[*1]

Civil Court of the City of New York, Queens County, August 22, 2008

APPEARANCES OF COUNSEL

Israel Israel & Purdy, LLP, Great Neck (Scott H. Fisher of counsel), for plaintiff. Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for defendant.

{**21 Misc 3d at 437} OPINION OF THE COURT

William A. Viscovich, J.

In this matter, which appears to be a case of first impression, plaintiff provider brought the within action to recover payment under no-fault for medical services, namely, electromyogram testing and nerve conduction velocity testing (hereafter EMG and NCV testing, respectively) performed for Vanessa Garcia, its assignor. At trial, the parties stipulated to the sufficiency of plaintiff’s prima facie case and agreed that the only issue for this court to determine is whether defendant could demonstrate that the tests were not medically necessary.

Defendant’s unique and novel argument, as presented to this court over the course of several days of testimony, is that while the tests as prescribed were, in fact, medically necessary, they were done in a manner so incomplete that the results were useless in terms of the diagnosis and treatment of the patient. As such, defendant argues that they are rendered medically unnecessary as a practical matter and therefore not eligible for reimbursement under the state’s no-fault statutes. Plaintiff counters with three points: first, that the tests were medically necessary; second, that the test results were in fact useful; and third, that the only issue for this court to decide is the medical necessity of the tests as prescribed, the issue of whether or not they were done correctly being irrelevant.

In the instant case, State Farm’s medical expert, Dr. James B. Sarno, determined that a complete bilateral EMG/NCV of the upper and lower extremities was, in fact, medically necessary for the treatment and care of the assignor, Vanessa Garcia, for injuries she sustained in the subject motor vehicle accident. However, Dr. Sarno further determined that the EMG/NCV study as actually administered was so incompletely performed as to be contrary to the accepted standard of care for administering said test when utilizing it to assess “electro-diagnostic evidence of radiculopathy,” thus rendering it medically unnecessary. According to Dr. Sarno, this was particularly so in light of Ms. Garcia’s injuries, the suspicion of radiculopathy in both the upper and lower extremities, her complaints of pain and her nonresponsiveness to a rehabilitation program. The doctor’s position is that the tests, as administered, would have no utilization in determining and evaluating her past and future treatment.

According to Dr. Sarno, the tests were rendered useless due to the plaintiff’s failure to test the muscles in the forearm (other{**21 Misc 3d at 438} than the brachioradialis) and in the hand. As such, plaintiff failed to properly study the C7, C8 and T1 nerve roots, a deviation from the accepted standard of care for administering said test when “assessing evidence of electro-diagnostic radiculopathy.” In fact, Dr. Sarno testified that the impression purportedly obtained from said tests, a bilateral C4 radiculopathy, could not have been obtained to any degree of medical certainty from the incomplete nature of the muscles tested and that it was a deviation from accepted medical protocol to have concluded same from the minimal number of muscles tested.

As for the lower extremity EMG, Dr. Sarno maintained that by failing to test the muscles in the extensor hallus longus, the peronei, the glutei, all muscles in the quadriceps and the paraspinal muscles, the plaintiff deviated from the accepted standard of care for administering said test when assessing evidence of electrodiagnostic radiculopathy. As such, it is defendant’s contention that the subject EMG/NCV studies were found normal in the lower extremities due only to plaintiff’s failure to test the requisite muscles. Had they been done correctly, Dr. Sarno maintains, Ms. Garcia’s diagnosis and treatment plan may have been properly furthered and she could have actually benefitted from her rehabilitation.

Testifying for the plaintiff, Dr. Finkelstein, in sum and substance, agreed with Dr. Sarno that the tests were medically necessary. The disagreement between the two testifying experts, however, lies in Dr. Finkelstein’s belief that the tests as performed were not incomplete and that they were useful for the diagnosis and treatment of the patient. His position was that while the testing may not have been “thorough” it was “not incomplete.” More specifically, Dr. Finkelstein maintained that the tests as done had the benefit of confirming radiculopathies at both the C3-4 and C5-6 levels of the spine and could have an impact on the patient’s treatment.

