Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50535(U))

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50535(U))

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))

Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co. (2008 NY Slip Op 50525(U))

Reported in New York Official Reports at Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co. (2008 NY Slip Op 50525(U))

Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))

Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))

Reported in New York Official Reports at Fortune Med., P.C. v New York Cent. Mut. Fire Ins. (2008 NY Slip Op 50522(U))

Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2008 NY Slip Op 50456(U))

Reported in New York Official Reports at Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2008 NY Slip Op 50456(U))

[*1] Decided on March 10, 2008

Andrew Carothers, M.D., P.C., a/a/o Raphael Martinez, Plaintiffs, against GEICO Indemnity Company, Defendant.

029706/06

Sylvia G. Ash, J.

Plaintiff brought this cause of action seeking recovery of first party no-fault benefits for medical services rendered to its assignors. There were five (5) assignors represented by Plaintiff. Defendant’s denial was based on lack of medical necessity as to all five assignors. At trial, the parties stipulated that all five cases would be tried together wherein Plaintiff would seek to establish its prima facie entitlement to payment and Defendant would seek to establish its timely denial of the claim.

To establish its prima facie case, Plaintiff called its Billing Manager, Paul Kumc-Jasinsk, as its first witness. Mr. Kumc-Jasinsk testified that he has been a Billing Manager since June, 2005. Mr. Kumc-Jasinsk provided detailed and explicit testimony as to his personal knowledge of Plaintiff’s routine office practice and procedures regarding the timely mailing of the bills and the fact that payment had not been received. Based on the Billing Manager’s testimony, the Court finds that Plaintiff has established its prima facie case.

Defendant’s Claims Examiner, Kathleen McClernon, also provided detailed and explicit testimony as to her personal knowledge of Defendant’s routine office practice and procedures regarding mailing of its denial of claim. Based on the Claims Examiner’s testimony, the Court finds that Defendant has established proof of timely denial of the claims in question.

The parties having established Plaintiff’s prima facie case and Defendant’s timely denial, the only issue before the court was whether the medical services provided were medically necessary. At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity (see Expo Medical Supplies , Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 N.Y.S. 2d 209 [Civ. Kings Co. 2006]; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 N.Y.S.2d 493 [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d [*2]1018(A), 801 N.Y.S. 2d 229 [Civ. Ct. Kings Co. 2005]).

A no-fault insurer defending a denial of first party benefits on the ground that the billed for services or equipment/supplies were not medically necessary must show that the services or supplies/equipment provided were inconsistent with generally accepted medical/professional practices. The opinion of the insurer’s expert, standing alone, is insufficient to carry the insurer’s burden of proving that the services or supplies/equipment were not medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem. Co. 3 Misc 3d 608 [Civ. Court Kings County 2004]; Ultimate Medical Supplies v. Lancer Insurance Co. 7 Misc 3d 1002(A)[Civil Court Kings County 2004]; Expo Medical Supplies, Inc. v. Clarendon Insurance Company 12 Misc 3d 1154 (A), 819 N.Y.S.2d 209, 2006 WL 1341418). At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity (see Expo medical Supplies, Inc. v. Clarendon Insurance Company supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 2008 WL 518022 (N.Y.City Civ.Ct.), 2008 NY Slip Op. 50368(U)).

To sustain its burden of proof, the Defendant sought to lay the foundation for the admissibility of the original peer review report and medical records received by Defendant. These records were relied upon by Defendant’s medical expert in forming the conclusion that the services rendered were not medical necessary. Defendant sought to introduce the records and peer review report into evidence through its Claims Examiner as Defendant’s business records. Plaintiff objected to their admission into evidence arguing that the Claims Examiner was incompetent to testify as to the reliability of the records as she testified that the records were received by Defendant from the treating physicians and she had no knowledge of how these doctors created or maintained their records in the regular course of business. Defendant argues that the documents relied upon by its medical expert were the MRI reports of the claimants which accompanied the Plaintiff’s bills and the various medical reports of the claimants considered by the Regulations as a Proof of Claim.

The subject records were prepared by Plaintiff’s own principal(s) who treated the claimants and conducted the tests in questions. In these circumstances, Plaintiff may not be heard to argue that the Defendant’s expert opinion was not derived from a professional reliable source or to otherwise challenge the reliability of its own medical records and reports which were used as proof of its claim. Moreover, Defendant’s expert, in forming his opinion, relied upon the records only to the extent that they documented the claimants’ injuries, Plaintiff’s diagnosis and the treatment rendered (see Cross Continental Medical, P.C. v. Allstate Insurance Company, 13 Misc 3d 10, 822 N.Y.S. 2d 356, 2006 NY Slip Op. 26322; Home Care Ortho Medical Supply, Inc. v. American Mfrs. Mut. Ins. Co., 14 Misc 3d 139(A), 836 N.Y.S. 2d 499, 2007 WL 581912 (NY Sup. App. Term) 2007 N.Y.Slip Op 50302(U)). Based on the above, the Court rejects the Defendant’s argument and finds that the medical records and peer review reports are admissible and are accepted into evidence.

