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 (R. Garson, J.), entered June 10, 2003, which granted defendant’s motion to vacate an order granting plaintiff’s motion for summary judgment on default and which restored the matter to the motion calendar for a determination of plaintiff’s underlying motion on the merits.

Order unanimously reversed without costs, defendant’s motion to vacate the order granting plaintiff’s motion for summary judgment denied, and judgment reinstated.

In this action to recover assigned first-party no-fault benefits, after the court awarded plaintiff summary judgment upon defendant’s default, defendant was obligated to establish both a reasonable excuse for its default and a meritorious defense (CPLR 5015 [a] [1]; Parker v City of New York, 272 AD2d 310 [2000]). The insurer’s only defense, that each assignor failed to appear for a scheduled independent medical examination (IME), is without merit and the motion to vacate should have been denied.

Within days of each assignor’s failure to appear for an IME scheduled subsequent to defendant’s receipt of plaintiff’s proofs of claim, defendant denied the assignee’s claims. However, an assignor’s failure to attend a single requested IME does not afford an insurer a valid basis to deny a no-fault claim where the insurer failed to exhaust the follow-up verification [*2]protocols, which required, inter alia, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested [with a new request]” (11 NYCRR 65.15 [e] [2] [now 15 days,11 NYCRR 65-3.5 (b)]; S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists] [defendant’s rejection of the claim, “before plaintiff’s time to produce the verification had expired, on the ground that it had not received same” was premature and ineffective]; see also 11 NYCRR 65.15 [g] [2] [iii] [“an insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . .”]; New York Hosp. Med. Ctr. of Queens v County-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996]; Glassman D.C., P.C. v State Farm Mut. Auto. Ins. Co., 192 Misc 2d 264, 265 [App Term, 2d & 11th Jud Dists 2002]). As the denials otherwise interposed no substantive defense to the action, and its time to pay or deny the claims having expired (Insurance Law § 5106 [a]), defendant is precluded from interposing defenses with exceptions herein inapplicable (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 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]). Accordingly, defendant’s motion should have been denied on the ground that it has failed to establish a meritorious defense warranting the vacatur of the order granted on default.
Decision Date: December 08, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 8, 2004

APPEARANCES OF COUNSEL

June D. Reiter, Garden City, for appellant. Amos Weinberg, Great Neck, for respondent.

{**6 Misc 3d at 63} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignor by the submission of proof that the statutory claim forms had been mailed and received, and that defendant did not pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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]). In opposition to plaintiff’s motion for summary judgment, defendant has failed to raise a triable issue of fact.

Defendant’s denial of benefits form indicates that defendant received plaintiff’s claim on October 5, 2001, and that it did not deny the claim until December 19, 2001, which was beyond [*2]the statutorily prescribed 30-day period (see 11 NYCRR 65.15 [g] [3]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Although the 30-day statutory period may be extended by a verification request (11 NYCRR 65.15 [d] [1], [2]), there was no proof submitted in admissible form that the alleged verification requests were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists 2004]).

Despite the untimely denial of plaintiff’s claim, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident, which was the sole ground for defendant’s denial of no-fault benefits (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The affidavit of defendant’s claims representative, however, was insufficient 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 at 199). Moreover, the unsworn “Automotive Engineering Report,” attached thereto, did not constitute competent proof in admissible form (see Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists 2003]), and defendant failed to proffer {**6 Misc 3d at 64}an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). Accordingly, since defendant failed to raise any triable issue of fact, plaintiff’s motion for summary judgment was properly granted.

Golia, J., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum: Plaintiff (health care provider) moved for summary judgment and made out a prima facie showing of entitlement thereto upon alleging that it filed a claim for payment of no-fault benefits which was received by the carrier on October 5, 2001, and that a denial was not issued until December 19, 2001. Since the denial was well past the 30 days, the plaintiff asserts that any denial is ineffective pursuant to 11 NYCRR 65.15 (g) (3) (see also Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Plaintiff further asserted that although the 30-day period may be extended by a request for verification pursuant to 11 NYCRR 65.15 (d) (1) and (2), no such requests were made in the case at bar.

