[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2006

APPEARANCES OF COUNSEL

Cambio, Votto, Cassata & Gullo, LLP, Staten Island (Michael Gullo, Junmin Zou and Michelle Titone of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**14 Misc 3d at 45} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for a determination de novo of defendant’s cross motion.

In this action by a health care provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a “corporate officer” of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s “corporate officer” stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant opposed plaintiff’s motion and cross-moved to compel depositions of plaintiff, plaintiff’s assignor, and the assignor’s treating physicians. In opposition to plaintiff’s motion, defendant argued that the affidavit by plaintiff’s “corporate officer” was insufficient to establish personal knowledge of the facts set forth therein because the “corporate officer” did not demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices to lay a proper foundation to establish that the documents submitted by plaintiff were admissible pursuant to the business records exception to the hearsay rule (see CPLR 4518). Among other [*2]things, defendant submitted an affidavit executed by one of its special investigators, and a report prepared by said investigator, which set forth why the special investigator believed that the injuries allegedly sustained by plaintiff’s assignor were not causally related to a covered accident. The court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Upon this appeal, defendant argues, inter alia, that plaintiff did not demonstrate a prima facie case because it failed to lay a proper foundation for the admission of its documents and that plaintiff’s motion should be denied because there was an issue of fact as to whether the alleged injuries were the product of a staged accident. Defendant further asserts that its cross motion should have{**14 Misc 3d at 46} been granted because there is an issue of fact concerning the causation of the alleged injuries.

It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant’s opposing papers contained a timely objection asserting that plaintiff’s motion papers did not make a prima facie showing in admissible form due to plaintiff’s failure to demonstrate that the “corporate officer” possessed personal knowledge concerning plaintiff’s office practices with regard to the subject claim forms, this issue was not waived (cf. Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393 [2005]; Teig v First Unum Ins. Co., 282 AD2d 669 [2001]; Sam v Town of Rotterdam, 248 AD2d 850 [1998]).

The affidavit submitted by plaintiff’s “corporate officer” failed to demonstrate that he possessed sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte v Bellin, 137 AD2d 406, 408 [1988] [“In order to lay the foundation for the doctor’s business record, (the party seeking admission of the record) was required to call a witness with personal knowledge of the doctor’s business practices and procedures”]; Dayanim v Unis, 171 AD2d 579 [1991]; 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] [affirmation by an attorney who lacked personal knowledge was insufficient to lay a foundation for a determination that his clients’ documents were admissible as business records]).

A review of the record in Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (12 Misc 3d 147[A], 2006 NY Slip Op 51557[U] [App Term, 9th & 10th Jud Dists 2006]) reveals that the affidavit which plaintiff submitted in said case was similar to the affidavit in the instant case, in that both affidavits were executed by unspecified “corporate officers.” The Appellate Term for the Ninth and Tenth Judicial Districts stated, “the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms, mailing receipts, denials (indicating that defendant received the claims) and other documents to{**14 Misc 3d at 47} be considered by the court.” (Id. at *1.) However, the argument raised by the defendant in the court below in said case was that plaintiff failed to make a prima facie showing because plaintiff’s affiant did not demonstrate that he possessed personal knowledge of the facts set forth in such records. The Appellate Term for the Ninth and Tenth Judicial Districts rejected this argument. An affiant need only demonstrate that he or she possesses personal knowledge of the office practices such that the affiant can lay a sufficient foundation to establish that such documents are business records (see CPLR 4518; see generally William Conover, Inc. v Waldorf, 251 AD2d 727 [1998]; Matter of [*3]Brooke Louise H., 158 AD2d 425 [1990]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). Given the limited argument raised by defendant in said case, the Appellate Term for the Ninth and Tenth Judicial Districts was not called upon to rule upon the issue presented in this case, to wit, whether the affidavit by the “corporate officer” sufficiently set forth a foundation for the admissibility of the purported business records annexed to said affidavit. We hold that the instant affidavit is insufficient to lay a foundation for the admission of the annexed documents as business records (see CPLR 4518; Hefte, 137 AD2d at 408).

In light of the foregoing, plaintiff failed to tender sufficient proof in evidentiary form to establish its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [2006], supra; 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]). To the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions 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 (see Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [2006], supra). As a result, plaintiff’s motion for summary judgment should have been denied.

We note that, even if plaintiff had established a prima facie case, in the instant matter, plaintiff’s motion for summary judgment should, in any event, have been denied because defendant’s{**14 Misc 3d at 48} opposition to plaintiff’s motion for summary judgment demonstrated the existence of a triable issue of fact as to whether “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]).

