[*1]

District Court of Nassau County, Third District, May 13, 2005

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City, for defendant. Israel, Israel & Purdy, LLP, New York City, for plaintiff.

OPINION OF THE COURT

Scott Fairgrieve, J.

The defendant moves for an order pursuant to CPLR 3042 (c) compelling the plaintiff to respond to the defendant’s demand for a bill of particulars and for an order pursuant to CPLR 3124 compelling the plaintiff to produce a witness for examination before trial, or, in the alternative, to strike the plaintiff’s pleadings for noncompliance. The plaintiff opposes the defendant’s motion.

The defendant’s motion to strike the plaintiff’s complaint for plaintiff’s failure to respond to the defendant’s demand for a bill of particulars is denied as moot, as the plaintiff has since answered the defendant’s bill of particulars. Moreover, contrary to the defendant’s assertion in its reply affirmation, the court finds said responses to be sufficient.

The defendant also seeks to dismiss the plaintiff’s complaint upon the failure of the plaintiff’s treating physician to appear for an examination before trial (EBT).

The court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v Pei-Fei Lee, M.D. P.C., 192 AD2d 1008 [3d Dept 1993]).

UDCA 1101 (a) requires that the Nassau County District Court adopt all of the procedures set forth in the CPLR with regard to disclosure. [*2]

CPLR 3101 states, in pertinent part, that:

“(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:

“(1) a party, or the officer, director, member, agent or employee of a party;

“(2) a person who possessed a cause of action or defense asserted in the action . . . .”

Accordingly, pursuant to CPLR 3101 (a), in the Nassau County District Court there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” (Emphasis added.) The words “material and necessary” should be interpreted liberally to “require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test [to determine if the information sought is material and necessary] is one of usefulness and reason” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also U.S. Ice Cream Corp. v Carvel Corp., 190 AD2d 788 [2d Dept 1993]). The term “necessary” has been construed to mean “needful” rather than “indispensable” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968], supra). “If there is any possibility that the information [was] sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence material . . . in the prosecution or defense’ ” (Matter of Comstock, 21 AD2d 843, 844 [4th Dept 1964]). However, the Allen case makes clear that disclosure extends to all relevant information calculated to lead to relevant evidence not just information that can be used as evidence-in-chief (see, CPLR 3101; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:7, at 18, citing West v Aetna Cas. & Sur. Co., 49 Misc 2d 28 [1965], mod 28 AD2d 745 [3d Dept 1967]; see also Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]). “If the data elicited is within the broad scope of CPLR 3101 (a) as construed in the Allen case, the excursion should be called a ‘relevant inquiry’. That would leave [the term] ‘fishing expedition’ to describe the inquiry that goes beyond that extended compass” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:8, at 19). Furthermore, matters relating to disclosure lie within the broad discretion of the trial court, as it is in the best position to determine what is material and necessary (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968], supra; see also, Andersen v Cornell Univ., 225 AD2d 946 [3d Dept 1996]).

Applying the principles established in the Allen case to the issue of an insurance carrier’s right to an EBT of a medical provider in a no-fault case, the court finds that, provided certain conditions are met by an insurance carrier, the carrier is entitled to an EBT of a medical provider. The Court of Appeals has clearly held that, pursuant to the no-fault regulations, in a case in which no additional verification is timely sought, an insurance carrier must pay or deny a claim of no-fault benefits within 30 days from the receipt of a claim or be precluded from interposing a defense to the denial of the claim, with limited exceptions (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., [*3]90 NY2d 274 [1997]). In the case of a defense of “medical necessity,” the courts have held an insurance carrier is precluded from raising a defense of “medical necessity” where the denial was not timely and that summary judgment in favor of the medical provider is appropriate in such situations, provided the plaintiff submits proper proof of the claim and the amount of the loss (see, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997], supra; Howard M. Rombom, Ph.D., P.C. v Interboro Mut. Indem. Ins. Co., 186 Misc 2d 847 [App Term 2000]). Thus, when the insurance carrier has failed to issue a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible on any defense, except if the insurance carrier’s defense falls within limited exceptions. The limited exceptions set forth in the Presbyterian case are where untimely denials are of no consequence because the insurer is not required to pay the claim and where the claim is ultimately deemed invalid (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], supra). Such situations include, inter alia, fraud and a lack of coverage defense based upon a belief that the alleged injury does not arise out of the insured accident (see, Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]).

If an insurance carrier has made a timely denial, based upon “medical necessity,” then its objective in seeking an EBT of the medical provider is not a means of harassing the medical provider, but rather the insurance carrier is trying to obtain relevant information on its defense of “medical necessity.” Certainly in cases where an insurance carrier timely denied the no-fault claim, based upon the ground of “medical necessity,” the carrier is entitled to explore why the medical provider or treating physician determined the treatment to be necessary. However, if an insurance carrier seeks an EBT of a medical provider, to inquire about the “medical necessity” of the treatment provided to the plaintiff’s assignor, when the insurance carrier has failed to timely deny the medical provider’s claim, such failure will preclude an EBT of plaintiff and any other defenses not raised. The defendant must satisfy the following standard expressed in Socrates Psychological Servs., P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 642, 654 [Civ Ct, Queens County 2005]) which, in relying on Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [2005]), stated:

“[T]he lodestar for determining a no-fault first-party benefits case is the denial of claim, the NF-10. To avoid a plaintiff’s successful motion for summary judgment, an insurer must state, with a high degree of specificity, in its NF-10, any applicable defense, except for fraud (presently defined only as a staged accident) or lack of coverage, and must stand or fall upon those defenses. If not raised in a timely fashion and with specificity, those defenses will not be entertained later, no matter how meritorious they may be in substance (Metropolitan Radiological, [7 Misc 3d 675] [2005], supra [citing cases]; see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]; Socrates Psychological Servs., P.C. v Lumbermans Mut. Cas. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50690[U] [App Term, 1st Dept 2004] [per curiam]).”