Although I am not in full agreement with those assertions, my dissent is grounded firmly in the findings of the Court of Appeals in the matter of Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and followed by Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

The Court of Appeals clearly and unequivocally stated that if the alleged injuries were not causally related to the accident, the strict 30-day time limit (11 NYCRR 65.15 [g] [3]) for filing a denial would not apply. That Court wisely reasoned that the no-fault regulations could not be used to mandate that an automobile insurance policy be used to pay for alleged injuries that did not arise from the automobile accident claimed.

It is evident to me that the defendant’s denial of the claim sufficiently raised that issue. Furthermore, contrary to the holding of the majority, I find that the papers submitted in opposition to the plaintiff’s motion for summary judgment were also sufficient to raise that issue of fact.

The instant case involves a minor accident between a large chartered bus in which the respondent was a passenger and a 1999 Ford Taurus, a mid-sized passenger automobile. Indeed the only damage to the bus was a one-inch crack in the front bumper which did not even warrant any repair. The passenger car suffered a shattered rear windshield and a buckled rear tailgate. {**6 Misc 3d at 65}There has been no reported injuries of any kind from the occupants of the passenger car. The tour guide on the bus stated that all the occupants of the bus fully participated in the recreational events of the day. Indeed the police report did not note any injuries by any occupants of either the bus or the passenger car. The insurance carrier engaged the services of an automotive engineering expert who investigated the accident and determined that the plaintiff could not have suffered the injuries complained of.

Under all the facts and circumstances, it is abundantly clear that there is an issue of fact as to whether the injuries alleged resulted from the accident claimed.

In support of their opinion the majority relies solely on the fact that the “Automotive Engineering Report” was unsworn and therefore did not constitute competent proof in admissible form. The majority argues that the failure to submit a sworn affidavit or a valid reason for failing to do so is fatal to this position.

However, I find that such unsworn report is sufficient for the purpose of raising a triable issue of fact. There is a long line of cases from the Court of Appeals and lower courts that [*3]support the proposition, that for the purpose of defending a summary judgment motion, statements that may be subject to objections should not be precluded from consideration by the court if they are otherwise relevant and competent (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Narvaez v NYRAC, 290 AD2d 400 [2002]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641 [1998]; Guzman v Strab Constr. Corp., 228 AD2d 645 [1996]).

This is especially true, as it is here, where the witness who prepared the unsworn “Automotive Engineering Report” is presumably available to testify (Levbarg v City of New York, 282 AD2d 239, 241 [2001]).

Accordingly, I would reverse the holding of the lower court and would deny the plaintiff’s motion for summary judgment.

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

[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Samuel K. Rubin, Bethpage, for respondent.

{**6 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

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 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 the statutory claim form 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 2003]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

In opposition to plaintiff’s motion, defendant failed to raise triable issues of fact. Defendant denied plaintiff’s claim on the ground that plaintiff’s assignor failed to appear for examinations under oath (EUOs). The revised insurance regulations, which took effect on April [*2]5, 2002, include EUOs in the mandatory personal injury protection endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). It is uncontroverted that plaintiff’s claim was submitted subsequent to April 5, 2002. However, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th & 10th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S & M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2004]). Accordingly, plaintiff’s failure to appear for EUOs cannot constitute a basis for denial of the claim.{**6 Misc 3d at 58}

Therefore, plaintiff’s motion for summary judgment should have been granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Civil Court, Kings County

58916/04

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first party no-fault benefits for medical services rendered, pursuant to CPLR 5102(a)(1) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.).

Defendant moves for an order granting disqualification of the plaintiff’s law firm, Israel, Israel & Purdy, LLP, and/or for a hearing relating to the law firm’s representation of the plaintiff.