Both Dr. Sarno and Dr. Finkelstein acknowledge that EMG/NCVs are extremely uncomfortable and painful for the patient. It should be noted that Dr. Sarno maintains that a proper testing regimen in this case required the placing of needles in 48 muscles, while Dr. Finkelstein’s position was that, for this case, the placing of needles in 22 muscles was sufficient, particularly if the patient was having a difficult time dealing with the procedure.{**21 Misc 3d at 439}

Conclusions of Law

New York’s no-fault law mandates that services must be reasonable and necessary in order to be reimbursable, but neither statute nor case law specifically addresses the issue of what constitutes “medical necessity” in the context of no-fault litigation. Given that the legislature, the Appellate Terms and the Appellate Divisions of this state have, it seems, yet to establish a specific definition or set of guidelines upon which this court could rely, they must be derived from lower court decisions. In this context, the two most regularly cited cases appear to be two matters decided in Queens County Civil Court. The first, Medical Expertise v Trumbull Ins. Co. (196 Misc 2d 389 [2003]), was written by Judge Bernice Siegal, and the second, Fifth Ave. Pain Control Ctr. v Allstate Ins. Co. (196 Misc 2d 801 [Civ Ct, Queens County 2003]), was written by Judge Augustus C. Agate when he sat in this court.

In Medical Expertise (supra), Judge Siegal cited with approval a definition of medical necessity provided by the New Jersey Supreme Court, to wit:

“[A] necessary medical expense under the [No-Fault] Act is one incurred for a treatment, procedure, or service ordered by a qualified physician based on the physician’s objectively reasonable belief that it will further the patient’s diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value must be verified by credible and reliable evidence (Oceanside Med. Healthcare v Progressive Ins., 2002 NY Slip Op 50188[U], *5 [Civ Ct, Kings County, May 9, 2002], quoting Thermographic Diagnostics Inc. v Allstate Ins. Co., 125 NJ 491, 512, 593 A2d 768, 780 [1991].)

“It is not whether or not some ‘positive’ findings may be fashioned from the results of psychological tests, but rather could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances.” (196 Misc 2d at 395 [internal quotation marks omitted].)

In Fifth Ave. Pain Control Ctr., Judge Agate determined that medical necessity entailed

“treatment or services which are appropriate, suitable, proper and conducive to the end sought by the{**21 Misc 3d at 440} professional health service in consultation with the patient. It means more than merely convenient or useful treatment or services, but treatment or services that are reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluating and treating the patient.” (196 Misc 2d at 807.)

He went on to say that

“for 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 the 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.” (Id.)

Judge Agate went further, however, holding that in order to find that treatment or services are not medically necessary “it must be reasonably shown by medical evidence, in consideration of the patient’s condition, circumstances, and the best interest of the patient, that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” (Id. at 807-808 [emphasis added].)

While the defendant agrees that the testing as prescribed by the plaintiff provider herein was clearly medically necessary, as defined by both Judges Siegal and Agate, its defense of lack of medical necessity is seemingly based on a single word (ineffective) in Judge Agate’s opinion. Defendant argues that the test is inherently unnecessary due to a supposedly improper methodology used in conducting it. Plaintiff counters that, as conducted, the tests were medically necessary and done correctly and that even if they were done incorrectly or incompletely, such failures do not arise, at least in the context of no-fault litigation for provider payment, to the level of being medically unnecessary.

