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 September 21, 2006, deemed from a judgment entered December 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,854.30.

Judgment reversed without costs, so much of the order entered September 21, 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 sole issues raised by defendant are whether it proffered sufficient evidence in support of its cross motion for summary judgment to entitle it to dismissal of plaintiff’s complaint due to the fact that the injuries sustained by plaintiff’s assignor did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) or, in the alternative, whether it proffered sufficient evidence in opposition to plaintiff’s motion for summary judgment to defeat same. Upon a review of the record, we find that while defendant demonstrated that it possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199) so as to defeat plaintiff’s motion, it failed to submit sufficient evidence in admissible form to establish, as a matter of law, “that the alleged injur[ies] do[] not arise out of an insured incident” (id.) so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 7, 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 (Anna Culley, J.), entered November 16, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting that the injuries allegedly sustained by plaintiff’s assignor were not causally related to the accident. The court denied plaintiff’s motion for summary judgment holding that
while plaintiff proved its prima facie entitlement to summary judgment, defendant raised a triable issue of fact. This appeal by plaintiff ensued.

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

In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, accompanied by the sworn affidavit of the consultant who prepared said report, was sufficient to demonstrate that the defense was based on a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. [*2]Hosp., 90 NY2d at 199; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists 2005]; cf. Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97 [App Term, 1st Dept 2007]).

Plaintiff’s argument, that the consultant’s sworn affidavit was inadmissible, because it did not comply with CPLR 2309 (c), is raised for the first time on appeal, and therefore waived (see Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), the lower court properly denied plaintiff’s motion for summary judgment.

In light of the foregoing, we do not reach the parties’ remaining contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 5, 2008

Civil Court of the City of New York, Richmond County

25573/06

Counsel for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-2320

Counsel for Defendant:

Teresa M. Spina, Esq.

88 Froelich Farm Blvd.

Suite 202

Woodbury, NY 11797

516-682-7274

Katherine A. Levine, J.

Plaintiff Cambridge Medical P.C. (“plaintiff”), a medical services provider, seeks to recover $1,617.69 for the EMG/NCV it conducted upon the assignor Webster Simmons (“Simmons” or “claimant”) following injuries that the claimant sustained in an automobile accident. Defendant Government Employees Insurance Company (“defendant” or “Geico”) claims that the tests were medically unnecessary. At the trial held on January 23, 2008, the parties stipulated to plaintiff’s prima facie case and defendant’s timely denial of the claim. [*2]Therefore, the only issue presented to the court was whether the EMG/NCV conducted on October 5, 2006 was medically necessary.

The medical records put into evidence by plaintiff reveal that claimant had appeared before Dr. Anand, a doctor of physical medicine and rehabilitation associated with plaintiff, on both September 19 and October 5, 2006 wherein he presented both times with complaints of neck pain which radiated to the left arm, and numbness and tingling to the left arm. On both occasions Dr. Anand conducted a physiatrics examination of the cervical spine which revealed muscle spasm and associated tenderness to palpation, and a Spurling’s test which was positive on the left. He found the following impressions: cervical sprain/strain; neck and back pain, spasm and r/o cervical radiculopathy – a nerve root problem at the neck with pain going down the arm (Plaintiff s 2). On September 19th Dr. Anand did not recommend that the patient undergo an electro diagnostic evaluation in order to rule out radiculopathy and/or other peripheral nerve damage. However, if the patient’s condition failed to improve with conservative management, reevaluation would be considered. Since September 5, 2006 the claimant had been undergoing physical therapy five times a week consisting of massage, joint mobilization, therapeutic exercise, ultrasound, hot packs and electrical stimulation.

On October 5, 2006, however, Anand recommended that the claimant undergo an electro diagnostic evaluation, including an electromyography (“EMG”) and nerve conduction velocity (“NCV”) of the region and bilateral upper extremities in order to rule out radiculopathy and/or other peripheral nerve damage. The impression of the electro diagnostic study, conducted on October 5, 2006, revealed evidence of C5-C6 radiculopathy on the left and active denervation in the left C5-C6 innervated musculature and moderate carpal tunnel syndrome affecting sensory and motor components. Dr. Anand recommended continued chiropractic care for the involved spinal areas.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U; 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S., 2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). The quantum of proof necessary to meet defendant’s burden, at the bare minimum, is to “establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services.” Id. See also, A.B. Medical Services, supra .

Defendant presented the testimony of Dr. Joseph C. Cole who is board certified in physical medicine and rehabilitation. Dr. Cole conducted a peer review by reviewing a number [*3]of medical records or reports as listed in his peer review letter (defendant’s 2). Dr. Cole first described the EMG test which consists of putting a subcutaneous electrode or needle into the skin and recording abnormal electrical activity of the muscles and nerves. The NCV consists of stimulating a part of the body to measure the distance and velocity.

Dr. Cole stated in his peer review letter that it was the “standard of care” to order electro diagnostic testing only when the results of such test would benefit the patient more so than a detailed history and physical exam would. He also testified that the American Association of Electro Diagnostic Medicine (“AAEM”) guidelines reflect that EMG/NCV testing should only be used as an extension of a detailed history and physical examination, and only when the “results of the test would be expected to affect treatment” (Tr, 5).