Plaintiff cross-moves for an order denying defendant’s motion and awarding plaintiff attorneys’ fees and sanction for defendant’s filing of a frivolous motion.

Defendant moves for the disqualification of plaintiff’s attorneys on the grounds that the law firm has established a joint business venture with various no-fault medical providers, and in violation of the Code of Professional Responsibility, DR5-102, codifies as 22 NYCRR Section 102. Defendant alleges that the plaintiff’s law firm has taken over all billing functions for said medical providers, prepares correspondence, submits no-fault bills and responds to demands for verification on behalf of said medical providers. Defendant also argues that as a result of the law firm’s role in taking over all billing functions for the medical providers, the firm would be required to testify and substantiate that the law firm itself maintains the medical provider’s records; that the payment for such bills has been demanded by the law firm; that no further request for verification information has been received by the law firm; and that no denial or payment has been made within the statutory period.

The defendant further argues that it is impermissible for the law firm to become a witness and an advocate in the same proceeding. In support of its argument, defendant cites the Code of Professional Responsibility, DR 5-102, codified as 22 NYCRR Section 1200.2.

In opposition to defendant’s motion, plaintiff argues that there is no violation of the statute, court rule or decisional authority, but only a perceived violation of DR5-102. Plaintiff also argues that disqualification may be required only when it is likely that the testimony to be given by the witness is necessary, and that the testimony would harm the plaintiff. Plaintiff further argues that the defendant has failed to allege that the testimony of any lawyer in plaintiff’s attorneys’ law firm would be prejudicial to its client. Plaintiff’s attorney also states that trial counsel will not appear as a witness, and that if necessary there are other attorneys at the firm that can be called as a witness.

After careful review of the moving papers, cross-motion and supporting documents, the court finds that the defendant’s motion is without merit. There is no basis for disqualification of the plaintiff’s law firm. The defendant has not demonstrated a violation of the Code of Professional Responsibility DR5-102. There has been no showing that the trial attorney would be called as a necessary witness in this action, or that such testimony would be adverse. In any event, the law firm may still continue to represent its client when one of its attorneys may be called as a witness. See, Talvy v. American Red Cross in Greater New York, 205 AD2d 143, 618 N.Y.S.2d 25 [1st Dept., 1994]. If there are other attorneys that can act as advocates for the client, then disqualification of the law firm as a whole would not be warranted.

Next, as a result of having to defend the motions for disqualifications, plaintiff’s attorneys have moved for an order imposing sanctions against defendant’s attorneys in the amount of $500.00, as well as ordering the defendant to pay an appropriate sum to the Clients’ Security Fund, as punishment for the filing of a frivolous motion. The court takes judicial notice

of the fact that the defendant law firm has made identical motions in other counties, as well as this county, and has not prevailed on its arguments that the plaintiff’s law firm should be [*2]disqualified. In fact, there has been a recent ruling in this County, by the Hon. Manuel Mendez on the exact same issue in NYC Medical & Neurodiagnostic, P.C. v. Republic Western Ins. Co., N.Y.L.J., 11/26/04, p.22, c. 3. Judge Mendez found no basis to disqualify the plaintiff’s law firm.

The court finds that imposition of sanctions is warranted on the basis that the motions, are redundant, abusive and frivolous. The motions were made in other counties and the courts’ decisions were in favor of the plaintiff’s law firm, holding that disqualification of the law firm was not warranted under DR5-102.

Accordingly, defendant’s motion is hereby denied in its entirety, and plaintiff’s cross-motion is hereby granted. The defendant is hereby directed to pay $500.00 to plaintiff’s counsel, as sanctions to deter such frivolous motion practice in the future.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: November 29, 2004

Brooklyn, New York 11201

______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, Bronx County, entered on or about January 13, 2004 (Irving Rosen, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered on or about January 13, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to the Civil Court for (1) the assessment of reasonable attorney’s fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $12,836.22, plus appropriate interest and attorney’s fees (see St. Clare’s Hospital v State Farm Mutual Automobile Insurance Co., 215 AD2d 641 [1995]).

