liberty Mutual Insurance Company, 39 AD3d 779, 835 NYS2d 614 (2nd Dept. 2007); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007); New York & Presbyterian Hospital v. American Transit Insurance Company, 45 AD3d 822, 846 NYS2d 352 (2nd Dept. 2007); New York and Presbyterian Hospital v. Countrywide Insurance Company, 44 AD3d 729, 843 NYS2d 662 (2nd Dept. 2007) Benefits are overdue if “not paid within 30 calendar days after the insurer receives proof of claim ….” 11 N.Y.C.R.R. § 65-3.8(a)(1); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . at 278, 660 NYS2d 536, 537 {90 NY2d 274} (1997); Fair Price Medical Supply Corp. v. Travelers Indemnity Company, 42 AD3d 277, 837 NYS2d 350 (2nd Dept. 2007); New York and Presbyterian Hospital v. Selective Insurance Company of America, 43 AD3d 1019, 842 NYS2d 63 (2nd Dept. 2007)

The Plaintiff attempts to meet its burden with the affidavit of Frank Amatulli, D.C. Dr. Amatulli was the assignor’s treating chiropractor and bases his affidavit upon his personal knowledge of this patient, the office practices and procedures he created and supervises, and his review of the patient’s treatment and billing records. Dr. Amatulli’s affidavit lays a proper business record foundation for the twenty-three (23) bills in question, See: Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc 3d 44, 829 NYS2d 404 (App. Term 2nd & 11th Jud. Dists. 2006); Fortune Medical, P.C. v. Allstate Insurance Co., 14 Misc 3d 136, 836 NYS2d 492 (App. Term 9th & 10 Jud. Dists. 2007); Ontario Medical, P.C. v. Sea Side Medical, P.C., 15 Misc 3d 129, 2007 WL 926349 (App. Term 9th & 10 Jud. Dists. 2007); V.S. Medical Services, P.C. v. One Beacon Insurance, 14 Misc 3d 142, 836 NYS2d 504 (App. Term 2nd & 11th Jud. Dists. 2006), providing for the admission of the “properly completed claim form[s], which suffice[] on [their] face to establish the particulars of the nature and extent of the injuries and [health benefits] received and contemplated’ (11 NYCRR § 65-1.1), and the proof of the fact and amount of loss sustained’ (Insurance Law § 5106[a])[.]” Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128, 784 NYS2d 918 (2nd and 11th Jud. Dist. 2003); Damadian MRI In Elmhurst, P.C. v. Liberty Mutual Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003)

The Defendant admits the timely receipt of twenty (20) of the Plaintiff’s claim forms, thereby curing any defect which may exist in the Plaintiff’s proof of mailing. Prestige Medical & Surgical Supply Inc. v. Clarendon National Insurance Company, 13 Misc 3d 127(A), 824 NYS2d 758 (App. Term 2nd and 11th Jud. Dists. 2006); Magnezit Medical Care, P.C. v. New York Central Mutual Fire Ins. Co., 12 Misc 3d 144(A), 824 NYS2d 763 (App. Term 2nd and 11th Jud. Dists. 2006) Under such circumstances, the Plaintiff has, prima facie, demonstrated its right to summary judgment on twenty (20) of the twenty-three (23) claims in dispute. Moreover, the Defendant admits that for three (3) of these twenty (20) claims ^[FN1] it failed to pay or deny same, entitling the Plaintiff to summary judgment thereon in the sum of $101.10.

