[*1]

Supreme Court, Appellate Term, Second Department, July 10, 2008

APPEARANCES OF COUNSEL

Wollerstein & Futoran, New York City, and Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Law Office of Ilona Finkelshteyn, P.C., Brooklyn (Ilona Finkelshteyn and Emilia I. Rutigliano of counsel), for respondent.

{**21 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed plaintiff’s motion and cross-moved for summary judgment, arguing, inter alia, that the action was premature due to plaintiff’s failure to provide requested verification. The court held that defendant failed to establish that its time to pay or deny plaintiff’s claims was tolled since defendant’s follow-up verification request was sent to plaintiff prior to the expiration of the 30-day period within which plaintiff was supposed to provide the requested verification (Insurance Department Regulations [11 NYCRR] former § 65.15 [e] [2], now Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). As a result, the court granted plaintiff’s motion for summary judgment{**21 Misc 3d at 3} and denied defendant’s cross motion for summary judgment. This appeal ensued.

While defendant argues that plaintiff did not establish a prima facie case because plaintiff did not prove its cost of the supplies furnished to plaintiff’s assignor, 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 [*2]of no-fault benefits was overdue (see Insurance Law § 5106 [a]; see also Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). A medical equipment provider is not required to prove its costs to establish its prima facie case for the recovery of no-fault benefits. Whether a provider’s benefits claim exceeded the amount permitted by the fee schedule is a mere defense to an action on a claim, which defense is precluded by an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto.

In opposition to plaintiff’s motion for summary judgment and in support of defendant’s cross motion, the supervisor of defendant’s no-fault department stated that because plaintiff failed to provide the requested verification, defendant did not pay or deny the subject claims submitted by plaintiff. We agree with the court below that defendant’s failure to adhere to the regulations governing initial and follow-up verification requests rendered ineffective its attempt to toll the 30-day claim determination period. Defendant admits that it mailed a follow-up verification demand 27 days after it mailed its initial demand, and we find the second request premature and without effect (see Insurance Department Regulations [11 NYCRR] former § 65.15 [e] [2], now Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). Contrary to defendant’s contention, the case of New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]) does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification. As a result, defendant is precluded from raising most defenses, including its proffered defense of excessive fees (see Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 14{**21 Misc 3d at 4} Misc 3d 135[A], 2007 NY Slip Op 50163[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

While defendant argues that plaintiff was only entitled to recover the interest that accrued since the commencement of this action, such argument lacks merit (Insurance Department Regulations [11 NYCRR] § 65-3.9 [a], [c]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290, 1291 [2007]; see also Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [App Term, 2d & 11th Jud Dists 2007]).

Golia, J. (dissenting and voting to reverse the order, deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment dismissing the complaint). In the first instance, I do not choose to abrogate my responsibility to “pass upon” the most fundamental and preeminent issue to be determined in any litigation, that being whether or not the plaintiff has established a prima facie case. I find that plaintiff did not do so.

I point to the fact that the claim forms submitted are internally inconsistent. That is, plaintiff’s first claim form states that the subject injury occurred on November 15, 2000 and the services were provided five days earlier on November 10, 2000. The second claim form maintains the “apparent” misstatement that the injury occurred on November 15, 2000, with the service being provided on January 15, 2001. In addition, with regard to the mailing, plaintiff’s affidavit states that the dates of service were November 10, 2000 and (a full year later) [*3]November 15, 2001.

I note that I do not ordinarily believe that a judgment should turn on what appear to be typographical errors. However, the above circumstances to me present sufficient facts, which in addition to others, warrant denial of plaintiff’s motion for summary judgment.

Notwithstanding, I find that the follow-up verification and second request for verification did result in a tolling of the 30-day period. The opposite finding by the majority was not because the second request was sent too late (ordinarily the reason for denying the defendant’s ability to defend) but because it was sent three days too early. The majority simply states that “[c]ontrary to defendant’s contention, the case of New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]) does not{**21 Misc 3d at 5} permit defendant to disregard the regulation governing the timing of a follow-up request for verification.” The majority makes this finding even though the cited Appellate Division case deals with a verification request that was dated October 5, 1999 and a follow-up request that was sent and dated November 1, 1999. Certainly, the first day of November is less than 30 days from the fifth day of October.

