—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover payment of no fault benefits under a policy of automobile insurance, the plaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is affirmed, with costs.

Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff’s additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

[*1]

District Court of Nassau County, First District, November 9, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty for defendant. Friedman, Harfenist, Kraut & Perlstein for plaintiff.

{**34 Misc 3d at 296} OPINION OF THE COURT

Fred J. Hirsh, J.

Defendant moves for summary judgment. Plaintiff cross-moves to compel discovery.

Background

Plaintiff Total Equipment, LLC (Total) sues as assignee of Latasha James (James) to recover first-party no-fault benefits for durable medical equipment provided to James.

Defendant asserts it is entitled to summary judgment because it timely denied the claim on the ground the medical equipment provided to James was not medically necessary based upon the peer review report of Ronald A. Csillag, D.C.

Dr. Csillag reviewed and relied upon medical reports and records, no-fault claim forms and a police accident report outlined in his report in preparing his peer review report. None of the reports or records Dr. Csillag relied upon in preparing his peer review report have been provided to the court. Dr. Csillag specifically relied upon the information [*2]contained in the medical reports and records he reviewed including James’s complaints, the diagnoses made and the treatment provided as the factual basis for his opinion that the medical equipment supplied was not medically necessary.

Plaintiff cross-moves to compel defendant to comply with its discovery demands. Plaintiff seeks to obtain copies of the medical reports and records reviewed by Dr. Csillag in preparing his peer review. Plaintiff claims that it needs these reports and records to determine whether the factual assertions made in Dr. Csillag’s peer review report are accurate and to have those records and reports reviewed by a chiropractor or other appropriate health care professional so it can possibly obtain an affidavit establishing the medical necessity of the medical equipment Total provided to James.

Discussion

Defendant establishes a prima facie entitlement to judgment as a matter of law by establishing the timely mailing of a denial and the submission of an affirmed or sworn-to peer review which sets forth a factual basis and a medical rationale for the peer reviewer’s conclusion the treatment, testing, and medical equipment were not medically necessary. (Mosad Med., P.C. v Praetorian Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op{**34 Misc 3d at 297} 51876[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Neomy Med., P.C. v GEICO Ins. Co., 32 Misc 3d 137[A], 2011 NY Slip Op 51532[U] [App Term, 2d, 11th & 13th Jud Dists 2011].)

If the defendant tenders such proof, the plaintiff must submit an affidavit from a health care provider that meaningfully refers to and rebuts the conclusions contained in the peer review report. (Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50189[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Vincent Med. Servs., P.C. v GEICO Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52153[U] [App Term, 2d, 11th & 13th Jud Dists 2010].)

CPLR 3212 (f) permits the court to deny a motion for summary judgment if facts essential to justify opposition may exist but cannot be stated. A motion for summary judgment must be denied where the party opposing the motion has not had a reasonable opportunity to conduct discovery before the motion was made. (James v Aircraft Serv. Intl. Group, 84 AD3d 1026 [2d Dept 2011].)

A party opposing a motion for summary judgment based upon the need for additional discovery must establish the additional discovery might lead to relevant evidence or facts essential to the opposition are within the exclusive control of the defendant. (Davis v Rochdale Vil., Inc., 83 AD3d 991 [2d Dept 2011].)

In this case, the plaintiff has established that it has not had a meaningful opportunity to conduct and obtain discovery. Plaintiff served a demand for interrogatories and a document demand upon defendant on March 16, 2011. Defendant did not respond or object to either the demand for interrogatories or the document demand. Rather than responding to plaintiff’s discovery demands, defendant moved for summary judgment.

One of the items demanded in plaintiff’s document demand is the no-fault file. The defendant’s no-fault file should contain the medical reports and records Dr. Csillag reviewed in preparing the peer review report. The no-fault file may also contain other medical reports and records not reviewed by Dr. Csillag. This material is exclusively in the possession of the defendant.

These medical reports when reviewed by another health care professional might provide plaintiff with the information needed to oppose defendant’s summary judgment [*3]motion by providing an affidavit or affirmation from a health care provider that meaningfully refers to and rebuts the opinions expressed and conclusion reached by the peer reviewer. Plaintiff could also use{**34 Misc 3d at 298} the information contained in the no-fault file to establish there are errors or shortcomings in the peer review report. (Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 31 Misc 3d 1205[A], 2011 NY Slip Op 50500[U] [Nassau Dist Ct 2011].)