As to the remaining three (3) bills the Defendant denies their receipt. The Plaintiff may nevertheless demonstrate its prima facie entitlement to summary judgment thereon by providing proof of their service through “a standard office practice or procedure designed to ensure that items are properly addressed and mailed” Residential Holding Corp. v. Scottsdale Insurance [*3]Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); See also: New York and Presbyterian Hospital v. Allstate Insurance Co., 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006) On this score, Dr. Amatulli alleges that “it was the regular course of business for [his] office, UNIONDALE CHIROPRACTIC OFFICE, P.C., to generate a bill on the computer for all treatment/services rendered to its patients at the time of the patient’s office visit or within a reasonable time thereafter[.]” (Amatulli Affidavit 3/25/08, ¶ 10) According to Dr. Amatulli, these bills are then “placed in a standard envelope with proper postage attached[,] … [e]ither [h]e or a member of [his] office staff checks to ensure the bills are properly addressed … [and] the envelope containing the bill(s) is submitted to the local post office by [him] or another member of the office staff and/or deposited into a receptacle of the USPS.” (Amatulli Affidavit 3/25/08, ¶¶ 11-13)

In the past this court (Engel, J.) has expressed doubts about the sufficiency of various insurance companies’ proof of mailing which essentially alleged that a denial is generated on the date which appears thereon, is placed in an envelope which then travels around the office through a series of mail bins until ultimately delivered to the post office by an outside courier. Absent from these alleged office procedures was any indication that there existed a mailing list used to compare the names and addresses on the denial forms with the items mailed, or a list indicating the number of denial forms generated on a given day along with some identification of the matters in which the denial forms were generated, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service, or that anyone routinely checked to see if the total number of envelopes mailed matched the number of denial forms generated on a particular day. See: Matter of Lumbermens Mut. Casualty Co., 135 AD2d 373, 521 NYS2d 432 (1st Dept.1987); State-Wide Insurance Co. v. Simmons, 201 AD2d 655, 608 NYS2d 274 (2nd Dept.1994); Clark v. Columbian Mut. Life Insurance Co., 221 AD2d 227, 633 NYS2d 311 (1st Dept.1995); L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mutual Casualty Co., 191 AD2d 680, 595 NYS2d 802 (2nd Dept.1993) It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist.Ct. Nassau Co. 2008); Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co., 17 Misc 3d 1135(A), 851 NYS2d 67 (Dist.Ct. Nassau Co. 2007); New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company, 16 Misc 3d 1104(A), 841 NYS2d 827 (Dist.Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe “a standard office practice[] or procedure[] designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority.

The only difference between the standard office practice or procedure approved by the Appellate Division in St. Vincent’s Hospital, id. and the standard office practice or procedure described by Dr. Amatulli is the absence of mail bins in Dr. Amatulli’s office. Accordingly, this court finds that the Plaintiff’s practice of placing its bills in a standard envelope, affixing proper postage, checking the address, and delivering the envelope to the post office or a USPS receptacle to be “a standard office practice[] or procedure[] designed to ensure that items were [*4]properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, id.

“The defendant’s denial of receipt of the claims submitted by plaintiff …, [is] insufficient to rebut the presumption of receipt upon said plaintiff’s proof of proper mailing, and fails to raise an issue of fact as to these claims ( cf. Kihl v. Pfeffer, 94 NY2d 118 [1999]; King’s Med. Supply v. Progressive Ins., 3 Misc 3d 126[A], 2004 NY Slip Op 50311[U] [App Term, 2d & 11th Jud Dists] ).” A.B. Medical Services PLLC v. Motor Vehicle Accident Indemnification Corp., 6 Misc 3d 131(A), 800 NYS2d 341 (App.Term 2nd and 11th Jud. Dists 2005); See also: ATM One, LLC v. Landaverde, 2 NY3d 472, 779 NYS2d 808 (2004); A.B. Medical Services, PLLC v. American Transit Insurance Company, 15 Misc 3d 132(A), 839 NYS2d 431 (App.Term 2nd and 11th Jud. Dists.2007); A.B. Medical Services PLLC. V. USAA Cas. Ins. Co., 6 Misc 3d 126(A), 800 NYS2d 341 (App.Term 2nd and 11th Jud. Dists 2004) Accordingly, the Plaintiff is entitled to summary judgment on the three (3) bills totaling $246.24 which the Defendant denies receiving.^[FN2]

