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, First District (Howard S. Miller, J.), dated December 20, 2004. The order denied plaintiff’s motion for summary judgment with leave to renew upon submission of proper papers.

Order unanimously affirmed without costs.

In an action to recover first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary
Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Further, the necessary claim forms must be appended to plaintiff’s motion papers in order to establish a prima facie case (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]).

In support of plaintiff’s motion, plaintiff’s attorney indicated that appended thereto were the subject claim forms being sued upon. Such affirmation by an attorney without personal knowledge does not constitute a proper vehicle for the admissibility of the claim forms (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Moreover, the affidavit of plaintiff [*2]provider made no specific reference to the appended claim forms. Under the circumstances, plaintiff’s motion for summary judgment was properly denied with leave to renew upon submission of proper papers.

We note that the court below correctly determined that a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions contained therein provided that the reviewer’s training, observations and
actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

In view of the determination herein, we reach no other issue.
Decision Date: February 27, 2006

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 (Diccia T. Pineda-Kirwan, J.), entered December 16, 2003. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Plaintiff health care provider commenced the instant action to recover $10,811.67 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. The instant appeal involves the same accident and assignor that formed the basis of the appeal in GPM Chiropractic, P.C. v State Farm Mut. Ins. Co. (7 Misc 3d 135[A], 2005 NY Slip Op 50744[U] [App Term, 2d & 11th Jud Dists]). Upon our review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 135[A], 2005 NY Slip Op 50744[U], supra). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether [*2]there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

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

Golia, J., concurs in part and dissents in part in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
V.S. MEDICAL SERVICES, P.C.,
as assignee of RAFAEL RODRIGUES,

Respondent,

-against-
STATE FARM MUTUAL INSURANCE CO.,

Appellant.

Golia, J., concurs in part and dissents in part and votes to grant summary judgment to the defendant.

I concur with the majority in its finding that “the affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a ‘founded belief that the alleged injur[ies] do[] not arise out of an insured incident’…”

However, I would not have reached that issue. Although not specifically addressed in the majority decision, the “proof” submitted by the plaintiff in support of its claim was insufficient in that it did not include any “assignment of benefit” form. Therefore, the plaintiff lacks standing to prosecute this claim, and has not made a prima
facie showing of entitlement to summary judgment due to its failure to submit evidentiary proof that the prescribed statutory billing forms had been mailed and received (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Plaintiff has also failed to comply with 11 NYCRR 65.12 (e) which provides that “[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage” (see also Inwood Hill Med., P.C. v General Assurance Co., 10 Misc 3d 18 [App Term, 1st Dept 2005]).

Inasmuch as the plaintiff failed to submit a proper and complete set of documents in accordance with the prescribed statutory billing forms, it did not make out a prima facie entitlement to summary judgment. [*4]
Decision Date: February 27, 2006

Civil Court, Kings County

98035/04

Delores J. Thomas, J.

Plaintiff, a medical services provider, seeks to recover $2,143.90 in fees for services it provided to assignor Nato Seselia for EMG/NCV test.

Defendant denied payment on the basis that the tests were medically unnecessary.

The only issue at trial as the parties had stipulated to all other pertinent issues, was whether the EMG/NCV test were necessary. Therefore, defendant bore the burden of proof on this issue (see, Citywide Social Work & Psy. Serv. v. Travelers, Indem. Co., 3 Misc 3d 608 [Civ. Ct., Kings Co., 2004]; Elm Medical P. C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [U], 2003 WL 22471156 [Civ. Ct., Kings Co., 2003]; Fifth Ave. Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801 [Civ. Ct., Queens Co., 2003]).