This motion raises significant questions regarding the proof a defendant must present to the court when moving for summary judgment in an action brought to recover first-party no-fault benefits where the motion is based upon a peer review report that found the treatment provided, the testing performed or the medical supplies furnished were not medically necessary. More specifically, this motion raises issues regarding the factual basis for the peer reviewer’s medical rationale.

Dr. Csillag, the peer reviewer, submitted a sworn-to peer review report that states he reviewed various medical reports and records and the prescription for durable medical equipment in issue. He summarizes the medical findings contained in those reports and records including the diagnoses of injuries sustained by James. Based upon these facts, Dr. Csillag offers his opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained. Praetorian denied plaintiff’s claim based upon Dr. Csillag’s opinion the medical supplies were not medically necessary for the treatment of the injuries James sustained.

The court was not provided with any of the material Dr. Csillag reviewed because the medical reports and records and other material reviewed by the peer review doctor “are not part of defendant’s prima facie showing.” (Active Imaging, P.C. v Progressive Northeastern Ins. Co., 29 Misc 3d 130[A], 2010 NY Slip Op 51842[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2010].)

A party moving for summary judgment must tender evidentiary proof in admissible form establishing an entitlement to judgment as a matter of law. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980].)

A no-fault insurance carrier is required to pay all necessary medical expenses incurred by a party injured in a motor vehicle accident, “provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses{**34 Misc 3d at 299} may be incurred as a result of the injury” (Insurance Law § 5102 [a] [1] [iv]).^[FN1]

The term “necessary [medical] expenses” is not defined by the Insurance Law (article 51) or the no-fault regulations (11 NYCRR part 65).

The courts have struggled to find a workable definition of the term “medical necessity.” (See CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608, 615 [Civ Ct, Kings County 2004].)

While the term medically necessary is regularly used in the appellate decisions involving actions to recover first-party no-fault benefits, the appellate courts have never provided a definition for this term. Thus, the most workable definition of medical necessity is those practices that are in accordance with generally accepted medical standards. (Id.) [*4]

In this case in order to determine if the medical supplies and equipment provided to James by Total were medically necessary, the court must determine whether a reasonably prudent chiropractor would under similar circumstances have prescribed these medical devices for James. (Taormina v Goodman, 63 AD2d 1018 [2d Dept 1978].)

In order to obtain summary judgment based upon a peer review report that finds the treatment, testing and/or medical supplies were not medically necessary, the defendant insurer must provide the court with a sworn or affirmed peer review report establishing a factual basis and a medical rationale for the conclusion that the treatment, testing and/or supplies were not medically necessary. (Alfa Med. Supplies, Inc. v Auto One Ins. Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51851[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; MSSA Corp. v Redland Ins. Co., 32 Misc 3d 141[A], 2011 NY Slip Op 51606[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 150[A], 2011 NY Slip Op 51119[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010].)

The first issue the court must confront when deciding a motion for summary judgment based upon a peer review is the “factual basis” of the peer reviewer’s factual basis.{**34 Misc 3d at 300}

The peer reviewer does not have first hand or personal knowledge of the injured party’s complaints, injuries and/or treatment. The peer reviewer has not examined or spoken to the injured party. The peer reviewer’s knowledge of the injured party’s complaints, injuries and treatment is based upon the information contained in the medical reports and records and other documents provided by the insurer.

All of this material and the information reviewed by the peer reviewer and upon which the peer reviewer based his or her conclusion is inadmissible hearsay. (Prince, Richardson on Evidence § 8-101 [Farrell 11th ed].)^[FN2]

The no-fault claim form and the material submitted by the assignee are not admissible in evidence unless the party seeking their admission into evidence establishes the documents are business records. (Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2d Dept 2008]; New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011].) Medical records of the other health care professionals reviewed by the peer reviewer would be admissible in evidence if the party seeking their admission establishes the documents are business records. (Wilson v Bodian, 130 AD2d 221 [2d Dept 1987].)

Reports of health care providers prepared for litigation are not admissible in evidence. (Id.; Carter v Rivera, 24 Misc 3d 920 [Sup Ct, Kings County 2009].)