Inasmuch as defendant’s cross motion to compel depositions was, in effect, denied as academic in light of the Civil Court’s conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the Civil Court for a determination de novo of defendant’s cross motion.

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

[*1]

Supreme Court, Appellate Term, Second Department, November 28, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

{**14 Misc 3d at 35} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment granted, defendant’s cross motion for summary judgment denied, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Plaintiff submitted, inter alia, defendant’s timely claim denial forms, which conceded receipt of the four claims and asserted only the lack of medical necessity for the services provided as the ground for the denials, citing in the first three denials a peer review report, and in the final denial, additionally, the report of an independent medical examination (IME). [*2]

It is well settled that “a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 10 [App Term, 2d & 11th Jud Dists 2006], quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). While defendant was not required to attach to its denial forms either the peer review report upon which the denials were purportedly based or the IME report cited in the final denial (see 11 NYCRR 65-3.8 [b] [4]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term,{**14 Misc 3d at 36} 2d & 11th Jud Dists 2005]), the lack of medical necessity defense is properly interposed when the claim denial form, and any other documentation submitted within the 30-day claim determination period, “set[s] forth with sufficient particularity the factual basis and medical rationale for [the] denial” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]). The denials herein were couched entirely in conclusory language and contained no facts to satisfy the NF-10 claim denial form’s requirement that the insurer state the reason for a denial “fully and explicitly” (see also 11 NYCRR 65-3.2 [e] [“Claim practice principles to be followed by all insurers . . . . (e) Clearly inform the applicant of the insurer’s position regarding any disputed matter”]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [“A proper denial of claim must include the information called for in the prescribed denial of claim form”]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004] [“A proper denial . . . must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ “], quoting General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]).

In our view, a claimant’s entitlement to a copy of a peer review report upon demand (11 NYCRR 65-3.8 [b] [4] [“If the specific reason for a denial of a no-fault claim . . . is a . . . peer review report requested by the insurer, the insurer shall release a copy . . . to the applicant . . . upon . . . written request”]) creates no exception to the requirement that the statutorily-mandated NF-10 form (which provides that the insurer must “attach extra sheets if needed”) state the ground for the denial with the “high degree of specificity” required by regulation and case law. We do not read the reference to a peer review report as the “specific reason” for a denial to mean that the bare recitation of reliance on such a report satisfies the requirement that a denial based on the lack of medical necessity, which this court has held on numerous occasions to require the assertion of facts and a medical rationale based thereon, is satisfied by the mere invocation of a peer review report as the basis of a denial. Rather, the regulation merely guarantees a claimant’s right to obtain a copy of the report upon written demand when its content is specifically alleged to justify a claim’s denial.

Finally, the sufficiency of either report to establish a triable issue of medical necessity need not be addressed as “even assuming said reports’ admissibility and that they set forth a sufficient{**14 Misc 3d at 37} factual basis and medical rationale for denial of the claims, they cannot remedy the factual insufficiency of defendant’s denials” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d at 32). Therefore, because defendant failed properly to interpose the medical necessity defense at the “claim stage” and failed to establish any defense that survived the preclusion sanction, defendant’s cross motion for summary judgment should have been denied and plaintiff’s motion for summary judgment granted. [*3]

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Golia, J.P. (concurring with the result only): I am constrained to agree with the disposition reached by the ultimate majority. However, I 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.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) in which I assert that a denial of claim predicated upon a peer review report is sufficient to comply with the regulations.

The plaintiff herein claims that it sent a written request to the defendant for a copy of the peer review report which, plaintiff insists, it never received, and that the defendant “ignored the request.” However, plaintiff failed to establish any proof regarding the mailing of such request, and absent such proof, this court should not consider the alleged failure of the defendant to provide a copy of the report. The Appellate Term has consistently rejected an insurer’s proof of its claim denial form upon a finding that defendant failed to proffer acceptable proof of mailing (e.g. PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists 2006]). I submit, the Appellate Term should likewise reject plaintiff’s papers upon plaintiff’s failure to proffer appropriate proof of mailing.

Notwithstanding, the defendant’s alleged failure to provide a copy of the peer review report is a nonissue. In point of fact, the regulations do not require the defendant to provide a copy of the report. They only require the defendant to pay or deny a{**14 Misc 3d at 38} claim within 30 days of receipt. Had the defendant sent such a denial after 30 days, or had it sent the denial within 30 days but failed to proffer sufficient proof of mailing, the majority, I submit, would have applied their former holdings and granted summary judgment to the plaintiff. In this case the majority concedes a timely denial and proper proof of mailing.