Testifying on behalf of defendant was Joseph Cole, board certified in physical and rehabilitation medicine. Dr. Cole testified that he reviewed plaintiff medical reports dated April 30, 2003 and May 20, 2003, police accident report and a report dated May 6, 2003 for range of motion testing. Dr. Cole testified that the EMG/NCV test performed by plaintiff were unnecessary because there was already a diagnosis. Dr. Cole testified that the test are only ordered if it would alter the diagnosis or if it was needed to determine location of nerve injury (i.e. neck or wrist). He further testified that the medical documentation reflected that the assignor was improving and there was no indication of a “diagnostic dilemma” necessitating the test.

No one testified on behalf of plaintiff in response to Dr. Cole’s testimony; instead the parties stipulated into evidence as Plaintiff’s Exhibit No.3 a Letter of Medical Necessity for NCV/EMG Test from Alexander Rozenberg, MD, FAAPMR, board certified in physical medicine and rehabilitation.

The letter indicates that the assignor presented to plaintiff’s office with complaints of neck pain with radiation from the neck to the right shoulder and arm with numbness, weakness and tingling sensation in the right shoulder and with restriction of neck movement. The assignor had been diagnosed with cervical paraspinal muscle and ligaments strain/sprain secondary to acceleration/deceleration injury.

The letter further indicates that Dr. Rozenberg ordered electromyography studies in order to determine the exact diagnosis, possible localization and extent of injury; better predict prognosis for recovery and possible residual neurologic deficits, plan possible deep electrical [*2]stimulation nerve block or medicamentous nerve block or neurosurgical evaluation if all other treatment modalities failed.

The Letter of Medical Necessity goes on to indicate that the test were done to rule out cervical radiculopathy and evaluate the extent of nerve damage. Dr. Rozenberg states in the letter that sensory nerve conduction studies are important to exclude plexopathy and mononeuropathy. He further states that the Needle EMG is an essential component of the evaluation to specifically define involved myotomes.

Plaintiff’s exhibit indicates that the Nerve Conduction studies were reported as normal. The document further indicates that the Needle EMG studies of both upper extremities and muscles showed evidence of denervation in the distribution of the right C5-6 paraspinal nerve roots. Dr. Rozenberg concluded that the findings were consistent with right cervical radiculopathy. Based upon his findings he advised the assignor to continue physical therapy and added cervical traction.

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 practices. The opinion of the insurer’s expert, standing, alone is insufficient to carry the insurer’s burden of proving that the services were not “medically necessary” (Citywide Social Work & Psy, Serv. v. Travelers Indem. Co., 3 Misc 3d 608, 609 supra.). “Generally accepted practice” is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and value that define its calling” (A.B. Med. Ser. v. New York Central Mut. Fire Ins. Co., 7 Misc 3d 1018 [A][Civ. Ct. Kings Co. 2005]; Citywide Social Work & Psy Serv. v. Travelers Indemnity Co., supra).

In A.B. Med. Serv. v. New York Central Mut. Fire Ins. Co. a similar issue regarding neurological testing was involved. Therein the plaintiff had conducted EMG/NCV tests and Somatosensory Evoked Potential (SSEP) tests to determine whether the patient suffered nerve injury from the accident. At trial, defendant’s witness testified that the test were not medically necessary because they did not serve to substantiate the doctor’s findings from the initial physical examination of the patient. The witness testified that it was generally accepted medical practice to utilize electrodiagnostic testing only to determine whether an injury to a nerve exists and nerve damage had already been diagnosed for this patient.

Thereafter the plaintiff’s medical witness, the treating doctor, testified that EMG/NCV and SEEP testing could be utilized even if there was no “diagnostic dilemma”. The doctor further testified that according to generally accepted medical practice, this testing not only confirms a doctor’s suspicions of possible nerve damage, but may also assist in localizing the nerve injury.

In the instant case, neither defendant doctor or the letter of medical necessity uses the language “generally accepted medical practice” prefacing their statements. Dr. Cole deemed the test to be unnecessary because there was no “diagnostic dilemma”, the patient was improving and from the physical examination and history it could be determined that the assignor/patient had a right-sided cervical radiculopathy and a right sided lumbar radiculopathy. He opined that if the test does not effect the treatment, there is no reason to do the test. Therefore, since the test results were normal, and did not effect the course of treatment, they were unnecessary.