The Defendant having admitted its timely receipt of the remaining seventeen (17) bills, which carry a presumption of medical necessity, All County Open MRI & Diag. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 NYS2d 496 (App. Term 9th and 10th Jud. Depts. 2006); Damadian MRI in Elmhurst, P.C. v. Liberty Mutual Insurance Co., 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003), “[t]he burden then shifts to defendant who, if not precluded, may rebut the presumption and establish the lack of medical necessity by submitting proof, such as a detailed peer review report or the results of an IME, that the health benefits provided were not medically necessary (citations omitted).” Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Company, 7 Misc 3d 18, 793 NYS2d 661 (App.Term 2nd and 11th Jud. Dists. 2004) aff’d 35 NY3d 720, 827 NYS2d 217 (2nd Dept. 2006) See also: A.B. Medical Services PLLC v. Utica Mutual Insurance Company, 10 Misc 3d 50, 809 NYS2d 765 (App.Term 2nd and 11th Jud. Dists. 2005); Park Neurological Services P.C. v. Geico Insurance, 4 Misc 3d 95, 782 NYS2d 507 (App.Term 9th and 10th Jud. Dists. 2004)

As a threshold issue the Defendant must demonstrate that, absent timely verification requests, it properly denied the Plaintiff’s claims within thirty (30) days of their receipt, or it will be precluded from raising the defense of lack of medical necessity. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Mt. Sinai Hospital v. Triboro Coach Incorporated, 263 AD2d 11, 699 NYS2d 77 (2nd Dept. 1999); Church Avenue Medical Care, P.C. v. Allstate Insurance Company, 189 Misc 2d 340, 731 NYS2d 582 (App. Term 2nd Dept. 2001); Struhl v. Progressive Casualty Insurance Company, 7 Misc 3d 138(A), 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) The Defendant attempts to demonstrate the timely service of its denial of claim forms with the affidavits of Linda Bernstein, a Claims Representative, Lisa Russo, a Claims Support Services Supervisor, and Joseph Mandara, the President of All American Transport, Inc., a courier service employed by the Defendant.

The affidavit of Linda Bernstein is insufficient to establish the Defendant’s timely service of its denial of claim forms. While Ms. Bernstein alleges that she made her “affiramations (sic) [*5]based upon [her] personal knowledge[,]” she utterly “failed to set forth a basis to support her conclusory assertion,” First Aid Occupational Therapy, PLLC v. State Farm Fire and Casualty Company, 19 Misc 3d 143(A), Slip Copy, 2008 WL 2284874 (App.Term 2nd and 11th Jud. Dist. 2008) which is insufficient as a matter of law. See: Republic Western Insurance Company v. RCR Builders, Inc., 268 AD2d 574, 702 NYS2d 609 (2nd Dept. 2000); S & M Supply Inc. v. Allstate Insurance Company, 7 Misc 3d 130, 801 NYS2d 242 (App. Term 2nd and 11th Jud. Dists. 2005); Montefiore Medical Center v. Government Employees Insurance Company, 34 AD3d 771, 826 NYS2d 616 (2nd Dept. 2006); Struhl, M.D. v. Progressive Casualty Insurance Company, 7 Misc 3d 138, 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) Moreover, nowhere does Ms. Bernstein allege that she has any knowledge of the Defendant’s practices and procedures for the mailing of denial of claim forms. In fact, with regard to the mailing practices and procedures, Ms. Bernstein merely refers the court to the affidavit of Ms. Russo.