I would, however, prefer to find that the defendant complied with all the rules and regulations and met the clear language of 11 NYCRR 65-3.8 (b) (4) which provides,

“If the specific reason for a denial of a no-fault claim, or any element thereof, is a medical examination or peer review report requested by the insurer, the insurer shall release a copy of that report to the applicant for benefits, the applicant’s attorney, or the applicant’s treating physician, upon the written request of any of these parties” (emphasis added).

In order to substantiate their position, my colleagues claim that the language in the form promulgated by the Insurance Department provides that additional pages “must” be attached. The mere fact that the form allows for additional pages is not equivalent to a mandate requiring additional pages as needed, nor does it establish that the reason for a denial must be long winded and verbose.

In the present case, the plaintiff filed a claim for payment and the defendant thereupon submitted the claim file for an independent peer review. Upon receiving the peer review report, defendant sent out a timely denial predicated upon the peer review report containing the specific grounds of the denial.

This procedure is entirely within the terms and conditions of the regulations. If the plaintiff wished to learn the particulars of the report, it need only send a written request appropriately mailed, and defendant would be required to provide a copy of that report. Although plaintiff claims to have done so in this case, it failed to provide any proof of mailing. Consequently, the request should not be considered.

To hold as the majority does, in my opinion, would usurp the regulations which require the Department of Insurance to promulgate its own rules and regulations. It would require the defendant to produce the peer review report within 30 days of the claim despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff. This is a burden the regulations do not impose upon an insurer.{**14 Misc 3d at 39}

It is very clear to me that the regulations provide for a logical and reasonable procedure for the disposition of a claim, and that my colleagues’ analysis is strained. The majority acknowledges that the regulations do not require a defendant to annex a copy of the doctor’s independent medical examination (IME) report to the NF-10 denial of claim form which is predicated upon that report; however, they assert that the NF-10 form must include reasons for the denial with a “high degree of specificity.”

In order to comply with the mandates as set forth by the majority, a defendant insurance company must direct their claim examiners (many of whom are not medical doctors) to do the following: they must first read and understand the IME report which was written by a medical doctor, digest all the medically salient points, and then draft a denial of claim which lists all those salient medical points with a “high degree of specificity.” The other alternative is to simply send an NF-10 form with the notation “see attached IME report” as the reason for the denial and, of course, attach a copy of the report.

The problem with this analysis is that the first alternative is burdensome, inefficient and downright unnecessary, whereas the second alternative is clearly and specifically not required by the regulation.

A more reasonable analysis is to simply follow the requirements set forth by the regulation. The defendant insurance carrier receives a copy of an IME report which asserts that the medical treatments, or the medical examination, or the medical supplies provided, were not medically necessary for the medical reasons enumerated in the IME report. The carrier then sends an NF-10 denial of claim form which asserts that the claim is being denied for the specific reason that the IME doctor issued a report recommending denial. In the event the provider wishes to learn the precise medical reasons that led to that result, it need only send a written request, and a copy of the IME report will be sent to it free of charge.

Simple, reasonable and effective, and most importantly, the aforesaid procedure is in [*5]accordance with the regulations.

I would prefer to deny plaintiff’s motion for summary judgment.

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

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 15, 2005, which granted the plaintiff’s motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment is denied.

Contrary to the Supreme Court’s determination, the defendant’s request for additional verification, which followed the plaintiff’s submission of an N-F5 verification, did not have to be set forth in a prescribed form (see 11 NYCRR 65-3.5 [b]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]). Therefore, the additional verification request tolled the defendant’s time within which to pay or deny the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1], [2]) until the defendant received all of the relevant information requested (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 101 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]). Since the defendant sent a partial payment and denial of benefits to the plaintiff after the requested material was provided and within the applicable time period, its response to the claim was not untimely. [*2]

Furthermore, the affidavit and documentary evidence submitted by the defendant in opposition to the plaintiff’s motion for summary judgment were in admissible form, since the affiant adequately stated her basis of knowledge for the facts asserted in her affidavit and laid a proper foundation for the introduction of the documents. Moreover, those submissions established that other medical providers were properly paid before the plaintiff (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., supra at 103). However, a triable issue of fact exists as to whether the no-fault benefits under the subject policy were exhausted, since the affidavit of the defendant’s employee indicates that they were, but the payment register maintained by the defendant in the regular course of business reveals a balance of no-fault benefits in excess of the amount billed by the plaintiff. Accordingly, determination of the issue of whether the policy limits were in fact exhausted before full payment could be made to the plaintiff must await further proceedings.