The Letter of Medical Necessity from Dr. Rozenberg clearly set forth the reason he had [*3]requested the test be performed. On cross-examination after having been shown the letter (done after Dr. Cole’s peer review), Dr. Cole agreed that the test could be used to determine the conditions set forth in the letter such as plexopathy and mononeuropathy, and the localization of any nerve injury; nonetheless the maintained that the tests were unnecessary for the reasons he previously stated.

The evidence shows contradictory positions between Dr. Cole and Dr. Rozenberg. The evidence shows that Dr. Rozenberg used the electrodiagnostic testing in light of the patient’s complaints to make an exact diagnosis, to locate a possible lesion and to determine the extent of the injury and to exclude possible conditions. The fact that the results were normal to this Court’s mind is not determinative of the usefulness of the studies. 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 diagnosis and treatment (see also A.B. Med. Serv. v. New York Central Mut. Fire Ins. Co., supra; Alliance Med. Office, P.C. v. Allstate Ins. Co., 196 Misc 2d 268 [Civ Ct. Kings Co. 2003]; see also Citywide Social Work & Psy. Serv. P.L.L.C v. Travelers Indemnity Co., supra]). Defendant has failed to show that the test herein were inconsistent with generally accepted/professional practices and therefore medically unnecessary.

Accordingly, judgment is rendered in favor of plaintiff and against defendant in the sum of $2,143.90. This constitutes the decision and judgment of the Court.

DATED: February 27, 2006

Brooklyn, New York

DELORES J. THOMAS

Judge Civil Court

—[*1]

Cardona, P.J. Appeal from an order of the Supreme Court (Malone, Jr., J.), entered June 23, 2005 in Albany County, which, inter alia, granted plaintiff’s motion to vacate an order dismissing the complaint.

In this action for payment of no-fault benefits for medical expenses arising from injuries allegedly sustained in a motor vehicle accident, defendant moved for dismissal of the complaint, pursuant to CPLR 3126, claiming plaintiff’s willful failure to respond to certain discovery demands. Upon plaintiff’s default in responding to that motion, Supreme Court dismissed the complaint in February 2005. Thereafter, plaintiff moved to vacate that order. Supreme Court (1) granted plaintiff’s request, finding a reasonable excuse for the default in responding to the motion and a potentially meritorious claim, and (2) upon consideration of the merits of the underlying motion, taking into account plaintiff’s response, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126. This appeal by defendant ensued.

The sole issue raised by defendant on this appeal is its contention that Supreme Court erred in providing relief to plaintiff because she failed to appeal the February 2005 order dismissing the complaint pursuant to CPLR 3126 and, therefore, a motion to vacate pursuant to CPLR 5015 (a) (1) was not appropriate. In our view, the court proceeded properly under the particular circumstances herein. While there is no question that, in a properly contested motion[*2]“predicated upon CPLR 3126, an appeal of [the resulting] order or judgment is the proper and sole remedy for the defaulting party” (Pinapati v Pagadala, 244 AD2d 676, 677 [1997]; see Schwenk v St. Peter’s Hosp. of City of Albany, 215 AD2d 906, 908 [1995], lv dismissed 86 NY2d 838 [1995]), here, the default that plaintiff sought to vacate was her default in opposing defendant’s motion to preclude in the first instance. Therefore, Supreme Court did not err in entertaining her motion to vacate (see generally Sik Bun Yuen v Huang, 18 AD3d 460 [2005]; State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 657-658 [2000]; 10 Carmody-Wait 2d § 70:33 [2005]).

Mercure, Peters, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

[*1]

Supreme Court, Appellate Term, Second Department, February 17, 2006

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Amos Weinberg, Great Neck, for respondents.