The court in Metropolitan Radiological continued that the NF-10 is the only appropriate yardstick for measuring a discovery device’s propriety, not a perusal of any number of the “separate and complete” or “separate and distinct” affirmative defenses contained in the defendant insurer’s answer. The court stated:

“In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and was done so timely . . .

“Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.” (Metropolitan Radiological, 7 Misc 3d at 679.)

The reasoning of Metropolitan Radiological applies equally to the present situation of the appropriate scope of an EBT. This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10. The four corners of the denial of claim form, the NF-10, and defenses there stated with a high degree of specificity (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]) should yield the examining attorney at an EBT with sufficient and fertile avenues of disclosure.

In the instant case, neither party addresses the issue of whether the defendant has issued a timely denial and the basis for denial of plaintiff’s claim.

Accordingly, the defendant’s motion is denied.

[*1]

Civil Court of the City of New York, New York County, May 12, 2005

APPEARANCES OF COUNSEL

Moore & Associates, New York City (Michael L. Rappaport of counsel), for defendant. Leon Kucherovsky, New York City (Matthew Viverito of counsel), for plaintiff.

OPINION OF THE COURT

Ellen Gesmer, J.

Plaintiff brings this action to recover $1,791.73 under the No-Fault Law for MRIs that it allegedly performed on its assignor, Olga Papirova. Defendant Travelers Insurance Company moves for summary judgment on the grounds that (1) plaintiff lacks standing to assert the claim because the doctor who performed the MRIs was an independent contractor on whose behalf the plaintiff may not submit a claim, and (2) the MRIs were not medically necessary. Plaintiff [*2]opposes the first claim on the grounds that defendant waived this argument by failing to raise it in a timely denial. Plaintiff opposes the second claim on the grounds that, since it is a radiology facility, it need not prove the medical necessity of the tests administered. For the reasons set forth below, the court grants defendant’s motion on the grounds that it has satisfactorily shown that the MRIs were not medically necessary.

The court’s function on a motion for summary judgment is issue finding rather than issue determination. (Brown v Achy, 9 AD3d 30, 33 n 2 [1st Dept 2004], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].) The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vitiello v Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998].) Once the movant has offered sufficient proof to establish a prima facie case, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)

To establish its first argument, defendant points out that the MRIs were performed by Dr. Ravindra Ginde who, as plaintiff acknowledges, is an independent contractor and not an employee of plaintiff. Defendant then argues, based on an informal opinion of the Department of Insurance dated February 21, 2001, that plaintiff may not seek reimbursement for Dr. Ginde’s services since a professional medical corporation may only bill for services rendered by an employee. (See also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444, 445 [Civ Ct, Queens County 2004].) However, since this defense does not assert either noncoverage or insurance fraud by the assignor, the defense is waived unless asserted in a timely denial. (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 283 [1997]; A & S Med. P.C. v Allstate Ins. Co., 15 AD3d 170, 171 [1st Dept 2005]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999]; A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U] [App Term, 1st Dept 2004].) Since defendant did not raise this defense in its denial of plaintiff’s claim, defendant waived the defense and the court may not grant summary judgment for defendant on this issue.

I now turn to defendant’s defense of lack of medical necessity, which defendant properly raised in a timely denial. Defendant supports its defense with the affirmed peer review report of Dr. Arthur Bernhang. (See A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U] [App Term, 1st Dept 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U], *1 [App Term, 2d & 11th Jud Dists 2004]; S&M Supply, Inc. v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2003].) Dr. Bernhang concluded that the MRIs performed on plaintiff’s assignor were not medically necessary. He noted that Ms. Papirova was pregnant at the time of the motor vehicle accident on January 25, 2002. He further pointed out that, when she was examined on February 13, 2002, Dr. St. Hill, the examining doctor, had recommended that [*3]her spine should be x-rayed after she gave birth. Dr. Bernhang found that, contrary to the recommendation, Ms. Papirova did not undergo spinal x-rays after she gave birth. He also noted that she did not have a neurological examination after she gave birth, which would have indicated whether the neurological symptoms found by Dr. St. Hill were attributable to the pregnancy or to the accident. Absent x-rays and a follow-up neurological exam, Dr. Bernhang found that the MRIs were not medically necessary. This finding is sufficient to shift the burden to plaintiff to show that the MRIs were in fact medically necessary. (Alvarez v Prospect Hosp., 68 NY2d at 324.) If plaintiff fails to meet its burden, defendant’s proof may entitle it to summary judgment in its favor. (Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d & 11th Jud Dists 2003].)