The plaintiff’s remaining contentions are without merit. Adams, J.P., Ritter, Mastro and Lifson, JJ., concur.

Civil Court of the City of New York, Queens County

000013/2005

Thomas D. Raffaele, J.

After a bench trial, which was held before this Court on November 20, 2006, the Court finds as follows:

In this action, plaintiff provider-assignee seeks recovery of first-party no-fault benefits for medical services provided to assignor Krzysztof Wielgosz. The parties stipulated to the fact that the plaintiff had established its prima facie case, and that the insurer had timely denied the bills in question, with the only issue remaining for trial being the insurer’s defense of lack of medical necessity. The insurer, rather than presenting the live testimony of its peer-review expert, neurologist Daniel J. Feuer, M.D., submitted for the Court’s consideration the transcript of his deposition for admission pursuant to CPLR §3117(a)(4). Said deposition was noticed approximately three months following the filing of a notice of trial in this matter. Defense counsel conceded that he did not move to strike the notice of trial prior to noticing the deposition. Plaintiff’s providing physician, Dr. Deepika Bajaj, provided live rebuttal testimony at the trial.

IDefendant was not authorized to take the deposition of its expert after the notice of trialwas filed.

Initially, the Court finds that defendant Progressive, absent a court order issued following a motion demonstrating “unusual or unanticipated conditions,” was not entitled to notice or to conduct a pretrial examination of their expert peer-review witness. The Uniform Civil Rules for the New York City Civil Court (22 NYCRR §208.17) provide that: [*2]

(c) Within 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.

(d) After any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.

Defendant conceded on the record that no such application was ever made. Where a moving party demonstrates that “unusual or unanticipated conditions” have developed after the filing of a notice of trial which make it necessary that further pretrial examinations or proceedings be conducted in order to prevent undue prejudice to the movant, the trial court may, in its discretion, grant permission to conduct such additional discovery (see 22 NYCRR 208.17 [d]; see generally 22 NYCRR 202.21). Appellate courts have held that “unusual or unanticipated conditions” contemplates a condition which is “not in the control of the party seeking further discovery and . . . [causes] actual rather than potential prejudice” to third-party defendant (Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept. 2000]), such as where a plaintiff suddenly is required to undergo surgery after the notice of trial is filed, (see e.g. David v Guardian Life Ins. Co. of Am., 2005 NY Slip Op 25332, 2 [App. Term, Second Dept. 2005]) . In the case at bar, defendant has known that the deposed witness was expected to be called at trial since September of 2005, when the physician conducted his peer review on defendant’s behalf. Defendant failed to conduct a deposition of the doctor during the pretrial disclosure process. A notice of trial was filed on March 6, 2006. No motion to strike the notice of trial was ever made. The defendant noticed and conducted the peer review doctor’s examination before trial on June 5, 2006, three months after the notice of trial was filed. Plaintiff’s counsel by timely letter advised defense counsel that he objected to the post-notice of trial deposition. Clearly, the defendant failed to comply with the procedures set forth under 22 NYCRR 208.17[d]), nor did defendant show that any “unusual or unanticipated conditions” developed so as to justify further pretrial disclosure after the filing of the notice of trial (see Parker Chapin Flattau & Klimpl, LLP v Bamira, 2005 NY Slip Op 51208U, 2 [App. Term 1st Dept. 2005]).

II.Defendant’s expert’s opinion was based on documents not in evidence and thereforeinadmissible.

Defendant nonetheless claims that the late deposition testimony may be used pursuant to CPLR §3117(a)(4).

CPLR §3117(a)(4) provides that:

the deposition of a person authorized to practice medicine may be used by any [*3]party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.

However, even if the transcript itself is admissible pursuant to the above CPLR section, the contents thereof are subject to further scrutiny on the ground of the competence of the expert’s testimony, or lack thereof. In the case at bar, even assuming, arguendo, that there were conditions justifying the taking of the deposition of defendant’s expert subsequent to the filing of the notice of trial, the Court finds that the opinions expressed in the deposition were based upon documents which were not introduced into evidence at the deposition. Moreover, there was no evidence in the record of their reliability based upon the familiarity of the deposed witness with the procedures for the keeping of such records. Therefore, to admit the opinions at trial would be violative of the Second Department’s rule in Wagman v Bradshaw, 292 AD2d 84 [2d Dept. 2002]).