Plaintiff argues, in substance, that because the Appellate Division did not specifically state that the letter that was dated 27 days later was actually mailed on the date that was noted, the case cannot be read to say that the follow-up was actually mailed 27 days later.

A review of the file that was submitted to the Appellate Division in New York & Presbyt. Hosp. v American Tr. Ins. Co. indicates that there is contained in that file, among other references, the reply affirmation of the plaintiff. It states, “The defendant’s letters of October 5, 1999 and November 1, 1999 were not prescribed verification forms.” There is no indication from this or any other document in that file that the letter dated November 1, 1999 was mailed on any date other than November 1, 1999. Nor, according to my review, was this issue raised.

I do not support the theory that the Appellate Division found that the November 1, 1999 letter was, in fact, dated November 1, 1999 but not mailed before November 5, 1999, nor was it mailed after November 14, 1999.

I, however, do believe that the Appellate Division understood exactly what was presented to it when it found that the follow-up request for verification that was sent within 30 days of the first request, specifically 27 days, was, in fact, timely and in all respects proper.

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

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 (Bernard J. Graham, J.), entered August 10, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment is denied with respect to plaintiff’s $766.57 claim; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits on claims for $350 and $766.57, plaintiff moved for summary judgment. Defendant cross-moved, inter alia, for summary judgment dismissing the complaint on the ground that plaintiff failed to provide the verification which defendant had requested. The court below denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

The affidavits submitted in support of defendant’s cross motion seeking summary judgment were sufficient to establish that the letters requesting verification and scheduling independent medical examinations (IMEs) of plaintiff’s assignor were timely sent pursuant to a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Inasmuch as plaintiff did not demonstrate that it provided defendant with the verification requested by defendant in its verification and follow-up verification requests with respect to plaintiff’s claim form seeking the sum of $350, the court properly granted defendant summary judgment dismissing the $350 claim as premature, since it was not overdue (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

However, defendant was not entitled to summary judgment dismissing plaintiff’s $766.57 [*2]claim. Although defendant’s cross motion for summary judgment dismissing said claim was based upon the failure of plaintiff’s assignor to appear for two IMEs, defendant failed to proffer proof from someone with personal knowledge of the assignor’s failure to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing said claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff’s remaining contentions lack merit.

Rios and Steinhardt, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs in the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to 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.
Decision Date: July 8, 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 (Genine D. Edwards, J.), entered July 26, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff was not licensed and even if it was licensed, it failed to plead and identify its license in its complaint as required by CPLR 3015 (e). The court below granted defendant’s cross motion for summary judgment, holding that plaintiff failed to plead in its complaint its licensure status as required by CPLR 3015 (e) and the instant appeal by plaintiff ensued.

Defendant’s contention that plaintiff was not licensed was purely conclusory as it was not based on any factual evidence in the record.

Further, CPLR 3015 (e) provides, in pertinent part:
“Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York . . . the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license . . . The failure of the plaintiff to [*2]comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter ” (emphasis added).
CPLR 3015 (e) is only applicable to actions against a consumer (see Matter of Migdal Plumbing & Heating Corp. [Dakar Devs.], 232 AD2d 62 [1997]). In the case at bar, defendant is not a consumer but is the insurance company from which plaintiff is seeking to recover assigned first-party no-fault benefits. Accordingly, the court below improperly granted defendant’s motion for summary judgment dismissing the complaint.
Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 8, 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 (Kathy J. King, J.), entered May 23, 2007. The order denied defendant’s motion to consolidate this action with 11 other actions and, upon consolidation, for summary judgment dismissing the action, or, in the alternative, discovery in the consolidated action.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate this action with 11 other pending actions commenced by the same provider against defendant. Upon consolidation, defendant further sought summary judgment dismissing each of the complaints on the ground that the provider is ineligible for reimbursement of no-fault benefits because at the time that the services for which plaintiff seeks reimbursement were rendered, plaintiff was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). In the alternative, defendant sought discovery related to the foregoing defense. The court denied defendant’s motion in its entirety, and this appeal by defendant ensued.