Dr. Cole opined that the EMG/NCV test was not medically necessary because based on his review of the records he could not discern, “regardless of the results of the test”, how the test would have benefitted the patient any more so than a detailed patient history and physical examination would have (Tr. 4).He found that the history and physical examination findings did not substantiate the performance of such tests and would not be necessary prior to the continuation of conservative physical therapy or chiropractic care. He also opined that a physical exam of the muscles to see if there were spasms and a neurological exam would have benefitted the claimant as much as the EMG/NCV.

Dr. Cole also disagreed with the use of EMG/NCV testing to rule out radiculopathy since its limitations in evaluating this condition were “well outlined in the literature”. He stated that the AAEM minimonograph No.32 ( not submitted into evidence) reflects that EMG/NCV testing is not “the test of choice” as a screening tool for radiculopathy since it can’t be used to exclude radiculopathy even if there is a finding of normal. Furthermore, “cervical radiculopathy is diagnosed everyday in medicine with an EMG”. (Tr. 7)

Dr. Cole also acknowledged that Dr. Anand did not initially request an electro diagnostic test as he wanted to see if the patient would improve with conservative care, i.e. physical therapy and chiropractic care. He also acknowledged that on October 5, 2006 the claimant still was complaining of pain to the arm, weakness at the biceps and neck pain with radiation ideation and that the Spurling test was positive. (Tr.10). Additionally, there was a decreased range of motion of the cervical spine between the two reports so that the patient had not improved at all.

Dr. Cole admitted that the function of an electro diagnostic exam was to localize nerve tensions as accurately as possible and that the EMG/NCV was the “gold standard” in that (Tr. 11). He also agreed that establishing a specific diagnosis is important in the effective management of an individual who presents with a complaint of lower back pain and that an individualized electro diagnostic study was an extension of a detailed history and physical exam and could be useful and important in the proper evaluation of an individual with back pain. He stated that an EMG/NCV could help localize nerve root lesions as could a physical examination. [*4]Dr. Cole agreed with the statement in a 1999 AAEM article – chapter 9 “Practice Parameters for Needle Electromyographic Evaluation” (plaintiff’s 3) which noted that “a needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” This article also stated that “(b)ased on a critical review of the literature, electro diagnostic evaluation is found to be moderately sensitive and highly specific in establishing a diagnosis of cervical radiculopathy.”

The court then asked what it believed to be the crux of the issue – why would an expert conclude that the electro diagnostic study would be of no benefit to the plaintiff when there had been no subsiding of the pain over time and why would the test not assist the doctors in diagnosing why the pain still existed (Tr. 16). Dr. Cole responded that as of September 19th the patient had been diagnosed with radiculopathy and that “this diagnosis is made everyday without EMG” and that in this case the EMG would not add to or enhance the care.” (Tr. 16). The doctor then confirmed that regardless of the results of the test, there would be no change in treatment (Tr. 17).

This court finds that the defendant’s proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. Fatally missing from the doctor’s testimony is any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom. In the leading case of Services v. Travelers Indemnity, Citywide Social Work & Psychological, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004), Justice Battaglia succinctly stated:

“A no-fault insurer defending a denial of first-party benefits on the ground that the billed-for-services were not medically necessary’ must at least show that the services were inconsistent with generally accepted medical/professional practice. The opinion of the insurers’s expert, standing alone, is insufficient to carry the burden of proving that the services were not medically necessary”.

See , Acupuncture Prime Care v. State Farm Mutual Auto, supra .A generally accepted medical/professional practice has been defined as “that range of practice that the professional will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” 3 Misc 3d at 616.; A.B. Medical Services , P.L.L.C., supra .

In order to find that a treatment or service is not medically necessary, the defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” Fifth Avenue Pain Control Center v. Allstate Insurance Co.,196 Misc 2d 801, 807-08 (Civil Ct. Queens Co. 2003). The insurer’s expert’s reliance solely on his peer review report will be insufficient to disprove medical necessity. Id, See, A.R. Medical Art, P.C. v. State Farm Mutual Auto, 11 Misc 3d 1075A, 815 NYS2d 493 (Civil Ct., Kings Co. 2006).

In fact, an AAEM publication issued one year after the AAEM minimonograph #

32 cited by Dr. Cole is diametrically opposed to Cole ‘s position that the electro diagnostic test is [*5]not medically necessary since it states that a ” (a) needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” Dr. Cole’s testimony that the test could serve no purpose is belied by the fact that the treating physician did initially recommend conservative management of the claimant’s condition by continuing with a regimen of physical therapy. The treating physician also performed physical exams on two occasions before ordering the test. It was only after the claimant’s injuries did not improve over a span of over a month that Dr. Anand recommended that the insured undergo electro diagnosis for the purpose of ruling out radiculopathy or other nerve damage. In fact, Dr. Cole admitted that an individualized electro diagnostic study was an extension of a detailed history and physical exam and that the symptoms that the insured was exhibiting could be indicative of conditions other than radiculopathy, for example, carpel tunnel syndrome.

