Supreme Court, Nassau County

018617/05

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P. O. Box 1144

Bellmore, NY 11710

Jaffe & Nohavicka, Esqs.

Attorneys for Defendant

40 Wall Street, 12th Floor

New York, NY 10005

Thomas P. Phelan, J.

Motion by plaintiff Mary Immaculate Hospital, a/a/o Thomas Matamoros (Hospital) for an order pursuant to CPLR 3212 awarding it summary judgment is granted.

Cross-motion by defendant Countrywide Insurance Company (Countrywide) for an order awarding it summary judgment dismissing plaintiff’s complaint is denied.

Plaintiff brings this action pursuant to Insurance Law §5101 et seq. to recover no-fault benefits alleged due under an insurance policy issued by defendant Countrywide for $55,105.27 in medical services provided by plaintiff Hospital (as assignee) to Matamoros (as assignor).

The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626).

The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the [*2]absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062).

However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Alvarez v. Prospect Hosp., 68 NY2d 320).

Plaintiff has submitted prima facie evidence that it served the appropriate no fault billing form and that said claim was not timely paid. Payment by defendant was therefor overdue (Dermatossian v. New York City Transit Authority, 67 NY2d 219, 224; see, New York Hospital Medical Center of Queens v. New York Central Mut. Fire Ins. Co., 8 AD3d 640).

In response, defendant submits sufficient evidence to create an issue of fact over whether defendant timely denied plaintiff’s claim premised upon an alleged exclusion from coverage where the injury to plaintiff’s assignor occurred while “committing an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer” (see Insurance Law §5103(b)(3); 11 NYCRR 65.1-1).

Defendant, however, fails to provide evidence to establish, prima facie, entitlement to application of the alleged exclusion. Notably absent from defendant’s proof is that the permitted exclusion was in fact incorporated into the insurance policy upon which plaintiff brings its claim for no fault recovery.

The subject exclusion, while statutorily permitted and specifically included in the mandatory endorsement promulgated by the Superintendent of Insurance, is not required. “[A]n insurer may, at its option, delete the exclusion and cover the risk” (Servido v. Superintendent of Ins., 53 NY2d 1042, [1981] revg. on dissenting op. 77 AD2d 70, 80-81 [1st Dept., 1980]). Defendant neither alleges nor establishes the specific contents of its policy with plaintiff’s assignor, Matamoros.

Moreover, defendant provides nothing to demonstrate that Mr. Matamoros was, in fact, committing a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer. The affidavit by defendant’s eyewitness establishes only that Matamoros was running at the time of the accident and the Police Accident Report provided by defendant is inadmissible (Holliday v. Hudson Armored Car & Courier Service, Inc., 301 AD2d 392 [1st Dept., 2003]).

Assuming, arguendo, as alleged in the Police Accident Report that “pedestrian [Matamoros] was struck by veh[icle] #1 while trying to flee security at Barnes and Noble” this, nevertheless, does not create an issue of fact regarding the commission of a felony or flight from lawful apprehension or arrest by a law enforcement officer. Mere conclusions and unsubstantiated allegations or assertions are insufficient to defeat summary judgment (Zuckerman v. City of New York, [1980] 49 NY2d 557, 562; Aghabi v. Sebro, 256 AD2d 287 [2nd Dept., 1998]) as are speculation and surmise (Beecher v. Northern Men’s Sauna, 272 AD2d 281 [2nd Dept., 2000]; Lahowin v. Ganley, 265 AD2d 530 [2nd Dept., 1999]).

Accordingly, plaintiff is awarded summary judgment against defendant on its claim for $55,105.27 together with statutory interest from October 15, 2005, statutory attorney’s fees, costs and disbursements.

The Clerk may enter judgment.

This decision constitutes the order of the court.

Dated: JUNE 28, 2006 THOMAS P. PHELAN

J.S.C.

APPEARANCES OF COUNSEL

City Court of Buffalo

CC-15483

David W. Polak, Esq.

Attorney for Claimants

1220 Liberty Building

424 Main Street

Buffalo, New York 14202

Phyliss A. Hafner, Esq.

Attorney for Defendant

3332 Walden Avenue, Suite 100A

Depew, New York 14043

Henry J. Nowak, J.

Background & Jurisdiction

This matter began as a commercial claim before a hearing officer in the small claims part of this court, pursuant to local rule. The first hearing date was adjourned at the consent of both parties, apparently so that defendant Progressive Casualty Insurance Company [hereinafter “Progressive”] could bring a formal written motion for summary judgment. At the next date, Progressive attempted [*2]to argue its formal written motion but was prevented from doing so by the hearing officer. Because both parties were represented by counsel and motion practice is generally discouraged in small claims court, the hearing officer questioned whether the matter should be transferred out of small claims to a regular part of the court pursuant to 22 NYCRR 210.41-a (d). As a result, the hearing officer sent the matter to a judge in the special term part who agreed to hear the matter as a judge sitting in the small claims part.