The Defendant must now establish a factual basis and medical rationale for its claim of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 N.Y.S. 2d 857 [Civ. Ct. Kings Co. 2005]). Defendant’s medical expert Dr. Andrew Bazos testified that he reviewed the [*3]medical records and reports of all five claimants and that he had sufficient information to render an opinion as to whether the services rendered were medically necessary. Dr. Bazos testified that based on the type of injuries, (all soft tissue) and the time frames involved in the testings, (less than one month after the accident) the MRIs as to all five claimants were unnecessary and inconsistent with accepted medical standards and practice. Dr. Bazos further testified that where there is soft tissue injuries, time is a factor in ordering MRIs; that 99% of patients with soft tissue injuries usually heal with physical therapy within six weeks to six months after an accident and that there should be a minimum of three months of physical therapy before ordering MRI tests. Dr. Bazos asserted that a course of conservative treatment of anti-inflammatories and physical therapy would have resulted in a favorable outcome for each of the five claimants herein. Accordingly, the Court finds that Dr. Bozos testimony was sufficient to demonstrate a medical rationale and factual basis for his claim of lack of medical necessity.

Once Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to the Plaintiff to present its own evidence of medical necessity (see Prince, Richardson on Evidence §3-104, §3-202 [Farrell 11th ed]; West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co. (see 13 Misc 3d 131(A), 824 N.Y.S. 2d 759[2006]) In the case at bar, Plaintiff did not call any witnesses but relied upon its cross examination of Dr. Bozos to defend its claim of medically necessity. The Court finds that Plaintiff has failed to refute Defendant’s expert witness testimony and has failed to produce rebuttal evidence to prove medical necessity for the services rendered.

Accordingly, judgment is hereby rendered for Defendant. Plaintiff’s summons and complaint are dismissed.

Defendant shall serve a copy of this Decision and Order with Notice of Entry upon the appropriate clerk and the Plaintiff within 20 days hereof.

This constitutes the Decision and Order of the Court.

Dated: March 10, 2008

___________________________________

SYLVIA G. ASH, J.C.C.NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))

Reported in New York Official Reports at NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))

[*1] Decided on March 10, 2008


PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-65 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 1, 2006, deemed from a judgment entered January 8, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 1, 2006 order which, inter alia, granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,149.20.

Judgment reversed without costs, so much of the order entered December 1, 2006 as granted plaintiff’s cross motion for summary judgment vacated and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court granted plaintiff’s cross motion, finding that the affidavit by defendant’s no-fault specialist did not establish that defendant’s denial of claim form was timely mailed because it was executed in Connecticut and defendant did not annex a certificate of conformity as required by CPLR 2309 (c). This appeal by defendant ensued in which defendant only seeks review of so much of the order as granted plaintiff’s cross motion for summary judgment.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

Although the affidavit of defendant’s no-fault specialist was notarized by a Connecticut notary public and was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1), the court should have disregarded such a defect in form since plaintiff did not object to the omission (see Matter of MBNA Am. Bank v Stehly, ___ Misc 3d ___, 2008 NY Slip Op 28010 [App Term, 2d & 11th Jud Dists 2008]). Moreover, [*2]plaintiff conceded that defendant’s denial of claim form was timely.

Plaintiff asserts that it was entitled to summary judgment because the defense of lack of medical necessity was precluded as the denial of claim form, based upon an independent medical examination, was defective since it did not set forth the medical rationale for the denial. Such a claim lacks merit (see New York Univ. Hosp. Rusk Inst. v Govt. Empl. Ins. Co., 39 AD3d 832 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs. v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]). Consequently, since plaintiff conceded that the parties’ conflicting affirmations regarding medical necessity raised an issue of fact, plaintiff’s cross motion for summary judgment should have been denied.

In light of the foregoing, we do not pass upon defendant’s remaining contention.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2008Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))

Reported in New York Official Reports at Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))

NY First Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 50750(U))

Reported in New York Official Reports at NY First Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 50750(U))

[*1] Decided on March 6, 2008

NY First Acupuncture, P.C. a/a/o Mitchell Cudjoe, Plaintiff, against General Assurance Company, Defendant.