Defendant’s position seeks a retrospective determination of medical necessity but this court can find nothing in the precedents discussed or in the no-fault statute and related regulations that establish such a position. In fact, to the contrary, they seem to require a determination of medical necessity be made prospectively from the standpoint of the insured at the time a treatment or service is rendered, not at a time when its effectiveness or lack thereof can be established retrospectively.{**21 Misc 3d at 441}

This is particularly true when one considers that the expenses sought in no-fault litigation are in reality expenses incurred by the insured, not the provider. A medical provider does not “incur” expenses when it treats an insured. Rather, the provider accepts an assignment of the insured’s benefits, allowing it to step into the shoes of the insured for litigation purposes. In theory, if not reality, the insured, not the provider, is the one seeking reimbursement for expenses already incurred. As such, the no-fault statute was clearly intended to “deliver better protection for the insured and to pay off claims quickly (NY Legis Ann, 1973, p 298)” (Pavone v Aetna Cas. & Sur. Co., 91 Misc 2d 658, 663 [Sup Ct, Monroe County 1977]), and no-fault regulations have been interpreted in favor of the insured’s rights (and through an assignment of benefits, the rights of the provider), especially as they relate toward speedy payment of proper claims on behalf of the insured. (See Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

To adopt defendant’s position, quite frankly, would be to dramatically and judicially change the very nature of no-fault litigation. It would result in these proceedings all too often delving into issues more related to medical malpractice or professional misconduct litigation, a fact reflected by defendant’s brief, which cites as authority a matter decided before the State Board of Professional Medical Conduct (see Matter of Dobson, 2006 NY Phys Dec LEXIS 411 [2006]). The nature of such litigation would defeat the very purpose of the no-fault statute which is “to permit liberal recovery of moneys actually expended in the treatment of accident-related injuries.” (Vidra v Shoman, 59 AD2d 714, 716 [2d Dept 1977]; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [2d Dept 1996].) This is only reinforced by the Court of Appeals findings that the regulations “are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays.” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986].)

Nowhere in the statutory or regulatory scheme are “necessary expenses” defined to exclude charges for services that were duly prescribed, but improperly or inadequately performed. Insurance Law § 5102 (a) (1) defines “basic economic loss” as including, inter alia, “[a]ll necessary expenses incurred.” If either the legislature or the Superintendent of Insurance had intended that the determination regarding medical necessity should be made in hindsight, with regard for whether a procedure{**21 Misc 3d at 442} was properly performed, a statutory or regulatory change could be made to define necessary expenses as including payment for “properly performed medical procedures.” Neither has chosen to do so.

After a reading of the no-fault statutes and regulations, the precedents established by both Judge Siegal and Judge Agate and the testimony, evidence and briefs submitted in this matter, this court holds that even if defendant has demonstrated that a prescribed medical service or procedure may not have been conducted properly, reimbursement is warranted so long as said service or procedure was medically necessary. The issue of proper performance of such service or procedure is best left for other areas of litigation practice and/or, where appropriate, the State Board of Professional Medical Conduct.

The court further finds that the plaintiff in this matter, by stipulation of the parties, has established a prima facie case as to the medical necessity of the services rendered, thus shifting the burden of proof to the defendant to demonstrate, by a preponderance of the evidence, a lack of medical necessity for said services. Based on the testimony of the defendant’s own expert that the procedures in question, as prescribed, were, in fact, medically necessary and the rebuttal testimony of plaintiff’s expert explaining how the tests, as actually performed, could be of benefit to the patient, the defendant has failed to meet that burden.

Therefore, the court finds in favor of the plaintiff in the amount of $2,832.14, plus statutory interest, attorney fees and costs and disbursements.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 21, 2006, deemed in part from a judgment of said court entered February 1, 2007 (see CPLR 5501 [c]). The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment on its second cause of action. The judgment, entered pursuant to so much of the June 21, 2006 order as denied plaintiff’s cross motion for summary judgment on its first and third causes of action and granted defendant’s cross motion for summary judgment to the

extent of awarding defendant summary judgment on plaintiff’s first and third causes of action, dismissed plaintiff’s first and third causes of action.

Judgment affirmed without costs.