In a case somewhat analogous to the instant matter, Dr. Cole offered similar testimony that the EMG/NCV test was not medically necessary since the patient was improving and the physical examination and history could readily determine that the assignor was suffering from radiculopathy, thus making the need for the testing redundant. A.R. Medical Art, P.C. v. State Farm Mutual, supra . There, as in the instant matter, the plaintiff offered no testimony to rebut Dr. Cole but rather the parties stipulated into evidence the letter of medical necessity for the NCV/EMG from a doctor employed by the assignee’s medical office. The court noted that the positions between the treating physician and Dr. Cole were contradictory and that the assignee’s doctor had used the electro diagnostic testing in light of the patient’s complaints to make an exact diagnosis, locate a possible lesion, determine the extent of injury and exclude possible conditions. The court ruled that: “in the face of a course of treatment that has not been shown to have no medical purpose or performed towards no medical objective, this Court is not prepared to second guess a treating doctor who decides that a medical test is necessary for his/her medical diagnosis and treatment.”

This ruling applies with even greater force here where there was no evidence that the insured was improving from the conservative treatment recommended by the treating physician. Furthermore, only after two physical exams did the treating physician order the test to rule out radiculopathy.

In summary, Dr. Cole’s testimony failed to demonstrate the lack of medical necessity and judgment is rendered accordingly in favor of the plaintiff.

The foregoing constitutes the decision and order of the court.

Dated:March 5, 2008

Staten Island, NYHon. Katherine A. Levine

Judge, Civil Court

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 (Cynthia Kern, J.), dated July 14, 2006, deemed from a judgment entered August 16, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,133.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted and the instant appeal by defendant ensued.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report and an affidavit of the technical consultant who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries allegedly sustained by plaintiff’s assignor arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit proffered by defendant was executed in Maryland, and did not comply with CPLR 2309 (c), in that it was not accompanied by a certificate of conformity. Since this defect was duly objected to by plaintiff in the court below, defendant failed to introduce competent evidence in admissible form establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & [*2]11th Jud Dists 2006]). Accordingly, plaintiff’s motion
for summary judgment was properly granted, as defendant failed to raise a triable issue of fact.

Defendant’s constitutional challenge to CPLR 2309 (c) is unpreserved for appellate review since this argument was not made in the court below (see Matter of Larry B., 39 AD3d 399 [2007]; Matter of Coleman v Thomas, 295 AD2d 508 [2002]; Catholic Family Ctr. v Doe, 147 AD2d 977 [1989]; Emmer v Emmer, 69 AD2d 850 [1979]). Moreover, said challenge is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301
AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 29, 2008

Supreme Court, Nassau County

14882/2007

F. Dana Winslow, J.

Motion by plaintiff for summary judgment is denied. Cross-motion by defendant for summary judgment dismissing the complaint is granted as to Donecker’s claim but denied as to the claim for treatment of Cretara.

This is an action by a health care provider to recover no fault benefits payable under automobile insurance policies issued by defendant. Plaintiff Westchester Medical Center asserts claims for medical treatment provided to Ernest Cretara and Gary Donecker.^[FN1]

Ernest Cretara

On April 21, 2007, Ernest Cretara was involved in an automobile accident. Cretara was transported to Westchester Medical Center, where he suffered a cardiac arrest. Cretara expired in the emergency room about four hours after being admitted to the hospital. An autopsy was performed by the medical examiner. Cretara had an automobile insurance policy issued by Progressive, and the insurer received notification of the accident the following day.

On April 24, 2007, Progressive received a copy of the MV-104A, or police accident report, pertaining to the incident(See defendant’s ex. 2A). Under “accident description,” the officer stated that Cretara was “uncertain how accident occurred.” The MV-104A contains 30 boxes along the sides and lower portion of the form for the officer to enter various “response [*2]codes,” which correspond to information concerning the accident.^[FN2] Box 16 indicates that the other driver was conscious, but Cretara was “semiconscious” following the accident. Box 19 indicates that Cretara’s disregard of a traffic control device was an “apparent contributing factor” which led to the accident.

On the same date which it received the accident report, Progressive sent Westchester Medical a form letter, requesting certified copies of Cretara’s admission history, discharge summary, radiology reports, laboratory test results, pathology reports, consult reports, nurse’s notes, and emergency room records. The letter contained a type-written notation stating, “Specifically, blood alcohol/drugs including any serum toxicology test results.” On April 24, Progressive also sent a letter to Cretara’s estate, requesting “complete” emergency room records, all laboratory test results, and the police report “to determine eligibility for benefits.” On May 1, 2007, Progressive sent Westchester Medical another copy of the April 24 letter, requesting the same documents. On May 1, Progressive also sent another letter to the estate, requesting an authorization to obtain the autopsy report.

On May 10, 2007, Progressive received a UB-92 form from Westchester Medical, itemizing various services and showing an estimated amount due of $17,022. The UB-92 form states that it is supplied as a “courtesy,” for use in determining the treatment and diagnosis “via the ICD-9 codes.” The UB-92 form states that it is not a “no fault bill,” but the NF-5 form is the “authorized no fault bill…with the proper DRG rate.” On that date, Progressive also received an NF-5 hospital facility form, requesting payment in the reduced amount of $3,730.59 for various procedures performed for Cretara. The NF-5 form also contained an assignment of benefits to the health care provider and stated that the patient’s signature was “on file.”