What constitutes good and accepted chiropractic practice is generally beyond the knowledge of the average layperson. (De Long v County of Erie, 60 NY2d 296 [1983]; CityWide Social Work & Psychological Servs. v Travelers Indem. Co., supra.) The court must rely upon the opinion expressed by the peer reviewer to determine whether the services in question are medically necessary. [*5]

Before an expert witness is permitted to offer an opinion, the witness must be qualified as an expert. (Price v New York City Hous. Auth., 92 NY2d 553 [1998]; Caprara v Chrysler Corp., 52 NY2d 114 [1981], rearg denied 52 NY2d 1073 [1981]; Meiselman v Crown Hgts. Hosp., 285 NY 389 [1941].) To qualify as an expert, the witness must possess “the requisite skill, training,{**34 Misc 3d at 301} education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” (Matott v Ward, 48 NY2d 455, 459 [1979] [citations omitted]; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517 [2d Dept 2007].) Therefore, before the court can consider the opinion, the party whose opinion is being relied upon must be qualified as an expert. (Machac v Anderson, 261 AD2d 811 [3d Dept 1999].) Simply stating one is a licensed professional is not sufficient to establish the peer reviewer is an expert. (See Mustello v Berg, 44 AD3d 1018 [2d Dept 2007]; Postlethwaite v United Health Servs. Hosps., 5 AD3d 892 [3d Dept 2004].) In this case, defendant offered no evidence qualifying Dr. Csillag as an expert.

An opinion must be based upon facts in the record or facts personally known to the witness. (Prince, Richardson on Evidence § 7-308 [Farrell 11th ed].) “An expert may not reach a conclusion by assuming material facts not supported by the evidence and may not guess or speculate in drawing a conclusion (Interstate Cigar Co. v Dynaire Corp., supra, at 700).” (Nyon Sook Lee v Shields, 188 AD2d 637, 639 [2d Dept 1992].) The court questions how it can determine the validity of the peer reviewer’s medical rationale since it is based upon material not in the record and material that would be inadmissible at trial as hearsay. (See Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010].) The peer reviewer is not using the medical records reviewed in preparing a peer review for the truth of the material contained in those records.

A peer reviewer may use this material to render an opinion provided it is professionally reliable, meaning that it is the type of material “accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw, 292 AD2d 84, 87 [2d Dept 2002].) Nothing in the peer review report submitted in this matter establishes the material relied upon by the peer reviewer was material generally accepted in the profession as a basis for forming an opinion or the out-of-court material is accompanied by evidence establishing its reliability.

If the peer review report is based solely upon material that would be inadmissible as hearsay, then the peer review report does not have a factual basis based upon evidentiary material in admissible form. If the peer reviewer is relying upon this hearsay material for his or her medical rationale, then the{**34 Misc 3d at 302} opinion contained in the peer review report cannot be the basis for a grant of summary judgment because it is not based upon facts contained in the record.

Plaintiff cannot determine without those medical reports and records whether the peer review report accurately presents the nature and extent of the claimant’s injuries or treatment without reviewing those records. Without giving the plaintiff the opportunity to obtain and review the full no-fault file, the court cannot determine whether there is material available that would contradict or question the peer reviewer’s opinion. (See Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., supra.)

Accordingly, defendant’s motion for summary judgment is denied without prejudice [*6]with leave to renew upon the completion of discovery. Plaintiff’s cross motion to compel defendant to comply with its discovery demands is granted. Defendant shall serve answers to plaintiff’s demand for interrogatories and shall serve a response to plaintiff’s document demand within 45 days of service of a copy of this order with notice of entry.

Footnotes

Footnote 1: An insurer is not required to pay no-fault benefits if the motor vehicle is not required to carry insurance or if the accident arises from the use and operation of a motorcycle. (Insurance Law § 5102 [f].)

Footnote 2: Hearsay issues do not generally arise at trial since the attorneys for the parties generally stipulate to the admissibility of the peer review report and the medical reports and records reviewed by peer reviewer.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 29, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, a sworn peer review report which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that such services were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 14, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see A. Khodadadi Radiology P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), the affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th, & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 5, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint. Contrary to plaintiff’s sole contention on appeal, defendant’s peer review report was sufficient to establish defendant’s entitlement to summary judgment on the ground of lack of medical necessity (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 15, 2010. The order, insofar as appealed from as limited by the brief, implicitly granted the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly granted the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action.