Order, insofar as appealed from, modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of granting plaintiff summary judgment on its second cause of action, and matter remanded to the court below for the calculation of statutory interest [*2]and attorney’s fees thereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to three assignors, defendant moved, pursuant to CPLR 603, to sever plaintiff’s causes of action, plaintiff cross-moved for summary judgment, and defendant cross-moved for summary judgment. The court below granted defendant’s severance motion, denied plaintiff’s cross motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of granting defendant partial summary judgment with respect to plaintiff’s first cause of action (regarding assignor Andree Sarjoo) and third cause of action (regarding assignor Romelle Archer). Plaintiff appeals, arguing that it was entitled to summary judgment upon its three causes of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a 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]). In addition, the affidavit submitted by a provider in support of its summary judgment motion must lay a sufficient foundation to establish that the annexed documents constitute evidence in admissible form (see e.g. Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s “PIP Litigation Representative,” in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment.

In opposition to plaintiff’s cross motion, and in support of its own cross motion, defendant asserted that, with respect to plaintiff’s claims for services rendered to Mr. Sarjoo (the first cause of action) and Mr. Archer (the third cause of action), it timely denied the claims in question on the ground that the services provided were not medically necessary based on affirmed peer review reports. Contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation, as neither peer review doctor stated in his peer review report that his determination was based on a lack of documentation. Instead, both reports set forth a factual basis and medical rationale for the doctors’ opinions that the MRIs billed for were not medically necessary. Accordingly, since plaintiff did not rebut the evidence in support of defendant’s cross motion upon these causes of action, the court below properly granted defendant’s cross motion with respect to plaintiff’s first and third causes of action (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to plaintiff’s remaining cause of action to recover upon the claim for services rendered to Sean-Anthony Cherry (the second cause of action), defendant denied the claim based upon Mr. Cherry’s alleged failure to appear at scheduled examinations before trial (EUOs). Since the affidavit submitted by defendant was insufficient to establish Mr. Cherry’s nonappearance at said EUOs, defendant failed to raise a triable issue of fact (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also Midisland Med., PLLC v New York [*3]Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51983[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, contrary to the determination of the court below, plaintiff was entitled to summary judgment with respect to its second cause of action.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
CROSSBRIDGE DIAGNOSTIC RADIOLOGY, P.C.
a/a/o ANDRE SARJOO, SEAN-ANTHONY CHERRY
and ROMELLE ARCHER,

Appellant, [*4]

-against-
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part, and votes to affirm the judgment, and the order insofar as appealed from, in the following memorandum:

I concur with the majority in its affirmance of the lower court’s denial of plaintiff’s cross motion for summary judgment as to the first and third causes of action and the granting of defendant’s cross motion for summary judgment as to the first and third causes of action, encompassing the dismissal of those causes of action. I dissent as regards the awarding of summary judgment to plaintiff with respect to the second cause of action.

With regard to the first and third causes of action, I agree with the majority’s finding that “contrary to plaintiff’s contention, the conclusions of the peer review reports were not the result of a lack of documentation.” I, nonetheless, disagree with the majority’s finding relating to the second cause of action regarding the sufficiency of notice to the assignor Mr. Sean-Anthony Cherry.

Defendant denied those claims upon the assertion that Mr. Cherry failed to appear at a scheduled examination before trial (EUO). The majority finds, and I agree, that the affidavit submitted by defendant was insufficient to establish, in admissible form, the fact that Mr. Cherry failed to appear at the EUO. Indeed, defendant’s affiant failed to specify how she obtained the information that Mr. Cherry had failed to appear. The majority then cites to the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]) in support of its conclusion granting judgment to plaintiff.

I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (id.).

In that case, although the Appellate Division, Second Department, nominally affirmed the majority ruling of the Appellate Term, the court specifically rejected the artificial distinction my colleagues created between “pre” and “post” claims. More importantly, the Appellate Division held that, “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis added]).