On May 16, 2007, Progressive sent Westchester Medical a verification request form, stating that “all benefits remain delayed pending receipt of complete emergency room records, and/or all laboratory test results, (which we have requested) to determine eligibility for benefits.” On May 23, 2007, Progressive received from Westchester Medical documents purporting to be the “complete medical record” of Ernest Cretara. The EMS report indicates that the patient stated that he had “a lot to drink” and there was an odor of alcoholic beverage on his breath. Based upon a review of the EMS report and emergency room records, Progressive determined that Cretara may have been intoxicated at the time of the accident.

On May 29, 2007, despite having received the “complete record,” Progressive sent Westchester Medical a duplicate copy of its April 24 letter, requesting certified copies of the documents. The letter was stamped, “Second Notice.” On the same date, Progressive also sent Cretara’s estate a duplicate copy of its prior letter, requesting emergency room records, lab tests, and the police report. The letter was similarly stamped “Second Notice.” On June 4, 2007, Progressive sent Westchester Medical a duplicate copy of the May 1 letter, requesting certified copies of the records and marked “Second Notice.” On June 4, Progressive also sent Cretara’s estate a duplicate copy of the May 1 letter, requesting an authorization for the autopsy report.

On June 8, 2007, Progressive sent Westchester Medical a separate verification request, [*3]stating that “all benefits remain delayed” pending receipt of an authorization for the autopsy report. On the same date, Progressive sent Cretara’s estate a letter, stating that the no fault claim was being considered under a “reservation of rights” because the insurer’s investigation indicated that alcohol or drug use may have been a factor contributing to the accident.^[FN3] On July 9, 2007, counsel for the estate wrote to Progressive, promising to forward a copy of the autopsy report “upon receipt.” On July 10, 2007, Progressive sent Westchester Medical a duplicate copy of the June 8 verification request which had requested an authorization for the autopsy report. The verification report was stamped, “Second Notice.” Neither Westchester Medical nor the estate has ever submitted an authorization for the autopsy report. Progressive has never paid or formally denied the claim.^[FN4]

Gary Donecker

Gary Donecker was involved in an automobile accident on July 25, 2006.

Donecker does not appear to have received any medical treatment immediately after the accident. On December 29, 2006, five months after the car accident, Donecker fell down a flight of stairs. Donecker was transported to Westchester Medical after he was found unconscious by EMS. The patient was diagnosed as having suffered a sub-dural hemorrhage and remained in the hospital until he died on January 7, 2007. Donecker had an automobile insurance policy issued by Progressive.

On March 12, 2007, Progressive received a UB-92 form from Westchester Medical, showing an occurrence date of December 29, 2006 and an estimated amount due of $109,555.60. The UB-92 form refers to treatment rendered to Donecker on December 29 and 31, 2006. Nevertheless, Progressive concedes that on March 12, it received notification that Donecker had been treated at Westchester Medical through January 7, 2007.

On March 15, 2007, Progressive sent Westchester Medical a verification request, stating that “all benefits remain delayed pending receipt of complete emergency room records, including all laboratory test results, to determine eligibility for benefits.” Among the ICD9 diagnosis codes listed on the verification request is 303.90, which refers to “unspecified drinking behavior, other and unspecified alcohol dependence.” On April 17, 2007, Progressive sent Westchester Medical a duplicate copy of the verification request, marked “Second Notice.”

On April 27, 2007, Westchester Medical mailed an NF-5 form to Progressive in the reduced amount of $13,357.28. The certified mail receipt indicates that the NF-5 was received by Progressive on April 30, 2007. The NF-5 form referred to an accident date of July 25, 2006 and an admission date of December 29, 2006. The form stated that the charges were for “treatment and observation for injuries due to motor vehicle accident.” The form also contained an assignment of benefits stating that the patient’s signature was “on file.”

Progressive received Donecker’s complete medical record from Westchester Medical on June 28, 2007. The court notes that under “history of present illness,” the discharge summary [*4]states that the patient had a “long history of alcohol abuse” and was a “victim of a fall down stairs.”

After reviewing the medical records, Progressive undertook to have the claim reviewed by an “independent peer reviewer,” Dr. Maria De Jesus, a neurologist. Dr. DeJesus reasoned that if Donecker had sustained a head injury severe enough to cause to a sub-dural hemorrhage, “it would have been addressed” at the time of the automobile accident. On July 23, 2007, Dr. De Jesus submitted a report to Crossland Medical Review Services, which was undertaking review of the claim on behalf of Progressive. Dr. DeJesus concluded that the hospitalization and treatment received from December 29, 2006 to January 7, 2007 was “not in any way causally related to the [motor vehicle] accident.” On July 27, 2007, Progressive denied Westchester Medical’s claim on the ground that Donecker’s treatment was not related to an automobile accident.