127007 QCV2003



Attorneys for plaintiff: Law Office of Eva Gaspari, PLLC

2801 Emmons Avenue

Brooklyn, NY 11235

( By: Eva Gaspari, Esq.)

Attorneys for defendant :Bee, Ready, Fishbein, Hatter & Donovan, LLP

170 Old Country Road, Ste. 200Mineola, NY 11501

( By: Michael Krall, Esq.)

William A. Viscovich, J.

Plaintiff provider brought the within action to recover payment under no-fault for acupuncture services performed for Mitchell Cudjoe , as its assignor.

At the January 30, 2008 trial, neither plaintiff nor defendant insurer called any witnesses. Rather plaintiff sought to introduce evidence supporting its case solely through a notice to admit pursuant to Section 3123(a) of the CPLR. The notice to admit sought admissions as to various statements contained therein, including acknowledgment by the defendant as to its receipt of the relevant claim forms and bills, and defendant’s denial of or failure to pay same. It also sought admissions as to the genuineness of the various documents annexed thereto as well as the contents thereof, to wit, the assignment of benefits to plaintiff, the bills and the NF3 proofs of claim for acupuncture services rendered, the medical necessity of which is the issue at trial.

The defendant did not deny any of the items contained in the notice. Instead, it served a “Response to Notice To Admit”, which objected to each of the requests contained in the notice to admit as “being palpably improper, as it demands Defendant concede many maters that are in [*2]dispute or clearly denied, and seeks admission of contested ultimate issues, rather than clear cut matters

of fact.” This response is insufficient given that the proper method for challenging a notice to admit is to seek a protective order pursuant to CPLR 3123. Nader v. General Motors Corp., 53 Misc 2d 515 (Sup. Ct., NY County) aff’d 29 AD2d 632 (1st Dep’t. 1967), Epstein v. Consolidated Edison Co., 31 AD2d 746, (2nd Dep’t 1969).

As such, Plaintiff argues that the statute requires that the statements and documents contained in its notice should be deemed admitted, thus establishing its prima facie case for entitlement to no-fault payments. Defendant also presented no witnesses but objected to the use of the notice, asserting that the admissions sought therein by plaintiff are improper subjects of a notice in a trial for no fault benefits. Both sides rested with the court reserving decision and requesting counsel for both plaintiff and defendant to submit memoranda of law on this issue by February 8, 2008.

The issues presented for this court’s determination are twofold: Should plaintiff’s notice to admit and/or the statements and documentary items contained therein be admitted into evidence? If so, are the factual allegations therein deemed admissions by the defendant upon its failure to properly challenge the same, sufficient to establish plaintiff’s prima facie entitlement to no-fault benefits?

Notices to admit are provided for in CPLR § 3123(a) which provides, in pertinent part, that ” a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents *** described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertainable by him upon reasonable inquiry***”. It is well-settled that a notice to admit is ” a vehicle for resolving and eliminating from contention matters which, though factually relevant, are not really in dispute*** [ but not] to seek admissions of material issues or ultimate or conclusory facts” ( Villa v. New York City Housing Authority, 107 AD 2nd 619, 620 [1st Dept. 1985]; see Taylor -v- Blair, 116 AD 2nd 204 [ 1st Dept. 1986 ]; Marine Midland Bank -v- Custer , 97 AD 2nd 974 [ 4th Dept. 1983 – aff’d 62 NY 2nd 732] – re: the genuineness of defendant’s signature ). See also Risucci -v- Homayoon , 122 AD 2nd 260 [ 2nd Dept. 1986 ] and Firmes -v- Chase Manhattan Automotive Finance Corp., 2008 NY Slip Op. 00449[ 2nd Dept 2008 ]. “The sole function of such a notice is to expedite the trial by eliminating from contention that which is public knowledge or easily provable and which the party reasonably believes is not in dispute” (Taylor, supra at 207).

Defendant primarily relies on the recent Appellate Term decision in Bajaj v. General Assurance , 18 Misc 3rd 25 [ App. Term, 2nd & 11th Dists. 2007]. There, in reversing the trial court’s decision awarding judgment to a no-fault provider based upon items contained in a notice to admit served on the defendant, the Court determined that, although the admissions sought by plaintiff were proper and the genuineness of the denial was deemed admitted, there was no concession as to the admissibility of plaintiff’s claim form as a business record under CPLR § 4518 ” so as to constitute proof” of the contents therein, such as dates of service, the [*3]services rendered and the charges for such services. The Court then went further, holding that even if defendant had deemed admitted the genuineness of the claim form- it still ” remained plaintiff’s burden to proffer evidence in admissible form*** to lay a foundation for the admissibility of the claim form as a business record***” (Bajaj, at 28).