In Wagman, the Second Department held that:

It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is accompanied by evidence establishing its reliability.

(Wagman v Bradshaw, supra at 86-87 [2d Dept. 2002]).

In Astrel v Yarborough, 2006 NY Slip Op 5302, 1 [2d Dept. NY App. Div. 2006], the Second Department recently reaffirmed this rule, holding that “[g]iven the absence of evidence as to the reliability of those out-of-court medical records, the Supreme Court providently exercised its discretion in granting the defendant’s motion” [to preclude the physician’s testimony] (see DeLuca v Ding Ju Liu, 297 AD2d 307 [2d Dept. 2002]).

The Second Department, in Jemmott v Lazofsky, (5 AD3d 558, 560 [2d Dept. 2004]), held that a trial court erred in (a) admitting two MRI reports of the plaintiff’s knee and permitting a doctor to offer redirect testimony regarding their contents, since the reports were prepared by other health care professionals who did not testify at the trial and the MRI film was not admitted into evidence and (b) permitting the plaintiff’s attorney to cross-examine the defendant’s medical expert witness regarding an MRI film of the plaintiff’s back and the accompanying MRI report, as neither the MRI film nor the report were admitted into evidence, and directed a new trial on the issue of damages (see also D’Esposito v Kepler, 14 AD3d 509, 510 [2d Dept. 2005]); Wierzbicki v Mathew, 8 AD3d 476, 477 [2d Dept. 2004]; see also Sunnyside Plus v Allstate Ins. Co., 2005 NY Slip Op 25110 [Civil Ct. Queens Co., 2005, Dunbar, J.]).

In the matter before this Court, the deposition transcript of the peer-review physician indicates that neurologist Daniel J. Feuer, M.D. relied upon the following records:

[A] report of EMG testing of the upper extremeties by Dr. Bajaj dated 8/11/05, an EMG of the lower extremeties by Dr. Bajaj dated 8/11/05, a chronic pain assessment report dated 8/3/05, a report of MRI of the left knee dated 8/1/05, psychological evaluation dated 7/27/05 and a report of consultation of Dr. Cohen [*4]dated 8/8/05. (See transcript, p. 10, lines 3-9).

Dr. Feuer’s opinion was based upon a lack of documentation of “any consistent radicular or neuropathic complaints referable to the upper extremities which would support the necessity for this testing,” (see transcript p. 13, lines 12-15), along with “inconsistent findings reported in this case” (see transcript, p. 14, lines 9-10). The records referenced were not certified or authenticated (see CPLR §§4518, 3122-a). The EMG and MRI studies were not authenticated at the deposition or at trial using the expedited method provided by CPLR §4532-a, nor were all of the records utilized by the peer-review physician authenticated by Dr. Bajaj at trial. There was no testimony from the peer-review doctor or anyone else as to the reliability of such out-of-court records. As a result, Dr. Feuer’s opinion was based partly if not totally upon records which were not in evidence, and their reliability was not established. Thus, under Wagman and its progeny, it would be error for this Court to consider expert opinion based upon these records.

III.Strong policy reasons militate against permitting a trial by pretrial examination alone.

While not dispositive on this trial, the Court is constrained to discuss the following policy considerations:

The purpose of a trial is a search for the truth rather than an exercise in gamesmanship or a contest of strategies (see Finn v Morgan, 46 AD2d 229, 234 [2d Dept. 1974]; Ward v Kovacs, 55 AD2d 391 [2d Dept. 1977]). The court has a judicial responsibility to formulate rules of procedure to protect the integrity of the truth-finding process. A practice which hinders the search for truth is not one which ought to function under the broad imprimatur of the courts.

A deposition contains no more than testimonial evidence of the party-deponent and is merely the vehicle by which this evidence comes before the trier of fact. CPLR. §3117 confers upon the deposition no special qualities rendering its use immune to ordinary rules of trial practice. Thus, the discretionary power to control the use of live witnesses applies with equal force to control the use of a deposition. (See Feldsberg v Nitschke, 49 NY2d 636 [1980] leave denied 50 NY2d 1059 [1980]).