This action was commenced on August 22, 2007. Plaintiff seeks to recover the no fault claims as well as statutory attorney’s fees and interest at the rate of 2% per month(See Insurance Law § 5106[a]). Plaintiff is moving for summary judgment on the ground that the claims are overdue because Progressive failed to pay or deny the claims within 30 days of having received the required verification. Defendant cross moves for summary judgment dismissing the complaint, arguing that it has not received sufficient verification as to Cretara’s claim and Donecker’s claim was properly denied.

The no-fault reform law provides for prompt, uncontested first-party insurance benefits in order to partially eliminate common law personal injury suits arising from automobile accidents(Insurance Law § 5103[a]; Presbyterian Hospital v. Maryland Cas. Co., 90 NY2d 274, 285 [1997]). Under the statutory scheme, an insurer may exclude from coverage a person who is injured as a result of operating a motor vehicle while in an intoxicated condition or while his ability to operate the vehicle is impaired by the use of a drug(Insurance Law § 5103[b]).

To further the legislative objective of prompt payment, Insurance Law § 5106(a) provides

Payments of first party benefits and additional first party benefits shall be

made as the loss is incurred. Such benefits are overdue if not paid within

thirty days after the claimant supplies proof of the fact and amount of the loss

sustained. If proof is not supplied as to the entire claim, the amount

which is supported by proof is overdue if not paid within thirty days

after such proof is supplied.

Insurance Department regulations prescribe the method by which the insured is to supply proof as to the fact and amount of loss.

In lieu of a prescribed application for motor vehicle no-fault benefits submitted

by an applicant and a verification of hospital treatment (NYS Form N-F 4), an

insurer shall accept a completed hospital facility form (NYS Form N-F 5) (or

an N-F 5 and Uniform Billing Form (UBF-1) which together supply all the

information requested by the N-F 5) submitted by a provider of health

services with respect to the claim of such provider.

(11 NYCRR § 65-3.5[g]). Thus, a completed NF-5 form is sufficient proof as to the fact and amount of loss in order to submit a no fault claim. [*5]

After a completed NF-5, or other prescribed verification form, is received, an insurer may require additional verification to establish proof of claim. However, “any additional verification…shall be requested within 15 business days of receipt of the prescribed verification forms”(Id § 65-3.5[b]). The insurer is entitled to receive all items necessary to verify the claim “directly from the parties from whom such verification is requested”(Id § 65-3.5[c]). A timely request for additional verification extends the 30-day period in which the insurer must pay or deny the claim(Hospital for Joint Diseases v. Central Mutual Fire Ins. Co., 44 AD3d 903 [2d Dep’t 2007]).

If an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, “the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident. Proof of claim shall not be complete until the information…has been furnished to the insurer by the applicant or the authorized representative”(11 NYCRR § 65-3.8[g]). If the insurance company neither denies a claim within 30 days after receiving it nor extends the time by requesting verification, the insurer will be precluded from asserting the statutory exclusion defense of intoxication(Presbyterian Hospital v. Maryland Cas. Co., supra, 90 NY2d 283).

Cretara

Progressive sent its initial verification form concerning Cretara’s claim to Westchester Medical on May 16. The verification request was timely because it was sent within 15 business days of receipt of the NF-5 form on May 10, 2007. However, the initial verification form did not request an authorization for the autopsy report. The June 8 verification form did request an authorization for the autopsy report, but this verification request was not sent within 15 business days of receipt of the NF-5 form. Nevertheless, when Progressive received the complete medical record on May 23, 2007, it had reason to believe that Cretara was operating a motor vehicle while intoxicated and his intoxication was a contributing cause of the accident. Thus, the insurer was entitled to “all available information” relating to Cretara’s condition, provided the information had been timely requested from either the insured or the health care provider.

§ 65-3.8(g) provides that proof of claim is not complete until the insurer is furnished with “all available information” relating to the insured’s condition at the time of the accident. However, “available information” includes only information within the control of the health care provider or the insured, or information obtainable by those parties through reasonable effort. Thus, proof of claim is not complete until the insurer has received the records of a health care provider who rendered treatment which preceded that of the plaintiff(Westchester Medical Center v. Progressive Casualty Ins. Co., 46 AD3d 675 [2d Dep’t 2007]). However, analysis of the data bearing upon intoxication by the insurer’s own experts should not extend the time in which the insurer is required to process the claim(LaHendro v. Travelers Ins. Co., 220 AD2d 971 [3d Dep’t 1995]; But see Mirza v. Allstate Ins. Co., 185 AD2d 303 [2d Dep’t 1992]).

The court concludes that the autopsy report was “available information” which Progressive had timely requested from the insured’s estate. Thus, Progressive was entitled to the autopsy report before paying or denying Cretara’s claim. When medical examiners perform autopsies, their function is to impart objective information to “the appropriate authorities for the benefit of the public at large”(Lauer v. New York, 95 NY2d 95, 103 [2000]). While the office of [*6]the medical examiner is an independent agency(People v. Washington, 86 NY2d 189, 192 [1995]), its autopsy reports and other records are open to inspection by the district attorney of the county and may be obtained by other parties(County Law § 677 [3](b) and [4]).^[FN5]

The autopsy is available to the personal representative, spouse, or next of kin of the deceased upon an application to the medical examiner(County Law § 677(3)[b]). Upon proper application of any person who may be affected by the autopsy in a civil or criminal action, or upon application of any person having a substantial interest therein, an order may be made by a justice of supreme court that the autopsy be made available for inspection(Id). A hospital may have a substantial interest in obtaining the autopsy reports of patients who died at the hospital in order to improve the quality of care(Central General Hospital v. Lukash, 140 AD2d 113 [2d Dep’t 1988]).