Inasmuch as the notices to appear for the EUO were sent directly to the assignor and, in addition, there is no affidavit from the assignor that he either appeared or that he did not receive such notice, the evidence of notice has not been rebutted (see A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire. Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, it is now incumbent upon plaintiff to establish, in admissible form, that the assignor complied with the condition precedent, that is the assignor’s submission to the EUO. [*5]

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability (see also Quality Health Prods., Inc. v Progressive Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op _____, No. 2007-148 Q C, decided herewith).

Accordingly, I would deny both cross motions for summary judgment relating to the second cause of action, as was done in Stephen Fogel Psychological, P.C..

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 12, 2007, deemed from a judgment of said court entered February 16, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 12, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,740.62.

Judgment reversed without costs, order entered January 12, 2007 vacated and plaintiff’s motion for summary judgment denied.

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

On appeal, defendant asserts that the affirmation of plaintiff’s officer, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. In opposition, plaintiff argues that it met its prima facie burden by demonstrating that a claim was submitted and that it was not timely paid and that, in any event, it submitted the affirmation of the treating doctor, who also signed the claim forms, rendering admission of the claim forms as business records unnecessary. [*2]

In Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), this court held that, absent a sufficient foundation to demonstrate that the plaintiff’s claim forms constituted evidence in admissible form as business records, the “plaintiff failed to tender proof in evidentiary form to establish its prima facie case” (id. at 47). This court further noted that any admissions by the defendant regarding receipt of the plaintiff’s claim forms “did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do” (id.; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]).

We find that the affirmation submitted by the treating doctor, plaintiff’s officer, was not sufficient to establish a foundation for plaintiff’s claim forms. Contrary to plaintiff’s contention, defendant did not waive its objection to the admissibility of plaintiff’s claim forms by failing to raise it below (Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent plaintiff argues that it is possible to circumvent the requirement that said claim forms be submitted in admissible form by submitting the affirmation of the treating doctor, we need not reach that issue. Plaintiff’s doctor failed to sufficiently set forth the pertinent facts relevant to the claims. In light of the foregoing, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Dan Med., P.C., 14 Misc 3d at 47). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and said motion is denied.

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

Steinhardt, J., dissents in a separate memorandum.

Steinhardt, J., dissents and votes to affirm the judgment in the following memorandum:

To prevail on a motion for summary judgment in a no-fault claim, the plaintiff has the burden to demonstrate that the no-fault claim forms were submitted to the defendant and that the payment to the plaintiff is overdue (see Insurance Law § 5106 [a]; Fair Price Med Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To meet this burden, the plaintiff is required to establish the admissibility of the no-fault claim forms by demonstrating that the forms are business records (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d and 11th Jud Dists 2006]). To qualify a document as a business record, three foundational requirements must be met: (1) that the document was made in the regular course of business; (2) that it is the regular course of business to make such documents or records; and (3) that the document or record was made at the time of the act or transaction or within a reasonable time thereafter (see CPLR 4518). [*3]

In the instant matter, Boris Kleyman, M.D., executed affirmations in support of plaintiff’s claims. In each, he stated “I am an officer of . . . Plaintiff . . . who treated the Assignor . . . and having reviewed the Assignor’s file, I am fully familiar with the facts and circumstances of this matter and make this affirmation based upon personal knowledge” (emphasis added). Plaintiff submitted additional affidavits in support of the motion, including one by Enrique Escala, the “Office Services Supervisor” for the attorneys who handle the processing of plaintiff’s no-fault claims. Said affidavit outlined the procedures employed by him with reference to the mailing of the documentation in question to defendant.