In response, plaintiff has not submitted any documentation in admissible form (or indeed, any documentation at all) to establish that the services rendered were medically necessary. Instead, plaintiff relies on the decision in West Tremont Med. Diagnostics, P.C. v GEICO (8 Misc 3d 423 [Civ Ct, Richmond County, McMahon, J.]) to support its argument that it cannot be deprived of compensation, even if the insurer establishes that the services performed were not medically necessary, because, as a radiological facility, plaintiff “merely fills referrals.” Respectfully, the court disagrees with the conclusion in West Tremont Med. and rejects plaintiff’s argument.

Under the No-Fault Law, individuals are entitled to be compensated for “basic economic loss” resulting from injuries caused by the operation of a motor vehicle. (Insurance Law § 5101 et seq.) “Basic economic loss” is defined to include “all necessary expenses” for medical services. (Insurance Law § 5102 [a] [1]; 11 NYCRR 65-1.1.) Consistent with that, when a claimant, or its assignee, makes a claim, an insurer may deny it on the grounds that the services rendered are not medically necessary. (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 202; Country-Wide Ins. Co. v Zablozki, 257 AD2d at 507; A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U], *1; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U].) Neither the statute, the regulations nor the courts have recognized any exception to this requirement, apart from West Tremont. Consequently, apart from that decision, there is no support for the proposition that a medical provider may be reimbursed for a service which is not medically necessary, and that MRIs, or any other form of medical treatment, are exempt from the requirement that they be medically necessary in order to be eligible for reimbursement.

In West Tremont, which was decided after trial, the court found that the defendant’s expert testified unequivocally that “the MRIs were performed unnecessarily.” (West Tremont at 425.) Notwithstanding that finding, the court held that defendant had not met its burden of proof to establish that the MRIs were medically unnecessary. In reaching this anomalous conclusion, the court cited the testimony of defendant’s expert who testified that plaintiff diagnostic center was “not the entity that determines what test is necessary for the patient to undergo.” (Id. at 427.) The court then went on to hold that the defense of medical necessity “should not be available” against the plaintiff since it “does not make an independent medical evaluation of the patient.” (Id. at —, 2005 NY Slip Op 25176 at *3.) The court held that this result is consistent with “the purpose and intent of the Insurance Law no-[*4]fault benefits statute which is expedient payment of benefits to automobile accident victims.” (Id.) This court respectfully disagrees with this result.

In reaching its conclusion, the West Tremont court violated two fundamental rules of statutory construction. First, “[w]here words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 76.) When construing statutes, the court’s job is to ascertain and give effect to the legislative intent, but the “intention of the Legislature is first to be sought from a literal reading of the act itself.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b].) The no-fault statute is clear and unambiguous: claimants may only be reimbursed for “necessary” medical services. (Insurance Law § 5102 [a] [1].) In light of the clarity of the statute, “there is no occasion to resort to other means of interpretation.” (Di Marco v Hudson Val. Blood Servs., 147 AD2d 156, 158 [1st Dept 1989]; Roth v Michelson, 55 NY2d 278, 283 [1982] [statute to be interpreted literally, in the absence of ambiguity]; People v Ayala, 142 AD2d 147, 161 [2d Dept 1988] [explanation is superfluous in the absence of ambiguity].) Therefore, the West Tremont court had no reason to look to legislative history or the legislative purpose to interpret the statute. It should have simply recognized that the defense of medical necessity is available against all medical providers.

Secondly, the West Tremont decision discusses only one aspect of the statutory purposes and ignores the rest. While it is true that the No-Fault Law was adopted in order to expedite the processing of claims, the prevention of fraud and “widespread abuse” was also a major concern. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862 [2003].) To permit medical providers to receive reimbursement even when the insurer has proven that the service provided was not medically necessary would encourage fraud, rather than combat it. Thus, this construction would cause “objectionable results” in violation of the court’s obligation to avoid results which would cause “injustice, mischief, or absurdity.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 141.) In fact, the construction urged by plaintiff would require insurers to pay for MRIs of the entire spine when the insured suffered a broken toe, or for full body scans for broken arms; indeed, insurers would have to pay for all radiological testing, no matter how unrelated to the insured’s injuries. Plaintiff’s analysis would also require insurers to pay for all medical supplies, since medical suppliers, like radiology facilities, do not “make an independent medical evaluation of the patient.” This result would be absurd and in total derogation of the statute.

At oral argument, plaintiff’s counsel argued that requiring radiology providers to rebut a showing of lack of medical necessity would place an impossible burden on them. The court disagrees. At worst, the problem is one of cost rather than impossibility; the provider is free to retain a doctor to submit an affirmation as to the medical necessity of the treatment rendered. Moreover, having recognized the problem, there are a variety of ways in which a radiology facility could protect itself. For example, it might require an affidavit of medical necessity from the referring doctor, in addition to a prescription, as a condition for accepting an assignment of benefits from the patient. But given the clarity and lack of ambiguity in the statute, the problem, [*5]if there is one, cannot be solved by the courts, since it is our obligation simply to enforce the plain language of the statute.

For these reasons, the court refuses to follow the holding in West Tremont. Instead, the court will follow the well-established rule that the failure of the medical facility to rebut the insurer’s showing that the service provided was not medically necessary requires denial of reimbursement. (Alvarez v Prospect Hosp., 68 NY2d at 324; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U], *2 [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822, 825 [Civ Ct, Kings County 2005].)