The branch of defendant’s motion seeking consolidation was properly denied. Defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]).

Similarly, to the extent that defendant’s motion seeks summary judgment dismissing the complaint in the instant action, the court properly denied the relief requested. To establish its entitlement to summary judgment, defendant was required to present sufficient evidence in admissible form to show, as a matter of law, that there was an absence of a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendant’s [*2]proffered defense, that plaintiff is ineligible for reimbursement of no-fault benefits under Insurance Department Regulations [11 NYCRR] § 65-3.16 (a) (12) because its owner is not properly licensed as a medical doctor in New York (see Business Corporation Law §§ 1507, 1508), has not been established as a matter of law (see CPLR 4540; see also Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]; see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra). To the extent defendant sought, in the alternative, an order compelling plaintiff to provide discovery, the lower court properly denied that branch of defendant’s motion. Defendant failed to submit an affidavit specifying any facts entitling it to pretrial proceedings almost a year after the notice of trial was filed (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]).

Rios and Steinhardt, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to 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
Decision Date: July 8, 2008.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered March 12, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order 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 for summary judgment on the ground that the assignor’s injuries did not arise out of an insured incident. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.

Contrary to defendant’s contention, the affidavit submitted by plaintiff in support of its motion for summary judgment established that plaintiff’s biller possessed sufficient personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (cf. Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the court below properly determined that plaintiff made a prima facie showing of its entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Although defendant admittedly failed to pay or deny plaintiff’s claims within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), and failed to establish that said period was extended by a timely request for verification (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), it was not precluded from raising its defense of lack of coverage based upon its conclusion that the underlying loss was the result of an intentional act (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). However, the affidavit of defendant’s investigator, submitted in opposition to plaintiff’s motion and in support of defendant’s cross motion for summary judgment, was insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, the court below properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.

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 January 24, 2007. The order denied defendants’ motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

Order modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The court denied defendants’ motion for summary judgment, finding that defendants failed to establish the mailing of their denial of claim forms to plaintiff, and granted plaintiff’s cross motion for summary judgment. The instant appeal by defendants ensued.

On appeal, defendants assert that the affidavit from plaintiff’s counsel’s employee, submitted in support of plaintiff’s cross motion for summary judgment, 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. We agree. The affidavit submitted by plaintiff’s counsel’s employee was insufficient to establish that said person possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff [*2]failed to make a prima facie showing of its entitlement to summary judgment (see 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]; 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 cross motion for summary judgment is denied.

With respect to defendants’ motion for summary judgment, defendants contend that they made out a prima facie case entitling them to summary judgment since they established that they timely denied plaintiff’s claims on the ground that the services provided were not medically necessary and plaintiff failed to rebut said showing. However, the affidavit of defendants’ no-fault examiner was insufficient either to establish that she personally mailed the verification requests and denial of claim forms at issue or to give rise to a presumption that defendants timely mailed them in accordance with defendants’ standard office practice and procedure (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]). Since defendants failed to establish that the claims were denied within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), the court below properly denied defendants’ motion for summary judgment because defendants did not establish that the defense upon which they sought summary judgment was not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to 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.
Decision Date: July 8, 2008

[*1]

Supreme Court, Appellate Term, Second Department, July 8, 2008

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for appellant. Ilona Finkelshteyn, Brooklyn, for respondent.

{**20 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Judgment 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, claiming, based upon two peer review reports, that the medical services provided were not medically necessary. In reply, plaintiff asserted that the peer review reports did not constitute evidence in admissible form since they were not properly affirmed, as the doctors’ signatures were affixed by stamp. Insofar as is relevant to the instant appeal, the court below granted plaintiff partial summary judgment on its first cause of action, finding that the peer review report with respect to the claim in question was not in admissible form because the signature was not affixed in accordance with CPLR 2106. This appeal by defendant ensued.