A trial court sitting as a trier of fact has discretion to require live testimony, rather than a transcript which is handed up for the Court’s later perusal, particularly where, as here: (a) the defendant’s entire case relies upon the testimony of a peer-review expert who will opine as to the medical necessity of the service at issue, and (b) where the expert’s opinion is entirely based upon his review of some records provided to him by an insurance carrier or its intermediary vendor.It is of great value to the court sitting as the trier of fact to observe the demeanor of the witnesses during their testimony in order to assess their credibility. Depriving the court of the opportunity to view the witness’ demeanor during testimony is a serious departure from accepted court standards, and should not be entertained lightly. Likewise, it is the cornerstone of the court’s search for truth that all testimony be subjected to the rigors of cross-examination. Neither the physician’s testimony at the deposition, which plaintiff’s counsel objected and did not appear for, nor the testimony at trial, where the defendant decided not to have the doctor appear for, was subjected to cross-examination. These venerable devices, intended to promote the ends of justice for litigants appearing before the Court, cannot function as intended when parties rely principally, if not exclusively, upon an out-of-court perusal of a transcript of a deposition.

Further adding to the repugnancy of the process is the fact that these depositions are taken after a notice of trial was filed. Plaintiff’s counsel must then choose whether to attend an [*5]unsanctioned deposition and delay the disposition of the case, or risk a waiver of his right to challenge the use of such deposition at trial. Given the legion of no-fault cases in Queens County, the Court cannot countenance additional delays through the use of a procedure which contravenes the Uniform Rules for the New York City Civil Court, strains judicial resources, and delays the administration of justice.

To permit this practice to proliferate would be tantamount to encouraging the defendants to submit a second summary judgment motion where the first has already been considered, and to capriciously label it a “trial.” Indeed, such a “trial” fails to put the defendants to their burden of proof by presenting live testimony in support of its defense.

IV.The deposition of Dr. Feuer does not satisfy the defendant’s burden of demonstrating a lack of medical necessity.

Even were this Court to consider Dr. Feuer’s deposition in support of the defendant’s medical-necessity defense, it would not, in any event, sustain the defendant’s burden of proof in this regard.

As a general proposition, the court sitting as trier of fact is free to assess and reject even uncontradicted expert opinion, (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 2006 NY Slip Op 51871U, 2 [App. Term 2d Dept. 2006]; 58A NY Jur. 2d, Evidence and Witnesses §676). The insurer bears both the burden of production and the burden of persuasion with respect to medical necessity of the treatment or testing for which payment is sought. (See Kings Medical Supply, Inc. v Country-Wide Ins. Co., 5 Misc 3d 767 [Civ. Ct. Kings County 2004]; Nir v Allstate Ins. Co., 2005 NY Slip Op 25090, 2 [Civ. Ct. Kings Co. 2005]). In the trial context, few decisions clarify defendant’s burden of proof, or what evidence may be sufficient to establish that the services were medically unnecessary. Trial courts have held that, at a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services (see A.B. Med. Servs. P.L.L.C. v NY Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50662U, 2 [Civil Ct. Kings Co. 2005]; A.R. Med. Art, P.C. v State Farm Mut. Auto. Ins. Co., 2006 NY Slip Op 50260U, 2 [Civil Ct. Kings Co. 2006] ; Long Is. Radiology v Allstate Ins. Co., 2006 NY Slip Op 51090U, 3 [Sup. Ct. Nassau Co., 2006]; Citywide Social Work & Psy. Serv. P.L.L.C. v Travelers Indemnity Co., 3 Misc 3d 608 [Civil Ct. Kings Co. 2004]; Inwood Hill Medical P.C. v Allstate Ins. Co., 3 Misc 3d 1110[A] [Civil Ct. Kings Co. 2004]). If defendant at trial provides an insufficient factual basis or medical rationale for its peer review report at trial, the court may afford the peer review report minimal weight, and defendant may fail to sustain its burden of proof. A peer review report’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards. A peer review report’s factual basis may be insufficient if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim (see e.g Amaze Medical Supply v Allstate Ins. Co., 3 Misc 3d 43, 2004 NY Slip Op 24119 [App. Term 2d Dept. 2004]). For example, a defendant may not establish lack of medical necessity if the only reason for the denial was that the peer review doctor did not have enough information in the claim file upon which a determination could be made (see Park Neurological Servs. v Geico Ins., 4 Misc 3d 95, 2004 NY Slip Op 24210 [App Term, 2d Dept. 2004]). Hence, a peer review may be insufficient if it is based upon merely a lack of evidence which was available, but inexplicably not supplied to the peer-review doctor by the insurance company. One court has held that a peer review report may [*6]be insufficient if the peer review doctor merely reviewed records, rather than examined the insured patient, in preparing the peer review report (see Alliance Medical Office, P.C. v Allstate Ins. Co., supra; see also Fifth Avenue Pain Control Center v Allstate Ins. Co., supra.). For example, the medical rationale may be insufficient if not supported by evidence of the “generally accepted medical/professional practice” (Citywide Social Work & Psy. Serv. P.L.L.C. v Travelers Indemnity Co., supra at 608 ). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Citywide Social Work & Psy. Serv. P.L.L.C. v Travelers Indemnity Co., supra at 616). Alternatively, if the plaintiff offers evidence that its medical services were consistent with generally accepted medical practice, the defendant’s peer review report may be afforded less weight and defendant may fail to sustain its burden of proof at trial (see Elm Medical P.C. v American Home Assurance Co., 2003 NY Misc. LEXIS 1337, 2003 NY Slip Op. 51357U [Civil Ct. Kings Co. 2003] [Defendant peer review doctor’s conclusion that the electrodiagnostic testing was not “properly documented” did not contradict plaintiff’s testimony of medical necessity and defendant failed to carry its burden]).