Plaintiff seeks to recover first party no-fault insurance benefits for medical services rendered to its assignors who were injured in an automobile accident. Plaintiff made a prima facie showing that defendant failed to pay or deny the claims within 30 days after defendant received plaintiff’s demands (see Insurance Law § 5106 [a] and 11 NYCRR [*2]65.15[g][3]; Presbyterian Hospital in the City of New York v Maryland Casualty Company, 90 NY2d 274, 278 [1997]) and that payment of plaintiff’s claims was overdue. The sworn statement of plaintiff’s billing manager that the claim forms were mailed to defendant on the date each was signed ^[FN1] is uncontradicted on this record. Accordingly, plaintiff’s unopposed motion for summary judgment should have been granted (see CPLR 3212[b]).

This constitutes the decision and order of the court.
I concur.
I concur.
I concur.
Decision Date: November 24, 2004

Footnotes

Footnote 1: The record contains forms signed October 2, 2002, October 8, 2002, October 16, 2002 and November 6, 2002 for the claims with respect to Julio Cruz and September 30, 2002, October 8, 2002, October 29, 2002, November 6, 2002 and November 26, 2002 for the claims with respect to Steven Rosa.

[*1]

Civil Court of the City of New York, Richmond County, November 22, 2004

APPEARANCES OF COUNSEL

Joseph Sparacio, Staten Island, for plaintiff. Bruno Gerbino & Macchia, LLP, Melville, for defendant.

{**6 Misc 3d at 580} OPINION OF THE COURT

Judith R. McMahon, J.

The genesis of this first-party benefits action is a motor vehicle accident that occurred on March 8, 2003. The plaintiff’s assignor, Augusto Espinoza, was involved in this vehicular accident and as a result of his alleged injuries, sought medical treatment from Dr. Lev. Thereafter, Dr. Lev referred Mr. Espinoza to plaintiff, Dr. Hellander, for diagnostic testing, including a paraspinal ultrasound of the cervical paraspinal region, the thoracic paraspinal region, lumbar paraspinal region, and the trapezius muscles bilaterally. Dr. Hellander performed the requested diagnostic modalities on March 26, 2003 and sent a timely bill to Mr. Espinoza’s insurer, the defendant, pursuant to the No-Fault Insurance Law. (See, 11 NYCRR 65-3.11.) At the time of the testing, Mr. Espinoza signed a standard assignment of benefits form and a signature stamp containing Dr. Hellander’s name was affixed to the form.

After receipt of Dr. Hellander’s bill, State Farm Insurance Company issued a timely denial (NF-10). As a result of the denial, plaintiff instituted an action for payment of first-party benefits pursuant to the No-Fault Insurance Law. In its answer, State Farm alleged, inter alia, lack of standing on behalf of the plaintiff and lack of medical necessity of the diagnostic testing performed on March 26, 2003. After a filing of the notice of trial, a nonjury trial was held in this matter on September 20, 2004.

At the time of trial, plaintiff established a prima facie case by submitting into evidence the statutory forms of proof of claim, the amount of the claim and the defendant’s denial form (NF-10) which indicated proof of service upon defendant in a timely fashion. (See Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., 2001 NY Slip Op 40650[U] [2001].)

During the trial, plaintiff attempted to place the assignment of benefits into evidence. Defendant objected based upon the lack of authentication of the assignor’s signature. The burden of proving an affirmative defense of lack of standing should be on the defendant. In the case at [*2]bar, State Farm did not come forward with any evidence to challenge the effectiveness of the assignor’s signature. Merely, upon voir dire of Dr. Hellander, the defendant elicited that the procedure in the office of the plaintiff is that the assignment of benefits form is signed by the patient outside the presence of the doctor. The doctor’s signature stamp is then placed on the form. Further, the plaintiff testified that it was {**6 Misc 3d at 581}the customary procedure in his office that the technician or the technician’s office personnel be present at the time the assignor signs the assignment of benefits form. Therefore, following the holding in Elm Med., P.C. v American Home Assur. Co. (2003 NY Slip Op 51357[U] [2003]) and even assuming, arguendo, that the plaintiff must proffer a proper assignment of benefits, the testimony as to the custom and procedure of this physician’s office established the propriety of the assignment of benefits.