Since defendant does not challenge plaintiff’s establishment of its prima facie case, we do not pass upon the propriety of the determination of the court below with respect thereto.

In opposition to plaintiff’s motion for summary judgment, defendant was required, in order to raise a triable issue of fact as to medical necessity, to proffer proof in admissible form (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In its opposing papers, defendant submitted an affirmed peer review report which stated that there was a lack of medical necessity for the medical services provided by plaintiff. In its reply papers, plaintiff asserted that the peer review report upon which [*2]defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a facsimile of the peer reviewer’s signature. Although defendant argues that plaintiff’s contention was improperly raised for the first time in plaintiff’s reply papers, the reply affirmation from plaintiff’s counsel was responsive to defendant’s papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff’s motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor’s signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer{**20 Misc 3d at 72} review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). Accordingly, the judgment is affirmed.

We note that the affirmation by Dr. Sharahy, annexed to the appellant’s brief, may not be considered by the court as it is dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

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

District Court of Nassau County, Third District

CIV 4842/04

srael, Israel & Purdy, LLP attorney for Plaintiff

Law Offices of Robert P. Tusa, attorney for Defendant

Robert A. Bruno, J.

Plaintiff commenced this action to recover the sum of nine hundred fifty-eight dollars and thirty-two cents ($958.32) for psychiatric evaluation and testing performed on assignee on September 12, 2003, relating to injuries assignee allegedly sustained on August 30, 2003.

Prior to the commencement of the trial, the parties stipulated (“Stipulation”) to Plaintiff’s prima facie case and Defendant’s timely issuance of a proper denial of claim based upon a defense of lack of medical necessity. The Stipulation further provided that the only issue for this Court to decide was whether the services Plaintiff provided were medically necessary. The Stipulation was entered into evidence as Court Exhibit 1.

At trial, Defendant bears the burden of proof for its defense of lack of medical necessity (see A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493, 2006 NY Slip Op 50260(U) [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 299, 2005 NY Slip Op 50662(U) [Civ. Ct. Kings Co. 2005]).

A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not medically necessary must show that the services provided were inconsistent with generally accepted medical/professional standards. The opinion of the insurer’s expert, standing alone, is insufficient to carry the insurer’s burden of proof that the services were not medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem. Co., 3 Misc 3d 608, 777 NYS2d 241 [Civ. [*2]Court Kings County 2004]; Ultimate Medical Supplies v. Lancer Insurance Co., 7 Misc 3d 1002(A), 801 NYS2d 243, 2004 NY Slip Op 51860(U) [Civil County Kings County 2004]; Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209, 2006 NY Slip Op 50892(U), 2006 WL 1341418). At trial, Defendant bears the burden of proof for its claim of lack of medical necessity (see Expo Medical Supplies, Inc. v. Clarendon Insurance Company, supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 18 Misc 3d 1139A, 2008 NY Misc. LEXIS 749, 2008 WL 518022 (NY City Civ. Ct.), 2008 NY Slip Op. 50368(U)).

In order for Defendant to prevail, Defendant must establish a factual basis and medical rationale for its claim of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 NYS2d 857 [Civ. Ct. Kings Co. 2005]). Defendants’ medical expert, Dr. Samuel Rock, testified that he reviewed the medical records and reports of the claimant and that he had sufficient information to render an opinion as to whether the services rendered were medically necessary. Dr. Rock testified on direct examination that he reviewed the medical records he received from Dr. Braun as well as other medical reports and results of the Beck inventory tests.

Dr. Rock also testified that the general accepted medical/professional standard for conducting the initial interview is six (6) weeks post-accident and to conduct the initial interview any earlier could result in a false positive, as most individuals experience some type of psychological stress after an accident, but the initial stress dissipates several weeks thereafter.