Instructive in this context is Nir v Allstate Ins. Co., (2005 NY Slip Op 25090, 3 [Civil Ct. Kings Co. 2005]), in which defendant’s doctor recommended denial of plaintiff’s claim because, in his opinion, the diagnostic testing performed by plaintiff Dr. Nir was done prematurely. During testimony, the peer review doctor cited only a review of Dr. Nir’s medical reports as the basis for his peer review report. He did not physically examine the patient before writing the peer review report. He cited no medical authority, standard, or generally accepted medical practice as a medical rationale for his findings. Finally, defendant was not able to explain how the tests could be medically unnecessary when the tests did in fact yield positive findings of nerve damage. Such scant factual basis and medical rationale was held not to sustain defendant’s burden of proof.

This court finds that, even if admissible, the opinion by the defendant’s peer-review physician contained in the deposition transcript on the issue of lack of medical necessity is lacking in a factual basis, unsupported by cogent medical rationale as to generally accepted medical/professional practice, wholly conclusory, and based almost entirely upon his review of records which were not in evidence. By failing to appear in court, the Court is foreclosed from determining whether there were records available which were not provided to the peer-review doctor which would have been relevant to his review. When compounded by the court’s inability to observe the doctor’s demeanor and the lack of cross-examination, an opinion of this qualitative nature is essentially of little value to the court in rendering a just decision. Despite the fact that Dr. Feuer claims to have reviewed Dr. Bajaj’ records of examinations on both 7/21/05 and 8/11/05, he selectively fails to mention that, contrary to his testimony, Dr. Bajaj did in fact find consistent radicular or neuropathic complaints in the upper extremities. On rebuttal during trial, Dr. Bajaj, who did appear before the Court, testified as to her findings of weakness and spasms on the left upper extremity indicating a denervation and nerve damage related to the C6-C7 region, thereby efficaciously rebutting and contravening Dr. Feuer’s deposition testimony.Based upon all of the foregoing, the Court renders judgment after trial in the full amount prayed for by the plaintiff, along with statutory interest, costs and attorneys’ fees. The Clerk of the Court is directed herein to enter judgment accordingly.

This constitutes the opinion, decision, and order of the Court. [*7]

___________________________

Hon. Thomas D. Raffaele

Judge, Civil Court

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 (Alice Fisher Rubin, J.), entered August 19, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

Proof that plaintiff submitted a claim, setting forth the fact and the amount of the loss sustained, is an essential element of plaintiff’s prima facie case to recover first-party no-fault benefits (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, due to plaintiff’s failure to prove mailing of its claims, the burden of proof never shifted to defendant and the court properly denied
plaintiff’s motion for summary judgment (see Magnezit Med. Care P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; Magnezit Med. Care, P.C. v Allstate Ins. Co., 11 Misc 3d 129[A], 2006 NY Slip Op 50293[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 8 Misc 3d 130[A], 2005 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]).

As for defendant’s cross motion, it, too, should have been denied. Other than defense counsel’s conclusory affirmation stating that plaintiff “cannot show” timely mailing, defendant offers no admissible proof to establish that it never received plaintiff’s claim or that the claim was submitted beyond the statutory deadline. Accordingly, defendant failed to make a prima facie [*2]showing entitling it to judgment as a matter of law.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores J. Waltrous, J.), entered August 16, 2005. The order, inter alia, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126.

Order affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 24, 2004, plaintiff was directed, among other things, to appear for a deposition no later than November 12, 2004. The stipulation further provided, in relevant part, that:
“[i]f [plaintiff] fails to appear for said EBT [plaintiff] shall be precluded from offering evidence [at] trial.