Plaintiff’s motion for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case for all purposes in the action, was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures so as to establish that the claim forms annexed to plaintiff’s moving papers were admissible under the business records exception to the hearsay rule (CPLR 4518). As a result, the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action should have been denied (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; see also [*2]Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered December 11, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment. This action involves eight claim forms for services provided to plaintiff’s assignor.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

The affidavit submitted by plaintiff’s billing clerk was sufficient to establish that the claim forms which sought to recover the sums of $323.25 and $450.77, and which were annexed [*2]to plaintiff’s moving papers, were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that these claims were mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and that defendant had failed to pay or deny the claims within the requisite 30-day period. Consequently, plaintiff established its prima facie entitlement to summary judgment on these claims (see Westchester Med. Ctr., 78 AD3d 1168), and the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as defendant merely stated that it had never received the claim forms, defendant failed to raise a triable issue of fact, and plaintiff should have been awarded summary judgment on these two claims (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the claims seeking reimbursement in the sums of $129.28 and $71.49, while plaintiff made a prima facie showing of its entitlement to summary judgment on these claims, the affidavit submitted by defendant in opposition to plaintiff’s motion was sufficient to establish that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant raised a triable issue of fact (see Zuckerman, 49 NY2d 557; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]), and plaintiff’s motion for summary judgment was properly denied with respect to these two claims.

Finally, as to the claims seeking reimbursement in the sums of $394.73, $193.95, $531.64 and $258.56, plaintiff failed to demonstrate that defendant had not either paid or denied the claims within the requisite 30-day period, or that defendant had issued timely denials of claims that were conclusory, vague or without merit as a matter of law. Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment on these four claims (see Insurance Law § 5106 [a]; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted.

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

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

While I disagree with the sufficiency of defendant’s affidavit attesting to the mailing of the subject denials, I am constrained to concur based upon the Appellate Division’s acceptance of a similar affidavit (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, proof of the mailing of the denials predicated upon a lack of medical [*3]necessity constitutes a valid basis to grant defendant’s motion for summary judgment. I disagree with the majority’s reliance on Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (78 AD3d 1168 [2010]), as there is no evidence that a partial payment was made in this case.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 24, 2009, deemed from a judgment of the same court entered January 27, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,937.25.

ORDERED that the judgment is reversed, without costs, the order entered December 24, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered December 24, 2009, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of the president of Media Referral Inc., the independent medical review service retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with her company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., [*2]50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit of the chiropractor who was retained to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims division employee demonstrated that after defendant had received requested verification, the denial of claim forms, which denied plaintiff’s claims based
upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Accordingly, the judgment is reversed, the order is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

Civil Court of the City of New York, Bronx County

045155/08

Plaintiff represented by:

David Streiner, Esq.

Law Offices of Melissa Betancourt PC

Defendant represented by:

John DeOliveira, Esq.

Law Offices of Teresa M. Spina

Jose A. Padilla Jr., J.

The issue raised in this no-fault action for first party benefits concerns the admissibility of identifiable confidential medical records in a public civil judicial proceeding where no HIPAA authorization or Privacy Rule exception has been demonstrated. On 9/19/11, this Court conducted a bench trial in this no-fault action, wherein the parties stipulated to plaintiff’s prima facie case thus shifting the burden of proof to defendant insurer. In response to the Court’s inquiry whether defense counsel had a HIPAA authorization executed by assignor Shalina Akter (“Akter”), defense counsel conceitedly replied that he neither had one nor required one. Defense counsel argued HIPAA was inapplicable to a no-fault action, but did not cite any statutory or regulatory scheme to allow disclosure of Akter’s identifiable confidential health information in a public civil trial.