While Ms. Russo apparently does have knowledge of the Defendant’s “procedures for mailing of all documents sent from [the Melville State Farm] office,” (Russo Affidavit 6/11/08, ¶ 2), where she is located, the Defendant’s denials bear an address in Parsippany, New Jersey, which is the address to which the Plaintiff sent its bills. Moreover, while Ms. Russo attests that the denials were sent from her office in Melville, Ms. Bernstein attests that the denials were mailed from her office in Ballston Spa, New York. Neither Ms. Russo nor Ms. Bernstein claim to have any knowledge of the mailing procedures in the Defendant’s Parsippany, New Jersey office, nor do they attempt to explain how claims sent to the Parsippany, New Jersey office wind up in the Melville or Balston Spa offices to be denied.

The above notwithstanding, regardless of the office from which the Defendant’s denials were allegedly mailed, the affidavits upon which the Defendant relies do not describe “a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Residential Holding Corp. v. Scottsdale Insurance Company, supra .; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) [“office practice must be geared so as to ensure the likelihood that a notice … is always properly addressed and mailed.”] While, for the reasons set forth herein above, the Defendant has described a procedure designed to ensure that the denial of claim forms are properly mailed, none of the affidavits submitted by the Defendant describe any procedure used by the Defendant to ensure that they are properly addressed. Ms. Bernstein’s representation that “[a]ll denials on the bills referenced herein was (sic) mailed to the plaintiff at 482 Uniondale Ave., Uniondale, NY 11553[,]” (Bernstein Affidavit 6/11/08, ¶ 10) is conclusory and without probative value. Westchester Medical Center v. Countrywide Insurance Company, 45 AD3d 676, 846 NYS2d 230 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005) Neither Ms. Bernstein, Ms. Russo nor Mr. Mandara even suggest how the address to which the Defendant’s denials were allegedly mailed was obtained or verified. While Ms. Russo represents that a Claims Service Assistant will “check to ensure that the document is dated with the actual date[,]” (Russo Affidavit 6/11/08, ¶ 8) neither she, nor anyone else on behalf of the Defendant indicates that anyone checks to ensure that the document is properly addressed. Clearly, half of the requirements necessary to demonstrate adequate proof of mailing is absent from the Defendant’s [*6]proof.

Having failed to properly demonstrate the timely service of denials of claim in response to the remaining seventeen (17) bills in question, the Plaintiff is entitled to summary judgment on these claims as well. Accordingly, the Plaintiff is entitled to the entry of a judgment in the sum of $1,975.28, plus interest and counsel fees pursuant to regulation and statute, along with the costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

August 7, 2008

___________________________

Andrew M. Engel

J.D.C.

Footnotes

Footnote 1: Bills dated July 15, 2002, January 14, 2003 and January 30, 2003 totaling $101.10

Footnote 2: Bills dated May 31, 2002, June 28, 2002 and March 2, 2004

[*1]

Civil Court of the City of New York, New York County, August 6, 2008

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Mineola, for plaintiff.

{**20 Misc 3d at 948} OPINION OF THE COURT

Arlene P. Bluth, J.

{**20 Misc 3d at 949}At trial, the parties stipulated to the following facts: The underlying accident occurred on July 31, 2006. The policy covering this accident was issued after April 5, 2002. Plaintiff submitted the claims to defendant more than 45 days after the final date of service and defendant timely denied the claims.

11 NYCRR 65-1.1 (b), part of the Superintendent of Insurance’s regulations (new regulations), requires that all policies issued on or after April 5, 2002 contain a mandatory personal injury protection endorsement (Endorsement). Automobile policies have a one-year term (see Insurance Law § 3425 [a] [8]), and both parties agree that at the time the instant policy was issued the new regulations were in effect. The portion of the Endorsement relevant here requires that claims be submitted to insurers within 45 days after services are rendered.

Plaintiff admits that she failed to fulfill the requirements of the Endorsement, and sent the bills after the 45-day time limit. At the trial, the defendant did not produce the policy. Plaintiff asserts that it was defendant’s burden to produce the policy in order to establish that the policy actually included the Endorsement; defendant asserts that because the Endorsement is mandatory under the new regulations, it applies whether or not the policy actually contains it, and so it is not necessary to produce the policy. This court agrees with defendant and finds the introduction of the policy at trial is not necessary to prove that it contained the mandatory Endorsement.