Accordingly, defendant’s motion for summary judgment is granted.

District Court of Nassau County, Third District

5010/03

Sondra K. Pardes, J.

Chief Judge Kaye recently noted that the Legislature enacted the Comprehensive “Automobile Insurance Act”… – commonly known as the No-Fault Insurance Law-with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts.” (see, Pommells v Perez, NYLJ 4/29/2005, at 18, cols 1-6, at 19 cols 1-3). The instant case, is but one of a myriad of cases that demonstrate the lengths to which parties are willing to go to defeat the objectives of this legislation.

PROCEDURAL HISTORY

This is an action for recovery of No-Fault Insurance benefits for medical treatment provided on September 11, 2002, in the amount of $543.04. The plaintiff commenced this action by service of the summons and complaint on June 19, 2003. Issue was joined on July 18, 2003. The plaintiff served discovery demands dated July 25, 2003 and the defendant responded to those demands on February 26, 2004.

The defendant filed a Notice of Trial and Certificate of Readiness for Trial on [*2]June 4, 2004. The plaintiff filed a motion to strike the defendant’s Notice of Trial on

INDEX NO. 5010/03

June 18, 2004, on the grounds that the Notice of Trial was premature and improper in that in that the defendant failed to adequately and completely respond to the plaintiff’s discovery demands.

The defendant failed to respond to the plaintiff’s motion to strike the Notice of Trial. The motion was submitted without opposition on July 12, 2004. On July 16, 2004 this court, (Marber, J.), directed the parties to appear for a discovery conference on September 30, 2004.

On September 30, 2004 plaintiff’s motion to strike the Notice of Trial, the motion was submitted without opposition once again. On October 27, 2004, this court, (Anzalone, J.), issued an Order directing the parties to appear for a discovery conference to be held on December 9, 2004 to address the issues raised in the plaintiff’s motion. On November 23, 2004 the plaintiff moved for summary judgment. The conference scheduled for December 9, 2004 was adjourned to January 3, 2005, at the request of the plaintiff.

The defendant’s affirmation in opposition to the plaintiff’s summary judgment motion did not address the substantive issues raised in plaintiff’s motion papers. Counsel only asserts that the Notice of Trial was served June 2, 2004 and had not been vacated and therefore, pursuant to CPLR 3212, the plaintiff’s motion for summary judgment should be denied as untimely.

This court directed counsel for both parties to appear for a conference on March 7, 2005. On that date the parties agreed to resubmit the plaintiff’s motion to Strike the Notice of Trial and the plaintiff’s motion for summary judgment to be decided together. The motions are decided as follows.

MOTION TO STRIKE THE NOTICE OF TRIAL

The Plaintiff’s motion to strike the defendant’s Notice of Trial was repeatedly submitted without opposition from the defendant. Accordingly the motion is granted.

MOTION FOR SUMMARY JUDGMENT

In order to make a prima facie showing of entitlement to summary judgment in a No-Fault Insurance action, a medical provider must submit evidentiary proof that it submitted the appropriate claim forms and that the forms were received by the insurer. (see, Damadian MRI in Elmhurst v Liberty Mutual, 3 Misc 3d 128 [A], [App Term 9th and 10th Jud Dist, 2003]). Once a prima facie showing has been made, the burden shifts to [*3]the opposing party to produce evidentiary proof to establish the existence of material issues of fact. (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]).

INDEX NO. 5010/03

In the instant case it is uncontroverted that the plaintiff submitted claims for medical treatment to the defendant and the claims were received in November of 2002. Partial payment was made and the balance denied on each claim within the time prescribed by statute. (see, 11 NYCRR 65-3.5[a]). In each case the defendant indicated on the Denial of Claim form, “code changed to reflect level -of service” and paid a lower fee associated with the new code. The plaintiff asserts that the denials were issued “without a sufficiently detailed factual basis and medical rationale” for the claims’ rejection, i.e. without any explanation for the determination to change the CPT codes. The plaintiff argues that these denials are ineffectual under the rationale articulated in Amaze Medical Supply Inc. v Eagle Insurance Co., 3 Misc 3d 128 [A]; (App Term, 2nd and 11th Jud Dist, 2003).

In opposition to the motion for summary judgment counsel for the defendant states that this motion should be denied because it was submitted more than 120 days after the service of the Notice of Trial and “the Notice of Trial has not been vacated”. The defendant did not respond to the substance of the plaintiff’s motion for summary judgment. The defendant’s affirmation in opposition was dated December 8, 2004. On that date the defendant was clearly aware that a motion to strike the Notice of Trial had been submitted on June 18, 2004, 16 days after the Notice of Trial was served. The defendant was also aware that motion had been adjourned repeatedly, apparently with consent of both counsel, and no decision had yet been rendered when the motion for summary judgment was filed. Moreover, at a conference held on March 7, 2005, the court pointed out the defendant’s failure to oppose the motion to strike the Notice of Trial and its failure to offer any substantive opposition to the motion for summary judgment. Nevertheless, the defendant agreed that both motions be submitted on that date.