The Privacy Rule (45 CFR Titles 160 and 164) promulgated by the United States Department of Health and Human Services under authority granted in the Health Insurance Portability and Accountability Act (“HIPAA”) (Pub. L. No. 104-991, 110 US Stat 1936, codified in various titles of the United States Code) prohibits the disclosure of an identifiable patient’s medical record in a public civil judicial proceeding without the patient’s authorization, subject to certain exceptions (45 CFR §164.508; Matter of Miguel M., 17 NY3d 37, rearg den __NY3d __, 2011 NY Slip Op 86319). The Privacy Rule contains exemptions for disclosure of confidential health records where: 1) the information is to be exchanged for billing purposes (45 CFR [*2]§164.506); 2) in a workers’ compensation action (45 CFR §164.512 [1]); or 3) submission of a claim to an arbitration panel (45 CFR §164.506). None of these scenarios are present herein.^[FN1] HIPAA regulations can be pre-empted upon a demonstration that state law offers “more stringent” protections (see, HIPAA §264 [c][2]; Privacy Rule 45 CFR §160.203 [b]), but none was shown by counsel, nor found to exist herein by this Court.

The Privacy Rule authorizes disclosure of health information, subject to certain conditions, “in the course of any judicial or administrative proceeding,” in a response to “an order of a court or administrative tribunal” (45 CFR §164.512 [e][1][i]) or “a subpoena, discovery request or other lawful process” (45 CFR § 164.512 [e][1][ii]). The Privacy Rule also contains an exception for subpoenas and the like. This exception is conditioned on the demonstration of “satisfactory assurance,” from the party seeking the information, of compliance with the elements set forth in 45 CFR §165.512 (e)(1)(iii). Due to defendant’s position that HIPAA did not apply to no-fault actions, it intentionally failed to avail itself of the above-noted procedures under the Privacy Rule. The Court notes that plaintiff’s counsel never offered nor acknowledged if its office had ever obtained a HIPAA authorization from its assignor or exchanged one with opposing counsel.

Previously, this Court had repeatedly informed defendant’s law firm, among others, of the need to comply with the HIPAA statute’s authorization prerequisites.^[FN2] While HIPAA does not create a private cause of action for those aggrieved (see, 65 CFR §2566), failure to comply with HIPAA and the Privacy Rule can result in imposition of federal civil and criminal penalties (42 USC §1320d-5). These fines and penalties range from as low as $100 per incident/annual maximum of $25,000 for repeat violations for negligent disclosures, to $50,000 per violation with annual maximum of $1.5 million for uncorrected wilful negligent violations; along with fines of up to $250,000 and imprisonment for up to 10 years where unauthorized identifiable health information has been intentionally used for “commercial advantage” (see, American Recovery and Reinvestment Act of 2009, Public L. No. 111-5). The mere “inconvenience” to the insurer or assignee of first party no-fault benefits does not justify disregarding the confidentiality interest protected by HIPAA and the Privacy Rule. Accordingly, this Court imposes the judicially sanctioned remedy of exclusion of proposed medical testimonial evidence (Matter of Miguel M., supra [medical records obtained in violation of HIPAA or the Privacy Rule and the information contained in those records were deemed inadmissible in a proceeding to compel assisted outpatient treatment]), in the absence of a HIPAA authorization or compliance with the Privacy Rule exceptions. [*3]

In light of the stipulation between the parties, the exclusion of any proposed defense medical testimony on the issue of medical necessity and the lack of any other evidence submitted in opposition to plaintiff’s prima facie case, the Clerk of the Court is directed to enter judgment in favor of plaintiff against defendant insurer GEICO Insurance Company in the sum of $1346.76 with statutory interest, cost and fees as of 5/29/08.

This constitutes the Decision and Order of this Court.

Dated:11/3/11_______________________

Jose A. Padilla, Jr.

Judge of the Civil Court

Footnotes

Footnote 1:“The maxim expression unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what it omitted or not included was intended to be omitted or excluded,” (NY Statutes §240). Since HIPAA explicitly exempts pre-authorization in workers compensation and arbitration cases but made no exemption for no-fault actions, the only inescapable conclusion is that Congress did not mean to exclude no-fault benefits related actions from HIPAA or the Privacy Rule.

Footnote 2: Defense counsel’s reliance on the NYS Department Insurance Opinion Letter, dated July 8, 2003, is misplaced as that letter’s analysis and conclusion dealt primarily with HIPAA’s inapplicability in a workers’ compensation setting.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 21, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 21, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of independent medical examinations (IME) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 02, 2011