{**11 Misc 3d at 72} OPINION OF THE COURT

Memorandum.

Judgment reversed with $10 costs, order entered August 18, 2004 vacated, plaintiffs’ motion for partial summary judgment denied and defendant’s cross motion granted to the extent of ordering a hearing to determine plaintiffs’ compliance with Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1a and, in the event plaintiffs’ complaint is not stricken following said hearing, compelling plaintiffs to serve, within 30 days after entry of the [*2]posthearing order, responses to defendant’s sixth interrogatory and to produce the documents requested in the eighth, ninth, tenth and eleventh numbered paragraphs of defendant’s notice for discovery and inspection.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiffs established their prima facie entitlement to partial summary judgment by proof that they submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). Defendant’s assertion that it timely denied the claims lacks merit because the record does not contain an affidavit from a person with personal knowledge either stating that the December 20, 2002 denial of claim form was mailed or setting forth “a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing” (S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U], *2 [App Term, 2d & 11th Jud Dists 2005]). Since defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As a result, the burden shifted to defendant to demonstrate the existence of a material issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

However, defendant further claims that pursuant to CPLR 3212 (f), plaintiffs are not entitled to partial summary judgment{**11 Misc 3d at 73} due to their failure to respond to discovery demands served upon them. Indeed, defendant even cross-moved to preclude plaintiffs from offering evidence at trial due to their failure to respond to said discovery demands or, in the alternative, to compel plaintiffs to respond to defendant’s discovery demands. Annexed to said cross motion were copies of various discovery demands defendant served upon plaintiffs which sought discovery of information regarding potential defenses which defendant is precluded from raising. Defendant also sought discovery regarding plaintiffs’ status as professional corporations licensed to practice in New York. Annexed to defendant’s cross motion was a copy of plaintiffs’ response to defendant’s discovery demands which, among other things, stated that plaintiffs would produce the documents requested in defendant’s notice for discovery and inspection. To the extent the discovery demands concerned matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiffs did not specifically object thereto (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]). However, defendant’s sixth interrogatory and the documents requested in the eighth, ninth, tenth and eleventh numbered paragraphs of defendant’s notice for discovery and inspection sought information regarding the corporate structure and licensing status of plaintiffs.

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals answered a certified question from the United States Court of Appeals for the Second Circuit and held that insurers may withhold payment for first-party no-fault benefits provided by fraudulently licensed medical corporations to which patients have assigned their claims. As noted by the Court of Appeals, Business Corporation Law § 1507 provides: “A professional service corporation may issue shares only to individuals who are authorized by law to practice in this [*3]state a profession which such corporation is authorized to practice” (id. at 319 n 1) and, in addition, pursuant to 11 NYCRR 65-3.16 (a) (12), “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (id. n 2). We hold that a defense based upon plaintiffs’ allegedly fraudulent corporate licensure is not precluded (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra; see generally{**11 Misc 3d at 74} Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Accordingly, the sixth interrogatory and eighth, ninth, tenth and eleventh numbered paragraphs in defendant’s notice for discovery and inspection sought information to which defendant was entitled pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005], supra). Since said items were not palpably improper or privileged, plaintiffs were required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiffs failed to object to defendant’s sixth interrogatory. As a result, plaintiffs are obligated to produce the information sought (see Fausto, 17 AD3d 520 [2005], supra; Marino, 16 AD3d 628 [2005], supra; Garcia, 264 AD2d 809 [1999], supra).

In view of the foregoing, plaintiffs’ motion for partial summary judgment should have been denied due to plaintiffs’ failure to respond to said discovery demands (see CPLR 3212 [f]). Moreover, defendant’s cross motion for an order precluding plaintiffs from offering evidence at trial or, in the alternative, compelling plaintiffs to respond to discovery demands should, subject to the outcome of the hearing for which this matter is remanded (see infra), be granted to the extent of requiring plaintiffs to respond to defendant’s sixth interrogatory and to produce the documents requested in the eighth, ninth, tenth and eleventh numbered paragraphs of defendant’s notice for discovery and inspection.