Inasmuch as the court has granted the plaintiff’s motion to strike the Notice of Trial, the court finds that the plaintiff’s motion for summary judgment is not untimely pursuant to CPLR 3212. In addition the court concurs with the plaintiff that the defendant’s determination to change the CPT codes with respect to the claims in question and to pay reduced fees not supported by a peer review or any other proof “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” are ineffectual (see, Amaze Medical Supply, supra 2003 WL 23310886, 1) . Finally, the defendant has failed to come forth with any evidentiary proof of a triable issue of fact requiring trial. [*4]

INDEX NO. 5010/03

Accordingly, the plaintiff’s motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against th defendant in the sum of $543.04, plus interest at the rate of 2% per month from June 19, 2003, plus attorney fees of 20% thereof, (attorney fees not to exceed $850.00), plus costs and disbursements of this action.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: May 9, 2005

CC:Israel, Israel & Purdy, LLP

Serpe, Andre & Kaufman

SKP:rad

Civil Court of the City of New York, Kings County

63796/2003

Milagros A. Matos, J.

Facts

Plaintiffs medical providers A.B. MEDICAL SERVICES P.L.L.C. (“A.B. Medical”), LVOV ACPUNCTURE P.C.( “LVOV”), and SOMUN ACUPUNCTURE, P.C. (“Somun”), Assignees of SERGEY MINHUK, instituted this action to recover first party no-fault benefits from defendant insurer NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY (“insurer”). LVOV and Somun were denied payment by defendant insurer for acupuncture treatments performed on the patient/insured Sergey Minhuk. The claims for unpaid acupuncture services by LVOV and Somun were settled at trial, and the actions by LVOV and Somun were discontinued against defendant insurer.

A.B. Medical was denied payment by defendant insurer for psychotherapy sessions and neurological testing performed on the patient/insured Sergey Minhuk. The patient was injured in an automobile accident on May 25, 2002. In June and July, 2002, Dr. Jeffery Schwartz, a doctor at A.B. Medical, examined the patient and conducted Electromyography and Nerve Conduction Velocity (EMG/NCV) tests and Somatosensory Evoked Potential (SSEP) tests to determine whether the patient suffered nerve injury from the accident. In July and August, 2002, Dr. Alexander Braver, a doctor at A.B. Medical, performed psychotherapy sessions on the patient.

At the time the services were rendered, the patient Sergey Minhuk was insured under a no-fault insurance policy issued by defendant. The no-fault benefits were properly assigned to A.B. Medical, who submitted claim forms to defendant totaling $6,150.11. Defendant insurer made a partial payment to A.B. Medical in the amount of $1972.08 due to a late denial of claim, leaving a balance of $4,187.03. Defendant denied the remaining claims based upon a denial form and peer review report stating that the sessions and tests were not medically necessary. Before trial the parties stipulated that the only issue for determination by the court was whether the diagnostic testing was medically necessary as defined by Insurance Law § 5102[a][1], and [*2]thus whether or not defendant properly denied payment of the claim. The bills at issue are as follows:

Psychotherapy

8/7/02 bill for diagnostic interview ($218.35) performed on 5/30/02 and 8 psychotherapy sessions ($960.00) performed on 5/31/02-7/31/02 totaling $1,178.35;

7/23/02 bill for a psychotherapy session performed on bill date for $156.32;

9/17/02 bill for 2 psychotherapy sessions performed on 8/7/02 and 8/14/02 totaling $240.00;

Neurology

8/12/02 bill for SSEP testing performed on 6/13/02 totaling $604.24;

8/13/02 bill for EMG/NCV, motor nerve and reflex testing performed on 7/11/02 totaling $1,999.12.

The court conducted a full trial of this matter on March 22, 2005. At trial, both sides presented the testimony of physicians. For the psychotherapy bills, defendant presented Dr. Martin Lipschutz, the doctor that had authored the peer review report upon which the denial was based. Dr. Lipschutz testified that the psychotherapy sessions were not medically necessary due to insufficient information on file justifying ongoing psychotherapy sessions. Plaintiff did not present a witness on the psychotherapy bills, but claimed that Dr. Lipschutz did not adequately review available records to determine lack of medical necessity.

For the Neurology bills, defendant presented Dr. Peter Gastaldi, a chiropractor. He found that the tests were medically unnecessary because the treating doctor provided no objective or subjective findings warranting neurological testing for this patient. Plaintiff presented Dr. Jason Schwartz, the treating neurologist. Dr. Schwartz testified that EMG/NCV testing and SSEP testing is appropriate when there is a diagnostic suspicion of further nerve damage and also to localize such damage.

Discussion

At trial, defendant must establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services in order to sustain its burden of proof. (Nir v. Allstate Ins. Co., ___ NY2d___, 2005 WL 562739 [Civ Ct, Kings County 2005]; see also Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 2004 NY Slip Op 24034 [Civ Ct, Kings County 2004]; Inwood Hill Medical P.C. v. Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U][Civ Ct 2004].) Defendant’s medical rationale may be insufficient if not supported by evidence of the “generally accepted medical/professional practice.” (Nir v. Allstate Ins. Co., 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 values that define its calling.” (Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d at 616, supra.)