A signature without authentication adequately explained by the physician as being obtained in the ordinary and customary procedure in the office should be sufficient to defeat the claim of lack of standing. The authenticity of the signature, therefore, may be reasonably inferred since the patient signed the assignment of benefits form as part of the usual and customary procedure as detailed by the physician’s testimony and underwent the testing as described in the billing records. “Circumstantial evidence may satisfy the requirement that a writing be authenticated before it may be introduced.” (Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U], *7; see, Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238 [1983].)

Defendant’s second argument that the testing performed by plaintiff was medically unnecessary is novel since the claim is, not that the test was unnecessary for the complaints and symptomatology presented by the assignor, but, that the particular tests performed by plaintiff are without any clinical benefit in most instances. Specifically, defendant’s denial form (NF-10) states the following:

“According to the American College of Radiology, the American Institute of Ultrasound and Medicine and the American Chiropractic College of Radiology, the use of spinal ultrasound currently has no proven clinical utility as a screening diagnostic or adjunctive imaging tool for the evaluation of pain, fluid in the tissues, nerve disorders, or subtle abnormalities adjacent to the spine. Therefore, this procedure is denied. The named insured is not responsible for payment.”

At the trial, defendant called Dr. William Ross, an internist and gastroenterologist. Dr. Ross, in brief, testified on direct examination that based upon the opinion statement by the American College of Radiology in 1996 that spinal ultrasound has no clinical {**6 Misc 3d at 582}utility, he found the testing performed by plaintiff to be unnecessary. Upon cross-examination, Dr. Ross’ opinion became, at best, equivocal as is revealed in the following portions of testimony:

“Q. Doctor, do you agree or disagree with the following statement contained on page 573 of the 2003 Practice Guidelines, etcetera, which reads: ‘These guidelines are an educational tool designed to assist practitioners in providing appropriate radiologic care for patients,’ do you agree or disagree with that, doctor?

“A. I don’t see why I wouldn’t agree with that.

“Q. Do you agree or disagree with the statement on the same page that goes on to say, ‘they are not inflexible rules or requirements of practice and are not intended, nor should they be used, to establish a legal standard of care,’ do you agree or disagree with that from this book?

“A. Sounds very reasonable” (at 33, lines 1-15).

Dr. Hellander had testified that the tests he performed would, in his opinion, assist the referring physician in making a diagnosis and in formulating a treatment plan.

In the case at bar, plaintiff established a prima facie case by submitting the statutory forms of proof of claim and the amount of the loss. (See Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002].) Once plaintiff has established his case, the burden of proof shifts to the defendant on the claim of lack of medical necessity stated in defendant’s affirmative defense. In determining whether services are medically necessary the following analysis has been utilized:

“[F]or treatment or services to be medically necessary, it must be reasonably determined by the health care professional in consultation with the patient, that the treatment or services are consistent with the patient’s condition, circumstances and best interest of the patient with regard to the type of treatment or services rendered, the amount of treatment or services rendered, and the duration of the treatment or services rendered. To find treatment or services are not medically necessary, it must be reasonably shown by medical evidence, in consideration of the patient’s condition, circumstances, and best interest of the patient, that the treatment or services {**6 Misc 3d at 583}would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” (Fifth Ave. Pain Control Ctr. v Allstate Ins. Co., 196 Misc 2d 801, 807-808 [2003].)

