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 (Joseph Esposito, J.), entered May 26, 2005. The order granted plaintiff partial summary judgment in the principal sum of $4,671.57 and denied defendant’s cross motion for summary judgment dismissing the action.

Order affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]). In the instant case, since defendant admitted that it received the five claim forms at issue, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, and in support of its cross motion for summary judgment, defendant asserted that it timely denied plaintiff’s claim which sought to recover the sum of $1,968.36 based upon a sufficiently detailed affirmed peer review annexed to defendant’s denial of claim form. The affidavit submitted by defendant’s no-fault specialist was sufficient to [*2]establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). As a result, both plaintiff’s motion and defendant’s cross motion for summary judgment upon this claim were properly denied.

However, defendant’s assertion that the plaintiff’s motion for summary judgment upon its claims for $390.85, $2,290, $205.77, and $1,784.95 should have also been
denied lacks merit. The affidavit executed by defendant’s no-fault specialist was insufficient to prove actual mailing of the verification requests or to create a presumption of mailing (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). In light of defendant’s failure to establish the mailing of its verification requests, defendant did not establish that the 30-day claim determination period was tolled. As a result, defendant was precluded from raising most defenses to the claims for $1,784.95, $205.77, $2,290 and $390.85, with exceptions not relevant herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). Consequently, the court properly granted plaintiff partial summary judgment upon these claims.

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

Golia, J., concurs in a separate memorandum. [*3]

Golia, J., concurs with 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 note that if defendant’s claim manager had expanded his affidavit by stating that requests for verifications follow the same mailing procedures as denial of claim forms, then it would have been sufficient, at least to me, to establish a timely mailing of the verification demands.
Decision Date: August 15, 2006

[*1]

Supreme Court, Appellate Term, First Department, August 15, 2006

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Baker, Barshay & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**13 Misc 3d at 23} OPINION OF THE COURT

Per Curiam.

Order entered March 18, 2005, reversed, with $10 costs, and the matter remanded for a new trial.

In this action to recover assigned first-party no-fault benefits, the parties stipulated to defendant’s receipt of plaintiff’s no-fault bills, the issuance of a timely denial by defendant, and that the sole defense was the lack of medical necessity for diagnostic computerized range of motion and muscle tests conducted by plaintiff. Defendant’s peer review doctor and trial expert testified that his peer review report and conclusion of lack of medical necessity were based upon a review of the records and reports prepared by plaintiff. Plaintiff moved to preclude the expert’s testimony on the ground that his testimony was based upon medical records not in evidence. The court granted plaintiff’s motion to preclude and directed judgment in favor of plaintiff.

We reverse. Plaintiff’s challenge to the reliability of the medical records and reports relied upon by defendant’s expert is unavailing given the fact that the records were prepared by plaintiff’s own principal, who personally treated the assignor and conducted the tests in question (cf. Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]). In these circumstances, plaintiff may not be heard to argue that 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. Moreover, defendant’s expert, in forming his opinion, relied upon the records only to the extent that they documented the assignor’s injuries, plaintiff’s diagnosis [*2]and the treatment rendered.

Davis, J.P., Gangel-Jacob and Schoenfeld, JJ., concur.

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 L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians to the extent of directing all parties to appear for examinations before trial.

Appeal from so much of the order as directed all parties to appear for examinations before trial dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment and defendant cross-moved to compel examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s treating physicians. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of directing all parties to appear for examinations before trial. Plaintiff failed to submit written opposition to defendant’s cross motion, but instead argued in its reply papers that it was entitled to summary judgment without addressing defendant’s argument that it was entitled to examinations before trial. Since so much of the order as granted [*2]defendant’s cross motion to the extent of directing all parties to appear for examinations before trial was entered on default, the appeal therefrom by plaintiff, a defaulting party, must be dismissed (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]).

A provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A plaintiff ordinarily establishes the “submission” of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Here, the affidavit of plaintiff’s corporate officer and the post office ledger annexed thereto were insufficient to establish that plaintiff mailed the claims to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Moreover, plaintiff’s attorney’s affirmation was based on allegations by a person without personal knowledge that the claim was actually mailed to defendant and, as such, is unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the denial of claim form annexed to plaintiff’s moving papers was insufficient to establish that plaintiff sent, and that defendant received, the claim since the denial of claim form indicated that defendant received a claim for the sum of $1,922 from plaintiff and the bill annexed to plaintiff’s moving papers was for the sum of $1,804.50 (cf. 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 Dists]). Thus, plaintiff failed to establish its prima facie entitlement to summary judgment. Accordingly, the lower court properly denied plaintiff’s motion for summary judgment.

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to 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.
Decision Date: August 14, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from so much of an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered September 28, 2005, as denied its cross motion for summary judgment dismissing the complaint, or, in the alternative, to compel discovery.

PER CURIAM:

Order (Eileen A. Rakower, J.), entered September 28, 2005, modified (1) to dismiss the third and fourth causes of action pertaining to assignor Ramon Albino, and (2) to direct plaintiff to provide verified responses to questions 6-9, and 23 of the interrogatories, to respond to items 4-6, 8-9, 16, and 29-30 of defendant’s demand for discovery and inspection, and to comply with defendant’s notice of examination before trial requesting the deposition of Dr. Rafael; as so modified, affirmed, with $10 costs.