1. Psychotherapy sessions

Defendant’s peer review doctor, Dr. Lipschutz, testified that the limited information [*3]presented by patient’s treating physician did not justify the need for a psychiatric referral. Dr. Lipschutz testified that the psychotherapy was unwarranted because of A.B. Medical’s “generic” paperwork, which lacked sufficient details of the accident, patient’s symptoms, social factors behind treatment, or objective findings by the treating physician. On cross examination, plaintiff showed that A.B. Medical’s paperwork detailed the accident, the patient’s psychiatric history, current medical condition, medications, social history, results of the physical examination, and diagnosis. Dr. Lipschutz could not support his assertion, that plaintiff’s paperwork was inadequate and therefore psychotherapy sessions were medically unnecessary, with any evidence that plaintiff’s paperwork deviated from generally accepted practice, standards, or values in the field. Therefore, Dr. Lipschutz’ opinion and defendant’s medical rationale to deny payment for lack of medical necessity are insufficient to sustain defendant’s burden of proof.

Even if this Court were to find that Dr. Lipschutz’ opinion was properly supported by evidence of generally accepted practice, his opinion would hold little weight. The short period of time invested, 25 minutes, to review records, come to a conclusion, and complete a report reveals that Dr. Lipschutz did not sufficiently consider the medical necessity of the services provided to the patient. Dr. Lipshutz testified that he reviewed 14 records in preparing his peer review report, including: initial consultation reports, psychotherapy session notes, rehabilitation evaluations, the treating physician’s evaluation, a police accident report, a letter of medical necessity, a narrative report regarding psychological testing, a psychological evaluation, a prescription for medical supplies, MRIs of the right knee, lumbosacral spine, and cervical spine, and electrodiagnostic study reports. He testified that in less than 25 minutes he reviewed the above-mentioned records, came to a conclusion as to the medical necessity of the patient’s psychotherapy sessions, and wrote an extensive three-page peer review report. Plaintiff asserted and this Court agrees that this amount of time is insufficient to carefully determine and detail that a patient does not need the medical services provided by the treating doctor.

Finally, Dr. Lipshutz testified that the psychiatric evaluation performed on 5/30/02 may have been performed by an unlicensed social worker, not a psychiatrist. Although an unlicensed master’s level clinician may not perform psychotherapy sessions, even if supervised by the licensed psychologist (See NYS Educational Law §§ 7600-7606), Dr. Lipschutz’ could not definitively testify that this was the case. On cross-examination, Dr. Lipschutz testified that he did not know what degree of involvement Dr. Braver, the treating psychologist, had in the evaluation. Therefore, defendant could not properly deny payment for the 5/30/02 psychiatric evaluation on that basis.

2. Neurological testing

Defendant offered the testimony of its expert witness, Dr. Gastaldi, a chiropractor. He testified that the electrodiagnostic testing performed by plaintiff would not have served to substantiate the doctor’s findings from the initial physical examination of the patient. Dr. Gastaldi testified that it is 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. Therefore, the doctor testified, the electrodiagnostic tests were medically unnecessary. [*4]

Plaintiff’s witness Dr. Schwartz, the patient’s treating doctor, rebutted the peer review doctor’s testimony with contrary evidence of generally accepted practice with regard to the use of electrodiagnostic testing. He testified that EMG/NCV and SSEP testing may be utilized even if there is no “diagnostic dilemma.” The plaintiff’s doctor testified that, according to generally accepted medical practice, this testing does not only confirm a doctor’s suspicions of possible nerve damage, but may also assist in localizing the nerve injury.

Contradictory positions have been raised by the testifying witnesses supported by their own testimony of generally accepted medical practice. If the plaintiff medical provider offers evidence that its medical services were consistent with generally accepted medical practice, the defendant insurer may fail to sustain its burden of proof at trial. (Nir v. Allstate Ins. Co., ___ NY2d___, 2005 WL 562739 [Civ Ct, Kings County 2005]; see also Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [Civ Ct 2003].) Plaintiff has offered convincing evidence that the electrodiagnostic testing in this case was utilized to confirm diagnostic suspicions and localize nerve injury. In the face of such evidence, “[I]t is not for a judge to second-guess a doctor who decides that a medical test is necessary for his diagnosis and treatment.” (Alliance Medical Office, P.C. v. Allstate Ins. Co., 196 Misc 2d 268, 2003 NY Slip Op 23633 [Civ Ct, Kings County 2003]; see also Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 2004 NY Slip Op 24034 [Civ Ct, Kings County 2004].) Defendant’s witness Dr. Gastaldi testified that certain testing listed on plaintiff’s 8/13/02 bill was redundantly billed. Dr. Gastaldi testified that the motor nerve testing, already included in the 8/13/02 bill under one No-fault billing code category, was separately billed under another category, and therefore plaintiff’s bill charged $425.88 in excess. This testimony was not controverted by plaintiff. Plaintiff’s bill of 8/13/02 for $1,999.12 is reduced by $425.88.

Conclusion

Based on the evidence, the Court concludes that defendant did not sustain its burden of proof for the lack of medical necessity of psychotherapy sessions and neurological testing provided to the patient, except for neurological testing redundantly billed on 8/13/02. Plaintiff’s total claim in the amount of $4,187.03 is therefore reduced by $425.88.

Judgment should be entered for the plaintiff in the amount of $3,761.15, plus interest and attorneys’ fees as provided by the Insurance Regulations, together with the statutory costs and disbursements of this action.

This constitutes the Decision and Order of this Court.