Applying the aforementioned standard to the case at bar it becomes clear that defendant’s expert’s testimony is equivocal and does not meet the burden of proof necessary to establish that [*3]the testing done by plaintiff was not medically necessary. In the instant matter, we have here, not a specific symptom, not a specific disease, not a specific complaint that was addressed in a medically ineffective way, according to defendant; rather, according to defendant’s denial form (NF-10) the defendants have a blanket claim that the ultrasound of the paraspinal area is ineffective, regardless of complaint or symptomatology. This court is not willing to find a diagnostic tool utilized by physicians to be ineffective in all forms of complaints concerning the spine based on teetering testimony by defendant’s expert and guidelines instituted by the American College of Radiology which clearly establish that doctors are to use their own judgment in ordering different tests and that their conclusions are not binding upon any medical personnel. Furthermore, we have testimony by the physician, Dr. Hellander, stating that his test would be useful to the referring physician to form a proper prognosis and diagnosis of the patient.

Moreover, in reviewing the standard concerning medical necessity, it is quite clear that this is to be viewed on a patient-by-patient basis and that testing, whether medically necessary or not, should be based upon the symptomatology and complaints and disease entities of the patient/assignor involved.

This does not mean, of course, that this court would not find that a paraspinal ultrasound would not be medically necessary to a particular patient; however, it is not a court’s function based upon the testimony presented in this matter to rule a diagnostic modality ineffective for all spinal treatments when the College of Radiology is perplexed about the effectiveness or ineffectiveness of such. A broad stroke of the brush in such an instance would not be beneficial to the medical profession and, in particular, to the patients they treat. Accordingly, judgment is rendered for the plaintiff in the amount of $1,894.42.

—[*1]

In an action to recover no-fault medical payments, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated November 17, 2003, which granted the plaintiff’s motion for summary judgment on its first and second causes of action.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

In its first cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Adrian Leaf and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. In its second cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Noemi Gomez and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. The plaintiff asserts that the defendant is liable for the full amount of each claim on the ground that it failed to timely deny the claims.

With respect to the plaintiff’s first cause of action, the plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that it “submitted the requisite documents for payment, but [the defendant] neither paid nor denied the claims, nor requested verification within the requisite periods” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). In opposition thereto, the defendant demonstrated that there were issues of fact as to whether it [*2]partially exhausted the coverage limits of the policy by other “no-fault” payments and whether such payments were in compliance with 11 NYCRR 65.15 (n). The defendant’s failure to issue a denial of the claim within 30 days does not “preclude a defense that the coverage limits of the subject policy have been exhausted” (Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; see Presbyterian Hosp. of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]).

With respect to the plaintiff’s second cause of action to recover for services provided to Gomez, the defendant, in opposition to the plaintiff’s demonstration of its entitlement to summary judgment, submitted evidence that the disputed claim was the second of two successive claims for the same services, the first of which was properly denied. A failure to issue a timely written denial of the second of these two successive but identical claims would not warrant granting the plaintiff judgment as a matter of law (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

—[*1]In an action to recover unpaid no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 7, 2003, which denied his motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs payable to the plaintiff, and the complaint is reinstated.

There are issues of fact which precluded the granting of the defendant’s cross motion for summary judgment dismissing the complaint (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), including whether the plaintiff was intoxicated at the time of the accident within the meaning of the no-fault insurance law (see Insurance Law § 5103 [b] [2]; Vehicle and Traffic Law § 1192 [2], [3]), and whether his intoxication was a proximate cause of the accident (see Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]).

The plaintiff’s remaining contentions are without merit. Prudenti, P.J., Ritter, H. Miller and Spolzino, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered November 17, 2003, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs health care providers established a prima facie entitlement to summary judgment by proof that they submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in [*2]furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special 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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment was properly denied.

Plaintiffs’ remaining contentions lack merit.
Decision Date: November 19, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered on November 3, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover 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 the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day claim determination period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of plaintiff’s claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special 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 [*2]insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: November 19, 2004