Also supportive of defendant’s position is the holding in PDG Psychological -v- State Farm, 12 Misc 3rd 1183(A) [ Civil Court, City of New York, Kings Co 2006]), wherein it was held that a provider’s notice to admit, to which bills, denial of claim forms and assignment of benefits were attached, was improper in that the admissions sought therein went ” to the heart” of the matter- that is, the prima facie entitlement to no-fault benefits. As such, the notice to admit was determined to be an inappropriate mechanism for the admission of those facts.

Taking strong and, in this court’s opinion, understandable issue with the above decision is Seaside Medical, PC v. General Assurance Co.,16 Misc 3rd 758 (District Court of Suffolk CO., 1st Dist. 2007), wherein the court opined that based on the logic in the PDG decision, ” no issues whatsoever could ever be the subject of a notice to admit” in a no-fault case (Seaside, at 763). That court went on to find that since none of the eight items in the notice to admit at issue therein (e.g., receipt of claims forms, payment of bills) individually rose to the “heart of the matter”, its use was proper, notwithstanding that collectively they could be dispositive of the action.

Also worthy of serious consideration in this matter are the public policy arguments in favor of allowing the use of a notice to admit to prove a plaintiff’s case as discussed by Civil Court Judge Thomas D. Raffaele in NY First Acupuncture , P.C.,, as assignee of Carline Dowdy v. General Assurance Company (Unpublished Opinion, Queens County Civil Court No. CV-096709-03). In that matter, Judge Raffaele reluctantly follows the ruling in Bajaj, but then goes on to point out how that rule actually works to protract, rather than to expedite, the overall goals of New York’s no-fault system, which are, in sum and substance, to expedite prompt compensation of basic economic losses without regard to fault or negligence, Montgomery v. Daniles, 38 NY2d 41, 1975), Overly v. Bangs Ambulance, Inc., 96 NY2d 295, (2001), to “ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists.” Citywide Social Work & PSY Serv PLLC v. Travelers Indemnity Co., New York Law Journal Volume 235, (3/31/06), citing Medical Society of the State Of New York v. Serio, 100 NY2d 854 (2003); Walton v. Lumbermens Mutual Casualty Co., 88 NY2d 211 (1996). It is well established that “no- fault reform was enacted to provide prompt uncontested, first- party insurance benefits.” Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274(1997), at 285. The ruling in Bajaj is simply inconsistent with these policy concerns as its implementation simply extends trial time and expense.

Conclusion of Law

Based on the above case law, the court initially finds that the plaintiff’s notice to admit was proper in accordance with CPLR § 3123 and that defendant’s objection to its admission into [*4]evidence at trial is overruled.

As to whether the notice to admit, together with the allegations

contained therein are sufficient to establish plaintiff’s prima facie case, this court is disposed to follow the decision and rational of the Seaside decision. That decision, however, was rendered by a lower court, while Bajaj was decided by the Appellate Term. Furthermore, there is no appellate decision in the Second Department regarding notices to admit in no-fault cases which hold contrary to Bajaj.While counsel for Plaintiff argues that “all four judicial departments have held- and the Court of Appeals has affirmed – a Notice to Admit may be used to establish plaintiff’s prima facie case.” (See Use of Notice to Admit in No-Fault Insurance

Litigation NYLJ, August 6, 2007), the cases cited therein (Villa, supra; Risucci, supra; Kowalski v. Knox, 293 AD2d 892 (3rd Dept.

2002); Marine Midland Bank, supra) only seem to hint at such a possibility rather than specifically establishing a precedent which this court could follow.

The court also takes notice that counsel for plaintiff, on page 3 of her

Memorandum of Law, states that ” the Appellate Term (referring to its decision in Bajaj) simply cannot undo the effect of a statutorily created device that dispenses with the need to produce evidence. While this court may agree with that assertion, it is similarly constrained to act. It is not the place of this court to simply undo and overrule precedents established by the Appellate Term of this Department. Consequently, the Bajaj decision is controlling and this court is compelled to follow it.

Therefore, pursuant to Bajaj, the court finds that plaintiff herein has failed

to set forth a prima facie case.

Accordingly, the court awards judgment to defendant and the complaint in this action is dismissed.

The foregoing constitutes the decision and order of this court.

______ March 6, 2008___________________________________________DateWilliam A. Viscovich

Judge, Civil CourtMani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))

Reported in New York Official Reports at Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))