A hospital which has a no fault claim for treatment of a deceased may have a substantial interest in obtaining the patient’s autopsy report, if no other forensic evidence of blood alcohol content is available. Since the affidavit of Sharon Shafi, a hospital billing clerk, establishes that Westchester Medical did not test Cretara’s blood alcohol content, the hospital had standing to seek an order for inspection of the autopsy report pursuant to County Law § 677.

As the no fault insurer, Progressive also a substantial interest in the autopsy report and is entitled to apply for an order of inspection. Nevertheless, under Insurance regulation § 65-3.5[c], Progressive was entitled to receive the autopsy report directly from the parties from whom it was requested, either Cretara’s estate or Westchester Medical. The court notes that while Cretara’s personal representative could have obtained the autopsy report from the medical examiner, the personal representative may have been reluctant to do so for fear of jeopardizing the no fault claim. Nonetheless, Westchester Medical might have encouraged the personal representative to obtain the autopsy report by seeking reimbursement for medical services from the estate. In any event, the court concludes that because Progressive has not received all available information relating to Cretara’s condition, it is not yet required to pay or deny the claim.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law with respect to Cretara’s claim by establishing defendant’s receipt of the requisite no fault billing forms and that neither payment nor a timely denial were made(Westchester Medical Center v. Progressive Casualty Ins. Co., supra, 46 AD3d at 675). However, since defendant has shown a triable issue as to whether Westchester Medical’s proof of claim as to Cretara is complete, plaintiff’s motion for summary judgment as to Cretara’s claim is denied.

The court now considers whether defendant has made a prima facie showing that Cretara was operating a motor vehicle while intoxicated and his intoxication was a contributing cause of the accident. An ambulance report may be admissible as a business record, and statements in the report taken as evidence of intoxication(Mercedes v. Amusements of America, 160 AD2d 630 [1st Dep’t 1990]). However, the statements in the ambulance report must be relevant to diagnosis and treatment of the patient’s condition, and the report must indicate that it was the patient who made the statements(Id). The statements in the EMS report about having a lot to drink were relevant to diagnosis and treatment of the injury which Cretara sustained in the accident. Since the [*7]statements were clearly made by Cretara, the EMS report is admissible on the issue of intoxication.

A police accident report describing the circumstances of the accident is also admissible as a business record to the extent that it is based upon the personal observations of the police officer present at the scene who was under a business duty to report accurately(Westchester Medical Center v. Progressive Casualty Ins. Co., supra, 46 AD3d at 675). The statement in the police report concerning Cretara’s state of semiconsciousness after the accident appears to have been based upon the personal observations of the officer. However, the statement that Cretara disregarded a traffic control device was apparently made by the other driver who had no business duty to make it. The statement that Cretara was semiconscious is consistent with the EMS report that Cretara had been drinking. However, because Cretara may have been rendered semiconscious by the collision, the statement does not of itself establish that his intoxication was a substantial factor contributing to the accident. Accordingly, defendant’s motion for summary judgment dismissing plaintiff’s no fault claim as to Cretara is denied. The claim will be held in abeyance pending an application by plaintiff to inspect the autopsy report.

Donecker

Since the verification request for Donecker’s claim was issued even before the NF-5 form was received on April 30, the verification request was clearly timely. When the complete medical record was received on June 28, Progressive had reason to believe that the medical treatment for which reimbursement was sought was related to Donecker’s fall rather than an automobile accident. While Donecker may indeed have been intoxicated when he fell down the stairs, there was no reason to believe that the injury arose out of negligence in the use or operation of a motor vehicle(Insurance Law § 5104[a]). Thus, Progressive was not entitled to “all available information” concerning Donecker’s condition either at the time of the fall or the motor vehicle accident(11 NYCRR § 65-3.8[g]). Although Progressive nonetheless sent the claim for independent peer review, it denied the claim 29 days after the medical records were received. As the 30-day period does not begin to run until the hospital responds to the verification request, the court concludes that the denial of the claim was timely(New York & Presbyterian Hospital v. Progressive Casualty Ins. Co, 5 AD3d 568 [2d Dep’t 2004]). Since plaintiff has not established prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment as to Donecker’s claim is denied.

Where a person’s injuries are produced by an instrumentality other than an insured motor vehicle, no fault first-first party benefits are not available(Walton v. Lumbermen’s Mutual Casualty Ins. Co., 88 NY2d 211 [1996]). Based on the report of Dr. DeJesus, defendant has established prima facie that Donecker’s injuries were produced by his fall down the stairs. Thus, the burden shifts to plaintiff to establish a triable issue as to whether a motor vehicle was the instrumentality which caused Donecker’s injury(Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

In response, plaintiff has submitted a conclusory affidavit from a hospital billing clerk that, “The patient’s treatment was related to injuries sustained in a motor vehicle accident on July 25, 2006.” When taking a medical history from a patient who has sustained head injury, it may be proper medical practice to inquire as to prior instances of trauma. Thus, the doctor who was treating Donecker’s sub-dural hemorrhage may in fact have been aware that he had been in an [*8]automobile accident. Nevertheless, absent evidence as to the circumstances of the prior accident and expert testimony relating it to the patient’s condition, there is no basis for the court to infer that the motor vehicle accident may have been a substantial factor contributing to Donecker’s injury. Defendant’s motion for summary judgment dismissing the no fault claim as to Donecker’s treatment is granted.