Dated: April 29, 2005_________________________

Milagros A. Matos, J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied the motion by plaintiff A.B. Medical Services PLLC for summary judgment.

Order insofar as appealed from unanimously reversed without costs, motion for summary judgment granted in favor of A.B. Medical Services PLLC in the principal sum of $3,971.20 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Appeal as taken by plaintiffs Somun Acupuncture P.C., and Square Synagogue Transportation Inc. unanimously dismissed. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff A.B. Medical Services PLLC established a prima facie entitlement to summary judgment by proof that it submitted completed claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant failed to provide proof in admissible form to raise a triable issue of fact as to its defense of lack of medical necessity of the services rendered (A.B. Med. Servs. PLLC v NewYork Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the motion by A.B. Medical Servs. PLLC should have been granted in the sum of $3,971.20 and [*3]
the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (Praeger v Praeger,162 AD2d 671 [1990]).

We reach no other issue.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered April 13, 2004, as denied its motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical equipment furnished its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of the statutory claim forms (11 NYCRR 65-3.5 [a], [f]), setting forth the fact and amount 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]). We note that the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., [*2]2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]).

The burden thus shifted to defendant to create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Absent a tolling of the statutory time (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]), defendant’s conceded failure timely to pay or deny the claims within the prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]) precludes its defenses with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant sought to prove such tolling via alleged written requests for initial verification to plaintiff and three alleged follow-up verification requests which sought to examine each assignor under oath. (This court will not consider additional letters offered for the first time below in an attorney’s sur-reply affirmation [e.g. Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 (2001); 622 Bldg. Co. v Empire Blue Cross & Blue Shield, 283 AD2d 202 (2001)]).

The initial verification letter with respect to the Briones claim for $1,175 was untimely and did not toll the statutory claim determination period. Defendant is therefore subject to the preclusion sanction as to that claim and summary judgment should have been granted absent the assertion of a defense that survives preclusion. While the remaining initial verification requests (which do not address all the claims at issue), were nominally timely (11 NYCRR 65-3.5 [a]), as were the follow-up written examination under oath (EUO) requests, there is no documentary proof of mailing nor an admission of receipt, and defendant’s affiant, a claims examiner, asserted no personal knowledge of actual mailing or of facts creating a presumption of mailing (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, defendant failed to create triable issues of fact as to the assignors’ alleged failure to comply with the initial and follow-up verification requests (e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001] [affiant’s failure to assert personal knowledge of mailing and “his conclusory allegations regarding (the insurer’s) office practices did not establish . . . that the defendant followed office practices ‘geared so as to ensure the likelihood’ that (the communications at issue) were always properly addressed and mailed on the date issued”]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists] [same]).
Finally, it is noted that while verification EUOs are authorized by an amendment to the Insurance Regulations effective April 5, 2002 (11 NYCRR 65-1.1 [d]), because the Insurance Department “bases the revised regulations’ applicability on the policy endorsement in effect when the claim is filed, to take advantage of the . . . [revision], an insurer must have the revised prescribed endorsement in new or renewed policies issued on or after that date” (Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24498 [App Term, 2d & 11th Jud Dists];
S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). While plaintiff’s claims were submitted subsequent to April 5, 2002, defendant’s submissions failed to establish that the insurance policy, in effect when the EUOs were sought, contained an endorsement authorizing such verification (see Star Med. Servs. [*3]P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. As the EUO requests were the only form of follow-up verification alleged, defendant failed to toll the prescribed claim determination period, rendering all denials untimely and precluding its defenses on this additional ground as well.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter 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.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 4, 2004, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the principal sum of $1,999.12 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider sued to recover $1,972.08 for a test performed on August 20, 2001 and $1,999.12 for a test performed on August 27, 2001. Defendant timely denied both claims based on peer reviews.

Plaintiff moved for summary judgment as to both claims. With regard to the test performed by plaintiff on August 20, 2001, the affirmed peer reviewer’s uncontroverted statement submitted in opposition to the motion asserted, inter alia, that there were no interim notes between the time of the initial evaluation, one day after the accident, and the performance of the test. Accordingly, the peer reviewer’s conclusion that there has been no showing that said test was medically necessary raises a triable issue of fact as to its medical necessity. However, there was an evaluation before the second test was performed by plaintiff on August 27, 2001, the report of which was apparently provided by plaintiff to defendant but was not given to the peer reviewer by defendant. In his affirmed statement submitted in opposition to the motion, the peer reviewer recommended denial of the August 27, 2001 claim citing the same reason given in the [*2]prior peer review. Since there was such an evaluation prior to plaintiff administering the second test on August 27, 2001, the defendant’s basis for denial as set forth in the peer review lacks merit in fact and thus plaintiff’s motion for summary judgment as to this claim should be granted.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered October 28, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s 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 to recover $2,670.40 in assigned first-party no-fault benefits for medical treatment rendered its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted claims setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant’s conceded failure to pay or deny the claim within 30 days of receipt precluded defendant from interposing most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

The so-called “delay letter” cannot be deemed to toll the claim determination period since it sought no verification and, in any event, issued after the period for verification had expired [*2](defendant does not deny it received the claim on January 7, 2002 as proved by plaintiff’s postal delivery receipt) (id. at 94; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138[A], 2004 NY Slip Op 50557[U] [App Term, 2d & 11th Jud Dists]). This court has repeatedly held that a letter “which merely informs a claimant that a decision on the claim is delayed pending an investigation and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period” (A.B. Med. Servs. PLLC v Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d & 11th Jud Dists]; see e.g. Melbourne Med., P.C., 4 Misc 3d at 94).