As indicated above, there is a threshold issue that must be resolved by the Civil Court. Defendant, in the court below as well as in this court, raises an issue concerning the genuineness of the signature of plaintiffs’ counsel, Amos Weinberg, on various papers submitted in this action. Although the complaint, plaintiffs’ notice of motion seeking partial summary judgment and the affidavit of service for said motion which were submitted to the Civil Court bore signatures which purported to be that of plaintiffs’ counsel, Mr. Weinberg, and which, at least, appear to have been signed by the same person, it is apparent to this court that the signatures on the notice of entry of the order appealed from and upon the respondents’ brief submitted to this court, also purportedly signed by Mr. Weinberg, are markedly different. Moreover, we are mindful of the fact that Mr. Weinberg previously testified in a hearing before the Civil Court, Queens County, that it was a pattern and practice in his office to have other people, who are not attorneys, sign his name on a{**11 Misc 3d at 75} regular basis to documents which are filed in court (see Park Health Ctr. v Countrywide Ins. Co., 2 Misc 3d 737 [2003]). As a result, under the circumstances of this case, we are of the opinion that the branch of defendant’s cross motion which sought a hearing to determine which documents submitted in this case, if any, Mr. Weinberg signed in compliance with Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1a should be granted.

Golia, J., concurs with the result only in the following memorandum: While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Pesce, P.J., and Belen, J., concur; Golia, J., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered February 2, 2005. The order, insofar as appealed from, as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, plaintiff was entitled to rely upon defendant’s denial of claim forms which were annexed to defendant’s motion papers to establish the dates of defendant’s receipt of the claim forms (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to establish that it mailed the denial of claim forms to plaintiff within the [*2]prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]), it is precluded from raising its defenses with
exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As a result, the court properly granted plaintiff’s cross motion for summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 14, 2006

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 (Eileen Nadelson, J.), entered October 29, 2004, deemed an appeal from a judgment of that court entered December 20, 2004. The order granted plaintiff’s motion for summary judgment. The judgment entered thereon awarded plaintiff the principal sum of $4,460.

Judgment unanimously reversed, order entered October 29, 2004 vacated and plaintiff’s motion granted only to the extent of awarding plaintiff summary judgment in the principal sum of $1,791 with respect to the claims submitted on behalf of Naika Gousse, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

We have deemed the appeal from the order entered October 29, 2004, which granted plaintiff’s motion for summary judgment, to be an appeal from the judgment entered pursuant to that order (see CPLR 5520 [c]; Neuman v Otto, 114 AD2d 791 [1985]).

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant failed to raise a triable issue of fact with respect to the claims totaling $1,791, which were submitted on behalf of plaintiff’s assignor, [*2]Naika Gousse. Although said claims were submitted subsequent to April 5, 2002, the effective date of the revised no-fault insurance regulations (which authorize examinations under oath [EUOs] for verification purposes), defendant’s submissions failed to establish that the insurance policy in effect at the time the EUOs were requested contained a no-fault endorsement including a provision authorizing EUOs (see Careplus Med. Supply Inc. v Travelers Home & Marine Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). Contrary to defense counsel’s contentions, an EUO provision in the mandatory no-fault endorsement is distinct from an EUO provision in the liability portion of the policy (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Moreover, even assuming that the policy did contain an endorsement authorizing EUOs, defendant did not follow the requisite follow-up verification procedures (see 11 NYCRR 65-3.5 [b]). Accordingly, the claim denials based upon Gousse’s nonattendance were ineffective (see King’s Med. Supply Inc. v New York Central Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]).