This constituted the Order of the Court.

Dated: February 28,2008ENTER:

_________________________________

J.S.C.

Footnotes

Footnote 1:The complaint also contains a no fault claim asserted by Wyckoff Medical Center for treatment of Emin Huremovic and a claim by New York Medical Center of Queens for treatment of Syed Ali. Since the claims of Wyckoff and New York Medical have been paid, those claims have been withdrawn.

Footnote 2:Defendant has not supplied MV-104AC, the form which explains the response codes. However, the form is available at the Dept. of Motor Vehicles website, www.nydmv.state.ny.us.

Footnote 3:The letter stated that, unlike no fault coverage, “medical payments coverage” did not contain an exclusion for alcohol or drug use.

Footnote 4:The “reservation of rights” letter does not constitute a denial of the claim(See Blee v. State Farm Mutual Automobile Ins. Co., 168 AD2d 615 [2d Dep’t 1990]).

Footnote 5:The records of the medical examiner must be delivered to the district attorney, if there is any indication that a crime had been committed(County Law § 677[4]).

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 (Randy Sue Marber, J.), dated August 30, 2005. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by two providers to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiffs’ assignor allegedly sustained, arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that defendant failed to proffer sufficient evidence in admissible form to demonstrate that it possessed a “founded belief that the alleged injur[ies] do not arise out of an insured incident” (id. at 199; Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; A.B. Med. Servs. PLLC v State Farm Auto Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, plaintiffs’ motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur. [*2]
Decision Date: February 27, 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 (Jack M. Battaglia, J.), entered May 22, 2006, deemed from a judgment entered June 29, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 22, 2006 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment and denying, in effect as academic, defendant’s cross motion to compel depositions, awarded plaintiff the principal sum of $3,000.75.

Judgment reversed without costs, order entered May 22, 2006 vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for determination of defendant’s cross motion to compel depositions.

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 from a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents annexed to the motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s affidavit failed to lay a proper foundation for the documents annexed to the motion papers and that, as a result, plaintiff failed to establish a prima facie case. In addition, defendant cross-moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions. The court below granted partial summary judgment to plaintiff and denied defendant’s cross motion as academic. This 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 [*2]motion papers. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 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]).

Inasmuch as the lower court denied, in effect as academic, defendant’s cross motion to compel depositions as a result of its conclusion that plaintiff was entitled to partial summary judgment, the matter is remanded to the court below for a determination of defendant’s cross motion.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 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 September 28, 2006, deemed from a judgment entered on December 8, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 28, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,532.04.

Judgment reversed without costs, so much of the order entered September 28, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

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

On appeal, defendant asserts that the affidavit by plaintiff’s president, submitted in support of plaintiff’s 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 president was insufficient to establish that he 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 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 [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Turning to the merits of defendant’s cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant argued that plaintiff was ineligible to receive reimbursement for no-fault benefits since at the time that the services billed for were rendered, plaintiff was a fraudulently incorporated
professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In support of said contention, defendant annexed the transcript of an examination under oath of plaintiff’s owner. While said individual denied knowledge of many aspects of the everyday operations of plaintiff, his testimony was inadequate to establish, as a matter of law, that plaintiff is ineligible for reimbursement of no-fault benefits on the ground that plaintiff’s business manager, a non-physician, was the true owner of plaintiff (see id.; 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]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 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 (Bernard J. Graham, J.), entered August 4, 2006. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s 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 make a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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 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 motion for summary judgment is denied.

Defendant’s cross motion for summary judgment should have been granted. Defendant demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed [*2](Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]), and defendant’s affirmed peer review report and the affidavit of its peer review chiropractor established prima facie that there was no medical necessity for the equipment provided by plaintiff. Since plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (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]; 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]).

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008

Supreme Court, Nassau County

016185/07

TO:Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore AvenueP.O. Box 1144

Bellmore, NY 11710

Law Office of Teresa M. Spina

Attorney for Defendant

170 Froehlich Farm Boulevard

Woodbury, NY 11797

Daniel Palmieri, J.

This is plaintiffs’ motion for summary judgment pursuant to CPLR §3212.

Plaintiffs provided first-party no-fault benefits to persons covered by policies of insurance issued by defendant.

Plaintiff has withdrawn its cause of action on the First Cause of Action on behalf of Antoinette Pisacane.

The Second Cause of Action is for statutory interest and attorney’s fees based on late payment. Defendant does not dispute that the examination under oath of the injured party was on September 17, 2007, meaning that payment was due within 30 days and that payment was sent on October 29, 2007. Hence, summary judgment is appropriate for the statutory interest if any is still due and legal fees demanded by the complaint. 11 NYCRR §65-3.10(a).