The parties were given an opportunity to submit posttrial memoranda of law. In support of its position, the defendant relies upon the very recent Appellate Term, Second Department case Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co. (19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [2008]), which holds that because the policy was issued after April 5, 2002, the Endorsement was mandatory and the defendant need not prove that the policy contained the Endorsement. Plaintiff did not distinguish Eagle on its facts, and indeed, on page four of her posttrial memorandum, acknowledges that if this court were bound to follow Eagle, then defendant would win. Instead, plaintiff claims that the law is different in this department. Plaintiff maintains that this court must follow SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [App Term, 1st Dept 2005]), which requires a finding for plaintiff.

Plaintiff asserts that SZ Med. requires that a defendant always produce the policy in order to support its position that{**20 Misc 3d at 950} the new regulations apply. By taking language out of context, plaintiff misreads the holding of SZ Med. Indeed, there is no split between the Appellate Terms because SZ Med. and Eagle both hold that once it is established that the policy was issued on or after April 5, 2002, then the new regulations must apply.

In SZ Med., plaintiff moved for summary judgment on its prima facie case for claims submitted between December 2002 and April 2003; defendant opposed, claiming the new regulations applied. The trial court denied summary judgment, finding that because plaintiff submitted the claims after April 5, 2002, the new regulations applied. In reversing, the Appellate Term simply made clear that the date the policy was issued determines if the new regulations are applicable, not the date when plaintiff submits its claims. The defendant in that case did not come forward with proof of when the policy was issued, and there is no indication that this crucial date could have otherwise been determined; the Appellate Term granted plaintiff’s motion for summary judgment.

Here the defendant need not produce proof that the policy was issued after April 5, 2002, because the parties stipulated to that fact. Had there been no stipulation, however, the fact remains that the earliest date that the policy covering this July 31, 2006 accident could have been issued was July 31, 2005; this was more than three years after the effective date of the new regulations. Even if the insurance policy lacked the mandatory Endorsement, then the applicable provisions of the Insurance Law or the applicable regulation, which “has the force of law” (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 201 [2007]), are deemed to be part of the policy as though written into it. (See also Insurance Law § 3103 [a] [even if the policy or provision is “in violation of the requirements or prohibitions of this chapter it shall be enforceable as if it conformed with such requirements or prohibitions”]; Trizzano v Allstate Ins. Co., 7 AD3d 783 [2d Dept 2004] [auto policy]; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507 [2008] [fire policy].)

Where, as here, it is clear that the policy is subject to the new regulations, the mandatory Endorsement is read into the policy and the defendant is not required to produce it. Accordingly, after trial, the court awards judgment in favor of defendant Government Employees Insurance Company and against plaintiff Dana Woolfson, LMT. The complaint is dismissed with prejudice.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 18, 2006, deemed from a judgment entered August 22, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,257.05.

Judgment reversed without costs, so much of the order entered July 18, 2006 as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint asserts seven causes of action based upon NF-3 claim forms and an eighth cause of action seeking attorney’s fees. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff’s billing manager, and various documents annexed thereto. The affirmation executed by plaintiff’s billing manager stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff’s billing manager failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Defendant also sought summary judgment upon its cross motion on the ground that the action was premature because plaintiff failed to respond to timely verification requests. The court [*2]granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Defendant’s cross motion for summary judgment is predicated upon defendant’s timely requests for verification. Inasmuch as the affidavit executed by defendant’s no-fault litigation examiner failed to establish that defendant timely mailed its verification requests based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant is not entitled to summary judgment upon its cross motion with respect to the seven causes of action on NF-3 claim forms.