On the other hand, with respect to the claims totaling $2,669, which were submitted on behalf of plaintiff’s assignor, Jimmy Cadet, defendant’s submissions were legally sufficient to support defendant’s allegations that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Accordingly, since defendant demonstrated the existence of a
triable issue of fact, the court below erred in granting plaintiff’s motion for summary judgment with respect to the claims submitted on behalf of plaintiff’s assignor, Jimmy Cadet.

In view of the foregoing, plaintiff is granted summary judgment in the principal sum of $1,791 with respect to the claims submitted on behalf of Naika Gousse, and the matter is remanded to the court below for the calculation of statutory interest and attorney’s fees due on those claims, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims submitted on behalf of Jimmy Cadet.
Decision Date: February 14, 2006

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 (Ellen M. Spodek, J.), entered September 14, 2004. The order granted defendant’s motion to vacate a default judgment entered against it.

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

Notwithstanding the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment. In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, defendant was required to establish both a reasonable excuse for the default and a meritorious defense to the action.

In its moving papers, defendant acknowledged having been served with the pleadings, and alleged in an affirmation by outside counsel and an affidavit by defendant’s claims handler, that the pleadings were sent by mail courier to another outside counsel, who failed to receive them. Defendant’s moving papers, however, did not include an affidavit by someone with [*2]personal knowledge of the underlying circumstances. Accordingly, defendant did not show a reasonable excuse for the default. Furthermore, defendant failed to sufficiently establish a meritorious defense. While the denial of claim forms which were submitted with the motion papers included the reasons for the denial of the claims, any assertions in defendant’s motion papers regarding the reasons for the denials were based solely upon the claim denial forms’ conclusory statements to that effect. There was no affidavit by anyone with personal
knowledge of the facts, no documentary proof of any requests for examinations under oath, and no proof that any such requests were mailed.
Decision Date: February 14, 2006

[*1]

Civil Court of the City of New York, Kings County, February 8, 2006

APPEARANCES OF COUNSEL

Baker, Strauss, Barshay & Grossman for plaintiff. Rubin & Fiorella, LLP, for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

This matter presents an issue of first impression with respect to civil procedure in New York. The question concerns the ability of a court to declare a mistrial sua sponte over a party’s objections when it becomes impossible for the trial judge at a bench trial to continue hearing the matter.

The instant action was commenced as a first-party claim for benefits under New York’s No-Fault Insurance Law. Although the original claim involved multiple bills, during the proceedings all but one bill were settled out by the parties. After the close of plaintiff’s case-in-chief, during a recess in the proceedings for the end-of-year holidays, the presiding judge was informed by the Office of Court Administration (OCA) that she was being reassigned from civil to criminal court, and that all pending matters were to be turned over to the supervising judge of the civil court for reassignment to other judges. This reassignment was unexpected and unanticipated.

Because evidence had already been heard, the judge was given permission to remain in civil court for an extra week to complete the trial; however, despite the best efforts of all the participants, it was impossible to conclude the case. The trial judge was then required by OCA to assume her duties in the criminal court. A mistrial was then declared by the court.

CPLR 4402 states that “[a]t any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just.”

In the instant matter, neither party moved for a new trial or a mistrial, and the determination that a mistrial was necessary was made by the court. With respect to motions for mistrials, the law is clear that the decision as to whether or not to grant a new trial lies in the [*2]discretion of the court, when it appears that owing to some accident or surprise, defect of proof, unexpected and difficult questions of law, or like reason, a trial cannot proceed without injustice to a party. (Matter of Bank of N.Y. v Assessor of Vil. of Bronxville, 4 Misc 3d 1014[A], 2004 NY Slip Op 50874[U] [Sup Ct, Westchester County 2004].) Unfortunately, there are no judicial decisions, with regard to civil law matters, that provide guidance as to which circumstances would require or permit a court to declare a mistrial on its own initiative. However, there are several criminal law cases that do address this knotty problem.