The Third Cause of Action is based upon the claim of Latoya Fuller who was treated between February 3 and 8, 2007 and billed on July 2, 2007. Defendant did not pay or deny this bill because it claims that it had reasonable cause to believe that the treatment by plaintiff was the result of an intentional act. In support of this contention, defendant relies on an entry in its computer records which states that GEICO’s insured told defendant that there was an altercation involving the “PH” (no definition is given of PH) and other females. “Someone [*2]opened her door while the vehicle was moving and tried to hit her with something”. “She was in an altercation with a group of females”.

Defendant also relies on an entry in Fuller’s emergency room record which states “pt was standing holding car door – had altercation with driver – reversed, then took off, pt hit by car door fell forward”.

Summary judgment is the procedural equivalent of a trial. S.J. Capelin Assoc. Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 (1974). The function of the court in deciding a motion for summary judgment is to determine if triable issues of face exist. Matter of Suffolk Cty Dept of Social Services v James M., 83 NY2d 178, 182 (1994). The proponent must make a prima facie showing of entitlement to judgment as a matter of law. Guiffrida v Citibank Corp., 100 NY2d 72, 82 (2003); Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so. Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In an action for no-fault payments the plaintiff makes a prima facie showing of entitlement to judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of the No-Fault benefits was overdue. Insurance Law 5106(a); Westchester Medical Center v AIG, Inc., 36 AD3d 900 (2nd Dept. 2007). On this motion plaintiffs argue that they have presented a prima facie case for payment of no-fault benefits for services rendered to Fuller. They have submitted the requisite billing forms, certified mail receipts, signed return receipt cards, and an affidavit from a billing person stating that she personally mailed the claims. There is no dispute that Geico failed to pay or deny the claims within 30 days. On this record the Court finds that plaintiffs have presented a prima facie case.

In opposition Geico relies upon its affirmative defense that the incident which caused the injury was not covered by its policy because it was intentional.

Pursuant to Insurance Law 5106(a), no-fault benefits are overdue if not paid by the insurer within 30 days after submission of proof of loss. See also, 11 NYCRR 65-3.8, formerly 11 NYCRR 65.15(g)(3). The insurer is precluded from asserting any defenses to payment when it fails to deny the claim within the required 30-day period. Presbyterian Hosp. in the City of New York v Maryland Casualty Co., 90 NY2d 274, 278 (1997). A narrow exception to this preclusion rule is recognized for situations where the insurer raises a defense of lack of coverage. Central General Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 (1997).

A defense premised on lack of coverage has been found not subject to the rigorous 30-day rule because there was, in fact, no “accident.” See, Matter of Allstate Ins. Co v Massre, 14 AD3d 610 (2nd Dept. 2005); State Farm Mutual Automobile Ins. Co. v Laguerre, 305 AD2d 490 (2nd Dept. 2003); Metro Medical Diagnostics, P.C. v Eagle Ins. Co., 293 AD2d 751 (2nd Dept. 2002); see also, VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co., 16 Misc 3d 126(A)(App Term, 2nd & 11th Jud Dists 2007) and Vista Surgical Supplies [*3]Inc v State Farm Ins. Co., 14 Misc 3d 135(A)(App Term, 2nd & 11th Jud Dists 2007).

To avail itself of the benefit of this noncoverage, the insurance carrier must demonstrate that an issue exists as to whether there was any coverage at all.

In this case, even assuming that the defense of lack of coverage is available despite lack of denial of the claim, the defendant is not relieved of its burden of demonstrating the existence of triable issues of fact. This defendant has failed to do.

The two documents relied upon by defendant are not sufficient to raise a question of fact.

The cryptic and virtually unintelligible entry of the defendant’s conversation with the owner of the vehicle is inadmissible hearsay. It is not a business record because the source of the information was under no business duty convey her knowledge CPLR §4518(a) Hochhauser v. Electric Ins. Co., 46 AD3d 174 (2d Dept. 2007), and it does not constitute an admission because the informant is not a party to this action. Prince-Richardson on Evidence §8-201 (11th Edition 1995).

The emergency room record also fails to establish an issue of fact. The entry does not disclose the source of the information and is not relevant to diagnosis or treatment Berrios v. TEG Management Corp., 35 AD3d 775 (2d Dept. 2006); Passino v. DeRosa, 199 AD2d 1017 (4th Dept. 1993), Gunn v. City of New York, 104 AD2d 848 (2d Dept. 1984); Cf People v. White, 306 AD2d 886 (4th Dept. 2003).

Hence although a noncovered event may be proffered as a defense, in this summary judgment motion defendant has failed to come forward with any competent evidence to support its contention and thus the motion is granted.

Based on the foregoing the First Cause of Action is withdrawn, judgment is granted in favor of the plaintiff for legal fees and interest, if any, as to the Second Cause of Action (Wallace) and summary judgment is granted as to the Third Cause of Action (Fuller).

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: February 25, 2008

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice

TO:Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Law Office of Teresa M. Spina

Attorney for Defendant [*4]

170 Froehlich Farm Boulevard

Woodbury, NY 11797