We further note that, while examinations under oath (EUOs) are available to an insurer under the revised regulations (effective April 5, 2002) which provide for them pursuant to the verification protocols, they are authorized only as to claims filed after that date and pursuant to a revised mandatory endorsement contained in new or renewed policies issued on or after April 5, 2002 (e.g. S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Thus, under New York’s No-Fault Law, defendant’s EUO requests, which issued for claims filed before the revised regulations’ effective date (e.g. Capio Med., P.C. v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; S&M Supply Inc. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 128[A], 2004 NY Slip Op 51250[U] [App Term, 9th & 10th Jud Dists]) were ineffective to toll the claim determination period.

Defendant seeks to apply Massachusetts’ no-fault EUO provisions which, defendant urges, allow for EUOs under the facts herein and also provide that an insured’s failure to cooperate with such requests would void defendant’s obligation to pay no-fault benefits. Defendant also invokes Massachusetts law insofar as it provides that an insured’s fraudulent application for an insurance policy is a basis for retroactive cancellation of the policy, which cancellation would, under New York’s No-Fault Law, implicate coverage and constitute an exception to the preclusion rule. According to defendant, claimant, holding a Florida driver’s license and Massachusetts automobile registration, was issued a Massachusetts policy in the expectation that he would apply for a Massachusetts driver’s license within the time required by Massachusetts law. Defendant concedes that the insured failed to do so and that it did not act to terminate the policy or even investigate whether, as it now asserts, the insured at all relevant periods resided in New York and garaged the subject vehicle in New York. However, defendant’s claim of a fraudulent application is presented merely in the form of conclusory assertions of fact and unsubstantiated suspicions by an attorney who lacks personal knowledge of the facts and without any supporting documentation in admissible form sufficient to create a triable issue of fraud (id.; see also Matter of Liberty Mut. Ins. Co. v Guerrier, 307 AD2d 1033 [2003]). If defendant’s assertions of fact are true, that at the time of the accident, the insured was a New York domiciliary who garaged his automobile in New York, and defendant elected to issue the policy to a party licensed in Florida and to continue said policy notwithstanding the insured’s failure to obtain a Massachusetts driver’s license within the time required by Massachusetts [*3]
law, it should not be permitted to bypass New York’s bar to retroactive cancellations (Vehicle and Traffic Law § 313) merely because the insured was involved in a nominally covered accident (cf. Matter of Integon Ins. Co. v Garcia, 281 AD2d 480 [2001]).
Decision Date: April 29, 2005

—[*1]

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs, New York and Presbyterian Hospital, as assignee of Jorge Peralta, New York Hospital Medical Center of Queens, as assignee of Christopher O’Neill, Mary Immaculate Hospital, as assignee of Racheal Castro, and Nyack Hospital, as assignee of Lourdes Veras, appeal from so much of an order of the Supreme Court, Nassau County (Joseph, J.), entered August 5, 2004, as denied the branch of their motion which was for summary judgment on the first cause of action and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action.

Ordered that the appeal by the plaintiffs New York Hospital Medical Center of Queens, as assignee of Christopher O’Neill, Mary Immaculate Hospital, as assignee of Racheal Castro, and Nyack Hospital, as assignee of Lourdes Veras is dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment on the first cause of action is granted and that branch of the cross motion which was for summary judgment dismissing the first cause of action is denied; and it is further, [*2]

Ordered that one bill of costs is awarded to the plaintiff New York and Presbyterian Hospital, as assignee of Jorge Peralta.

The Supreme Court erred in granting the defendant summary judgment dismissing the first cause of action based upon the fact that the verification of the claim for no-fault medical payments (pursuant to a timely assertion of the claim and, in response, a timely request by the defendant for verification) was provided long after the 180-day period within which written proof of claim must be submitted (see 11 NYCRR 65.12), specifically, more than one year after original submission of the claim to the defendant. Despite this undisputed delay by the plaintiff New York and Presbyterian Hospital (hereinafter the hospital), the defendant, upon its receipt of the requested verification in June 2003, failed to either pay or deny the claim as required by 11 NYCRR 65.15 (g) (2) (iii). The defendant is precluded from asserting the defense of the hospital’s untimeliness in this action pursuant to Insurance Law § 5106 (a) (see New York & Presbyt. Hosp. v Empire Ins. Co., 286 AD2d 322 [2001]; Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210 [1994]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]; cf. Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454 [1996]). In reaching this conclusion, we observe that the defendant’s requests for verification, sent by mail on April 15, 2002, and May 20, 2002, did not demand or require a response within any identified number of days. Adams, J.P., Krausman, Rivera and Lifson, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered April 1, 2004, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant denied plaintiff’s claim more than two months after it received said claim. Contrary to defendant’s contention, however, its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations in effect at the time lacked a provision entitling an insurer to an examination under oath (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. Auto Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud [*2]Dists]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s claims representative 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]). Consequently, an issue of fact exists and the court below properly denied plaintiff’s motion for summary judgment.
Decision Date: April 22, 2005