Since the issue is not raised, we do not pass on whether the eighth cause of action, seeking attorney’s fees, constitutes a separate cause of action for pleading purposes under the No-Fault Law or whether it is merely an element of the damages recoverable on the substantive causes of action (see generally Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]). We note, however, that even were we to find that it is not a separate cause of action for pleading purposes, we would, upon dismissing said “cause of action,” deem the complaint amended to demand attorney’s fees as part of the damages sought in each of the remaining causes of action (see Bunker v Bunker, 73 AD2d 530 [1979]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
Golia, J., concurs in part and dissents in part and votes to reverse the judgment, vacate the entire order entered July 18, 2006 except the provisions thereof which denied defendant’s cross motion for summary judgment with respect to its first and eighth causes of action, and, upon such vacatur, deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment to the extent of dismissing plaintiff’s second through seventh causes of action, in the following memorandum:

I concur with the majority insofar as it denied summary judgment in favor of plaintiff for the reasons stated by the majority. I further concur with the majority insofar as it denied defendant’s cross motion for summary judgment with respect to the first and eighth causes of action, which portion of the cross motion I would deny based on defendant’s failure to provide adequate proof that the follow-up verification sought the same materials as the first verification request.

I dissent, however, as to the majority’s affirmance of the lower court’s denial of [*3]defendant’s cross motion for summary judgment with respect to the second through seventh causes of action. My disagreement with my colleagues turns, in large part, on the issue of what constitutes sufficient proof of mailing. I find that the affidavit of Ms. Annie Jordan, defendant’s no-fault litigation examiner, is more than sufficient to establish that the verification requests were mailed and that the follow-up requests were timely and properly sent in accordance with the protocols set forth in the regulations. Unlike the facts in Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374, 375 [2002]), in which the court found that the “employee had no personal knowledge that the . . . form had been mailed . . .,” in this case, Ms. Jordan specifically states that “I have personal knowledge that in compliance with that policy and business duty . . . the verification letters were dated and generated, copies of the verification letters were mailed to Horton Medical P.C., 40 Horton Ave., Lynbrook, N.Y. . . . .”

She further stated in her affidavit that:

“It is [defendant’s] office practice and [defendant’s] claims examiners are under a business duty to mail all verification letters to the address applicant lists on the bills on the same day the verification letters are dated and generated. I have personal knowledge that in compliance with that policy and business duty, on 08/24/05, 09/08/05, 09/14/05, 09/28/05, 09/29/05, 10/11/05. 10/14/05, 11/03/05, 11/16/05, 12/19/05, the dates the verification letters were mailed to [plaintiff at] the address listed on the bills. Copies were also mailed to Plaintiff’s assignor. I have personal knowledge that the postal service did not return the verification letters as being undeliverable.”

As stated by the Court of Appeals in Nassau Ins. Co. v Murray (46 NY2d 828, 830 [1978]), the real question is whether or not the party has established the following:

“office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed.”

To the best of my understanding, the only reason that I can intuit as to why the majority finds this affidavit of mailing procedures to be insufficient is that it does not deconstruct the process itself. That is, it does not state that the office procedure entails affixing the proper postage, placing the envelopes in the care and custody of the U.S. Postal Service, etc.

I do not believe that such a strict catechism is necessary in order to trigger the legal presumption of mailing. Indeed, the plain meaning of the word “mailing” in and of itself denotes a process and not a concept. It is applicable only to the U.S. Postal Service. Black’s Law Dictionary (8th ed 2004) defines “mail” as a noun meaning:

“one or more items that have been properly addressed, stamped with postage, and deposited for delivery in the postal system.”

“Mail” is also defined as a verb to mean:

“to ensure that a letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup.”

It should not be the province of this Court to require that a party to an action recite all the component parts encompassed by the act of this unique word “mailing” in much the same way that “plebes” at a military academy are required to recite all the component elements of the act of “walking” before taking a walk. For the military to require such strict adherence can make sense. For the courts to do so is unreasonable. [*4]
Decision Date: July 30, 2008