Contrary to the opinion expressed by my learned colleagues, I find that the documents submitted by plaintiff in support of the motion, taken in their totality, qualify as business records and that they clearly fulfill the requirements for admissibility as set forth in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (14 Misc 3d 44 [2006], supra). Plaintiff, therefore, in my opinion, met its burden and is entitled to the granting of summary judgment in its favor.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Order modified by providing that defendant’s cross motion to dismiss the complaint is denied; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), based upon a Virginia court’s order rescinding the subject insurance policy. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint. Plaintiff appeals.
An objection based on CPLR 3211 (a) (5) must be raised either by motion made before service of the responsive pleading is required or in the responsive pleading (see CPLR 3211 [e]). As defendant did neither, its post-answer cross motion to dismiss should have been denied. [*2]
Turning to plaintiff’s motion for summary judgment, we note that defendant raised no issue below or on appeal with respect to plaintiff’s establishment of its prima facie case, and we therefore do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant made the same collateral estoppel argument it proffered in support of its cross motion to dismiss. It submitted a petition commencing an action in a Virginia court seeking a declaratory judgment voiding the subject insurance policy on the ground that the insured made material misrepresentations on his application for insurance including, inter alia, that he resided in, and his car was to be garaged in, Virginia. Defendant further submitted an uncertified order of a Virginia court, dated April 4, 2005, which provided that the subject insurance policy was “rescinded, void ab initio, and of no effect.”
We note at the outset that defendant may not invoke the doctrine of collateral estoppel against plaintiff herein because plaintiff was not a party to the Virginia proceeding, which was commenced by defendant herein against its insured. Prior to the commencement of the Virginia proceeding, plaintiff was assigned the instant claims by two eligible injured persons, neither of whom are the named insured but both of whom were allegedly eligible for benefits under said policy. Plaintiff was therefore not “afforded a full and fair opportunity to contest” the Virginia order, nor was it in privity with one who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-487 [1979]). We find, however, that the submission of the aforementioned documents is sufficient to demonstrate a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant has raised a triable issue of fact as to whether there was coverage under the subject insurance policy (see Hernandez v City of New York, 35 AD3d 812, 813 [2006]; Matter of Eagle Ins. Co. v
Singletary, 279 AD2d 56 [2000]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90
NY2d 195 [1997], supra). Therefore, plaintiff’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
Respondent.
Golia, J., concurs in the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not [*3]the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 11, 2006. The order denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, 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 plaintiff’s claim for $694; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff’s $694 claim on the ground that the supplies provided were not
medically necessary based on an affirmed peer review report, and that it timely denied plaintiff’s $1,021 and $289 claims based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms since it described in detail the standard office practice and procedure [*2]used to ensure that the verification requests and denial of claim forms were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

While plaintiff argues that the affirmed peer review report submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the supplies provided were medically necessary, this contention is raised for the first time on appeal. In any event, it lacks merit because the affirmed peer review report set forth a factual basis and medical rationale for the determination that the supplies provided were not medically necessary, thereby raising a triable issue of fact as to plaintiff’s $694 claim (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Turning to plaintiff’s remaining claims ($1,021 and $289), while defendant asserted that it timely denied said claims based on the assignor’s failure to appear for
two scheduled IMEs, defendant failed to establish by proof in admissible form that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the claim for $694.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
QUALITY HEALTH PRODUCTS, P.C.
a/a/o MALIK BUNNCHE,

Appellant,

-against- [*3]
PROGRESSIVE INSURANCE COMPANY,

Respondent.

Golia, J., concurs in part and dissents in part and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum.

I concur with the majority as to its affirmance of the lower court’s denial of plaintiff’s summary judgment motion with respect to the $694 claim, which claim was denied based on a sufficient and timely peer review report.

I also concur with the majority in its finding that “[c]ontrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms….”

However, I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720 [2006]).

In that case, the Appellate Division, Second Department, while affirming the majority ruling of the Appellate Term, specifically rejected the distinction the Appellate Term created between “pre” and “post” claims. More importantly, the Appellate Division held that the “appearance of the insured for IMEs [independent medical examinations] at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1)” (Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis supplied]).

Inasmuch as my colleagues and I agree that the notices were sent, it is now incumbent upon plaintiff to establish compliance with the condition precedent, that is the assignor’s submission to an IME.

Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor’s nonappearance at the IME, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer’s liability.
Decision Date: August 19, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

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

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

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