In the instant case, Dr. Braun conducted the initial interview on September 12, 2003, thirteen (13) days post accident, which according to Dr. Rock was improper and against generally accepted medical/professional standards.

In addition to the foregoing, Dr. Rock testified that had the initial interview been properly conducted, a determination could have been made that claimant was not seriously psychologically disturbed and therefore no additional testimony would be necessary.

According to Dr. Rock, the medical reports he reviewed does not indicate whether the claimant was ever treated, or whether Dr. Braun ever examined claimant or just relied upon the paperwork generated from claimant’s self-administered Beck inventory tests.

In addition to the foregoing, Dr. Rock testified that the results of Dr. Braun’s tests indicated claimant had the mildest form of anxiety, and in Dr. Rock’s opinion, that diagnosis could have been determined during a proper forty-five (45) minute interview rendering subsequent testings unnecessary.

On cross-examination, Dr. Rock admitted, he did not review the accident report, hospital records or Dr. Gelphan’s report in concluding the tests performed on claimant [*3]were not medically necessary. However, on re-direct examination, Dr. Rock testified that even if he had reviewed those reports they would not have effected his opinion regarding the lack of medical necessity.

Once Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to Plaintiff to present its own evidence of medical necessity (see Prince, Richardson on Evidence Section 3-104, Section 3-202 [Farrell 11th ed]; West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A), 824 NYS2d 759, 2006 NY Slip Op 51871(U) [2006]). In the case at bar, Plaintiff did not call any witnesses to rebut Dr. Rock’s testimony but relied upon its cross-examination of Dr. Rock to defend its claim of medically necessity. The Court finds that Plaintiff has failed to refute Defendant’s expert witness testimony that the services provided deviated from the generally accepted medical professional standards and has failed to produce any rebuttal evidence to prove medical necessity for the services rendered.

Accordingly, judgment is hereby rendered for Defendant.

This constitutes the Decision and Order of the Court.

SO ORDERED.

DISTRICT COURT JUDGE

Dated: July 1, 2008

cc:Israel, Israel & Purdy, LLP

11 Grace Avenue, Suite 111

Great Neck, New York 11021

Law Offices of Robert P. Tusa

1225 Franklin Avenue, Suite 500

Garden City, New York 11530

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 (Margaret A. Chan, J.), entered May 3, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by the employee stated in a conclusory manner that the documents annexed to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of lack of medical necessity. In support of its cross motion and in opposition to plaintiff’s motion for summary judgment, defendant submitted an affirmed peer review report and argued, inter alia, that the affidavit by plaintiff’s employee failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied plaintiff’s motion and granted defendant’s cross motion, finding that plaintiff failed to establish its prima facie entitlement to summary judgment and defendant established its defense of lack of medical necessity. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the denial of claim form submitted by defendant was not fatally defective. Although the defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form “promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. [*2]Co., 32 AD3d 458, 460 [2006] [internal quotations and citations omitted]), and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.).

Turning to the merits of defendant’s cross motion, the sworn papers submitted in support of same, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, the court below properly granted defendant’s cross motion for summary judgment (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: July 1, 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 (Margaret A. Chan, J.), entered May 3, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by the employee stated in a conclusory manner that the
documents annexed to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of lack of medical necessity. In support of its cross motion and in opposition to plaintiff’s motion for summary judgment, defendant argued, inter alia, that the affidavit by plaintiff’s employee failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied plaintiff’s motion and granted defendant’s cross motion, finding that plaintiff failed to establish its prima facie entitlement to summary judgment and defendant established its defense of lack of medical necessity. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the denial of claim form submitted by defendant, which included a defense of lack of medical necessity as per a peer review report, was not fatally defective. Although defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form “promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s [*2]predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006] [internal quotations and citations omitted]) and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.). Consequently, defendant’s defense of lack of medically necessity was not precluded.

Defendant’s cross motion papers, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, the court below properly granted defendant’s cross motion for summary judgment (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 1, 2008