***
ALL DATES CONTAINED HEREIN RELATING TO COMPLETION OF ITEMS IN THIS ORDER MUST BE ADHERED TO. COUNSEL MAY NOT ENTER INTO ANY [*2]ADJOURNMENTS WITHOUT FURTHER ORDER OF THIS COURT, [e]xcept for [plaintiff’s] summary judgment motion” (emphasis in original).

Plaintiff failed to appear at the deposition and, instead, moved for summary judgment just prior to the date plaintiff was required to appear. Defendant cross-moved to strike plaintiff’s pleadings and dismiss the complaint or, alternatively, to preclude plaintiff from introducing evidence at trial based on plaintiff’s failure to appear at the deposition. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss, noting that plaintiff failed to appear at the deposition as directed. Plaintiff now appeals claiming, among other things, that the filing of its motion for summary judgment stayed all discovery and, thus, there was no requirement to appear on the scheduled date.

While CPLR 3214 (b) automatically stays discovery during the pendency of a summary judgment motion, it should not be invoked in this case where the court plainly directed otherwise. Pursuant to the so-ordered stipulation, plaintiff was to appear at a deposition on or before November 12, 2004 or face preclusion, and no extension of this date would be permitted without prior court approval. The stipulation unequivocally required prior court approval for any adjournments of dates set forth in the stipulation, “[e]xcept for [plaintiff’s] summary judgment motion.” Thus, while plaintiff was permitted to adjourn its time to file its summary judgment motion without prior court approval, this permission did not extend to any other deadlines set forth in the so-ordered stipulation. By requiring prior court approval, the court made clear that strict compliance with discovery was required, regardless of whether a summary judgment motion was served.

Plaintiff’s service of the summary judgment motion just before it was required to appear was nothing more than a ploy to avoid the court’s directives. Such flagrant disregard of a court order should not be condoned.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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 an action to recover assigned first-party no-fault benefits, a plaintiff 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, by annexing to its moving papers defendant’s claim denial form, the contents of which corresponded to the appended claim forms, plaintiff established that it sent and that defendant received the claims in question (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op [*2]50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s prima facie entitlement to summary judgment as to the aforementioned claims was established, and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, defendant’s denial of claim form indicated that defendant did not deny the claims within 30 days of their receipt. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof of having done so. The affidavit of defendant’s special investigator stated that the policy in effect at the time of the accident required an eligible injured person to submit to an examination under oath (EUO) if reasonably requested, and referred to documents to show that EUOs were in fact requested of plaintiff’s assignor. There were, however, no evidentiary submissions to establish that said requests were mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Thus, defendant’s time to deny the claim was not tolled, the denial was untimely and defendant was precluded from raising most defenses as a result of its untimely denial (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While defendant is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., “a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]). Accordingly, plaintiff is entitled to summary judgment and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 9, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on January 10, 2006. The judgment, entered pursuant to the September 9, 2005 order granting plaintiff partial summary judgment, awarded plaintiff the sum of $2,580.09, including interest, costs and attorney’s fees.

Judgment affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission
of statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, with respect to the appended claim forms for the amounts of $614.33, $300, $400 and $400, plaintiff established that it sent and that defendant received same by annexing to its moving papers defendant’s denial of claim forms corresponding thereto (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud [*2]Dists]). Accordingly, plaintiff established its prima facie entitlement to summary judgment as to the aforementioned claims and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s assertion that it timely denied the claims based on the assignor’s failure to appear for scheduled independent medical examinations (IMEs) and nonconformity with the Workers’ Compensation fee schedule is lacking in merit. While
a post-claim IME verification request may toll the 30-day statutory period within which an insurer has to pay or deny a claim (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]), the affidavit of defendant’s no-fault specialist was insufficient to establish the mailing of the IME request letters since she neither alleged that she had personal knowledge that said request letters were mailed nor set forth a sufficiently detailed description of defendant’s standard office mailing practice or procedure so as to give rise to the presumption of mailing (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). As a result, defendant failed to establish that the 30-day statutory time period within which it had to pay or deny plaintiff’s claims was tolled. Since defendant failed to establish that it timely denied plaintiff’s claims, it is precluded from asserting its defenses of lack of medical necessity and that the fees charged by plaintiff were excessive (see Presbyterian Hosp. in Cityof N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Therefore, the lower court properly granted plaintiff’s motion to the extent of awarding it partial summary judgment as to its claims in the sums of $614.33, $300, $400 and $400.

Pesce, P.J. Weston Patterson and Belen, JJ., concur.
Decision Date: November 15, 2006