In People ex rel. Brinkman v Barr (248 NY 126 [1928]), the New York Court of Appeals permitted the court to declare a mistrial when the judge before whom a criminal case was pending became too ill to appear in court or continue the trial. The request for the mistrial came from the judge himself. Therefore, it appears a judge’s physical incapacity may be a valid basis for the court to declare a mistrial.

In Matter of Romero v Justices of Supreme Ct., Queens County (237 AD2d 292 [2d Dept 1997]), the court was permitted to declare a mistrial when a juror failed to return for deliberations and could not be contacted. The appellate court stated that the trial court could not reasonably be required to order an indefinite continuance, but was justified in concluding that there was no acceptable alternative to a mistrial. In this instance, because the trier of fact was unavailable to complete the trial, a mistrial was deemed to be the appropriate course of action.

Pursuant to Federal Rules of Criminal Procedure rule 25, if by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record, may proceed with and finish the trial.

New York has no rule comparable to this federal rule. However, according to section 21 of the Judiciary Law, a judge “shall not decide or take part in the decision of a question, which was argued orally in the court, when he [or she] was not present and sitting therein as a judge.”

This section of the Judiciary Law has been interpreted, with respect to criminal matters, to prohibit a substitution of judges at hearings where testimony is presented, not to a jury, but to the court, and the substituted judge is called upon to render a decision based on an evaluation of testimony which he or she did not hear. (See, e.g., People v Cameron, 194 AD2d 438 [1st Dept 1993].) Consequently, it would appear that the Judiciary Law would prevent a substitution of judges after evidence has begun at a nonjury trial. (People v Thompson, 158 Misc 2d 397 [Sup Ct, Queens County 1993].) [*3]

In the instant case, because it is a bench trial, it would be seemingly improper for a substituted judge to render a decision based on evidence he or she did not hear, given by witnesses whose credibility he or she could not evaluate. Therefore, because a different judge could not be allowed to continue the trial, the only question is whether the trial judge’s reassignment constitutes a sufficient unexpected disability to warrant the declaration of a mistrial.

At least one court has determined that the fact that the court’s term was shortly to end did not require the declaration of a mistrial, because there were several other courses of action available. (That court failed to enumerate exactly what those courses of action might be.) That court stated that in order to declare a mistrial, a court must find a manifest necessity not founded upon its own convenience. (Matter of Delcol v Dillon, 173 AD2d 704 [2d Dept 1991].) This case is distinguishable from the instant matter, in which the trial judge requested to remain with the case but was unable to do so because of administrative exigencies.

In the case at bar, the trial judge was able to stay her reassignment for one week, which the parties asserted would be a sufficient amount of time in which to conclude the presentation of all of the evidence. Unfortunately, the parties were mistaken, and the trial could not be completed within this time frame. No other judge could be substituted, it was not possible for the judge to further delay her duties in a different court, although she was willing to do so, and an indefinite continuance until the judge might be reassigned back to civil court would be impracticable. As a consequence, in the interests of justice, the court had no alternative but to declare a mistrial.

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 (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment and awarded defendant $250 in costs.

Order modified by denying defendant’s cross motion for summary judgment and deleting the provision awarding defendant $250 in costs; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff did not establish its prima facie entitlement to summary judgment since it failed to conclusively show that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Counsel’s affirmation was of no probative value since it was based upon allegations of a person without personal knowledge that the claim form was actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the affidavit of plaintiff’s corporate officer failed to demonstrate submission of the claim form inasmuch as he did not state that he personally mailed the claim but merely stated that his file included the original proofs of mailing. Nor did his affidavit demonstrate that plaintiff followed a standard office practice or procedure designed to ensure that items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Similarly, defendant’s cross motion for summary judgment should be denied in view of [*2]the circumstances surrounding the ambiguous post office documentation, thereby creating an issue of fact as to whether the subject claim form was ever mailed to defendant. In view of the foregoing, the provision of the order awarding defendant $250 in costs should be deleted.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 6, 2006