Defendant’s cross motion for summary judgment should have been granted to the extent of dismissing the third and fourth causes of action seeking no-fault benefits in the sum of $2,016.27 as to assignor Ramon Albino. It is undisputed on this record that the no-fault claims with respect to Albino were submitted to arbitration prior to the commencement of the action herein. By electing to arbitrate, plaintiff waived its right to commence an action to litigate any no-fault claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]).

Civil Court properly denied that branch of defendant’s cross motion which sought dismissal of the causes of action pertaining to assignors Odilis Garcia and Gilberto Hernandez. Defendant waived the affirmative defense of a “prior action pending” with regard to assignor Garcia by failing to raise the defense in its answer or in a pre-answer motion to dismiss (see CPLR 3211 (e); Charlton v United States Fire Ins. Co., 223 AD2d 404 [1996]). While defendant’s documentary submissions are sufficient to raise issues of fact with respect to its defenses that plaintiff is a fraudulently licensed corporation and that the medical services were provided by an independent contractor, they are insufficient to warrant judgment as a matter of law on these issues. [*2]

Defendant is entitled to discovery insofar as relevant to the foregoing defenses, as above indicated. This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: August 10, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), dated April 4, 2005, which denied its cross motion to compel discovery and granted plaintiff’s motion for a protective order.

PER CURIAM:

Order (Sharon A.M. Aarons, J.), dated April 4, 2005, modified to direct plaintiff to fully respond to item 10 of defendant’s demand for discovery and inspection and to comply with defendant’s amended notice of examination before trial, and as modified, affirmed, with $10 costs.

Item 10 of defendant’s demand for discovery and inspection, which calls for information pertaining to the employment status of the treating health provider, is relevant to the issue of whether the medical services were performed by an independent contractor (see 11 NYCRR 65-3.11 [a]). Plaintiff only submitted a partial response to item 10 of defendant’s demand and is accordingly directed to fully comply therewith. Plaintiff is also directed to comply with the defendant’s amended notice of examination before trial, requesting the depositions of Dr. Dipak Nandi, plaintiff’s president, and of Nan Ni Gilbert, Lic. Ac., the treating provider, as their testimony bears directly upon the foregoing defense.

Plaintiff’s motion for a protective order with regard to defendant’s remaining discovery demands was properly granted even if the motion was not timely made, as the disclosure sought was palpably improper because it was duplicative (see Matter of Williamson, 261 AD2d 147 [1999]), unduly burdensome (see Albert v Time Warner Cable, 255 AD2d 248 [1998]), irrelevant (Duhe v Midence, 1 AD3d 279 [2003]), and pertained to defenses not at issue in this case. Finally, while an insurer may delay payment of a claim to investigate whether a professional corporation was fraudulently incorporated, defendant has failed to meet the threshold requirement of “good cause” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and thus is not entitled to disclosure pertaining to such defense. [*2]

This constitutes the decision and order of the court.

Decision Date: August 02, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated appeals, plaintiffs, as limited by their brief, appeal from three orders of the Civil Court, Bronx County (Sharon Aarons, J.), dated March 8, 2005, and four orders (same court and Judge), dated April 25, 2005, which, inter alia, granted defendant’s cross motions for summary judgment dismissing the complaints. Defendant cross appeals from two orders (same court and Judge), dated April 25, 2005, which denied its cross motions for summary judgment dismissing the complaints as against plaintiffs Maple Medical Acupuncture Services, P.C., a/a/o Jose Villanueva and Continental Medical Acupuncture Services, P.C., a/a/o Maria Tejeda.

PER CURIAM:

Orders (Sharon Aarons, J.), dated March 8, 2005 and April 25, 2005, which granted defendant’s cross motions for summary judgment, modified to deny defendant’s cross motions, and as so modified, affirmed, without costs; orders (Sharon Aarons, J.) dated April 25, 2005, which denied defendant’s cross motions for summary judgment, affirmed, without costs.

In these nine actions, consolidated for purposes of appeal, plaintiffs health care providers seek to recover assigned first-party no-fault benefits. Defendant moved for summary judgment in each action based on the identical defense that the treating acupuncturists were independent contractors rather than employees of plaintiffs providers.

Whether an employer-employee relationship exists generally is a question of fact and turns on the “degree of control exercised by a purported employer over the results produced by the work and the means used to achieve those results” (Cipriani Group, 1 NY3d 193, 198 [2003]; see also Matter of Charles A. Field Delivery Serv., Inc., 66 NY2d 516 [1985]). Here, summary judgment is unwarranted since issues of fact exist as to whether the acupuncturists who rendered the services underlying plaintiffs claims were employees or independent contractors. Contrary to defendant’s contention, plaintiffs’ letter dated April 1, 2002 is not dispositive of the issue (cf. Antell, D.O., PC v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137A [2006]). While the reporting of annual pay on an IRS 1099 form may be significant in assessing whether the [*2]acupuncturists were independent contractors or employees, it is only one of the relevant factors in assessing the relationship which existed between plaintiffs and the acupuncturists (see Bynog v Cipriani Group, 1 NY3d at 198).

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: July 27, 2006