Claimant Proscan Radiology of Buffalo [hereinafter “Proscan Radiology”] was the original claimant. At oral argument, in response to defendant’s motion to dismiss for lack of standing, counsel for Proscan Radiology moved to amend the caption by adding Proscan Imaging, Buffalo [hereinafter “Proscan Imaging”] and Dr. Gurmeet Dhillon, as additional claimants bringing the same claim. Over defendant’s objection, this court granted the motion to amend, pursuant to UCCA §1804-A (“the court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading and/or evidence”).

The claim is based on the assignment of first party no-fault benefits from an insured of Progressive’s to claimants, who provided medical services (3 MRI scans) to the insured. Progressive denied payment of the claim based on a peer review report claiming that the MRI tests were premature and not medically necessary at the time that they were performed, and that the fees requested were in excess of the fee schedule.

In addition to those defenses, Progressive also asserts that Proscan Radiology has no standing to sue because it is not the assignee named in the original no-fault assignment. Progressive also moves to dismiss the newly added claim by Dr. Dhillon for the same reason. Progressive moves to dismiss the claim by Proscan Imaging (who it claimed to be the named assignee) because it is not licensed to practice medicine in New York and therefore cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16, as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005).

Both parties are seeking summary judgment at this time. While pre-trial motion practice is generally discouraged in small claims court (Weiner v Tel Aviv, 141 Misc 2d 339 [1988]), it is allowed by 22 NYCRR 210.41-a (l). This court agreed to hear this motion because it appears that this issue will recur repeatedly in small claims proceedings unless the court makes and publishes a ruling.

In making this decision, the court is mindful of the of the goals and intentions of the legislature in enacting the commercial small claims parts in city courts; namely, to provide commercial entities and small businessmen, who have relatively simple and small monetary claims, with a forum that is convenient, simple and quick. The court is also aware of the primary purpose underlying the no fault law; namely, to assure prompt payment of first-party benefits without regard to fault and without expense to those making claims as a result of motor vehicle accidents. To implement this legislative aim of curtailing delay and reducing expense in the adjustment of such claims, the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays (Dermatossian v New York City Transit Authority, 67 NY2d 219, 225 [1986]).

Under both the Uniform City Court Act and the No-Fault Law, the claimants here are entitled to have their claim decided quickly and inexpensively. Therefore this court will not transfer these [*3]matters to a regular part of the court (despite the fact that both sides are represented by counsel), absent a compelling reason to do so; which is not present in this case.

While UCCA 1804-A provides that the hearing of this matter will not be bound by the statutory provisions or rules of practice and procedure, 22 NYCRR 210.41-a (l) calls for no such relaxation during motion practice. Furthermore, because both sides are represented by counsel who are engaged in formal motion practice, this court will require that their submissions comply with the normal rules associated with formal motion practice (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Miller v County of Nassau, 2003 WL 22462114, 2003 NY Slip Op 51307 [2003]; Buell v Dolan, 2003 WL 22462177, 2003 NY Slip Op 51328 [2003]; Nuckle v Huyck, 2002 WL 484315, 2002 Slip Op 40041 [2002], Spiegel v Continental Airlines, 11 Misc 3d 145 [A] [2006]; Jackson v Deer Park Ventures, 9 Misc 3d 1123 [A] [2005]). This court is not bound in the making of this decision by the holdings of any arbitrators (Hobby v CNA Insurance, 267 AD2d 1084 [4th Dept 1999]).

Decision on the Merits

A.Claimants’ Prima Facie Case

A claimant is not required to submit a physician’s affidavit to establish medical necessity as part of its prima facie case, since medical necessity is established in the first instance by proof of submission of the claim form (All County Open MRI v Travelers Insurance, 11 Misc 3d 131 [a] [2006]). To recover first-party no-fault benefits for medical services provided to its assignor, a claimant establishes a prima facie entitlement to summary judgment by proof that it submitted a valid assignment of benefits, a claim setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Mary Immaculate Hospital v Allstate, 5 AD3d 742, 742-743 [2d Dept 2004]).

Courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim. Once the claimant has established a prima facie case, the burden shifts to the defendant to come forward with admissible evidence refuting the claimant’s evidence and demonstrating the existence of a material issue of fact (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 770 [2004]; Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

In support of its motion, Progressive submitted the following documents:

1) a New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form (NYS FORM NF-AOB) listing “ProScan” as the assignee, and Proscan Imaging as the provider of the services;

2) a copy of the Health Insurance claim form, (Form CMS-1500) dated 12/16/04, submitted by the Claimants seeking payment for 3 MRIs: code No.72141 (cervical spine); $1,100.00, code #72146 (thoracic spine); $1,20.00 and code #72148 (lumbar spine); $1,100.00, which listed Dr. Dhillon as the physician/supplier of the services, Proscan Radiology as the facility where the services were rendered and Proscan Imaging as the physician/supplier’s billing name; and

3) NF-10 Denial of Claim Form, listing Dr. Dhillon and Proscan Imaging as assignees, the amount of the claims as $3,400.00, the date of treatment as 12/07/04, [*4]date of bill as 12/16/05, date bill received by insurer as 1/3/05. The denial was based on fees not in accordance to fee schedules and lack of medical necessity based on a peer review. The denial was dated 3/18/05 and signed by Daniel R. Mack as adjuster and representative of insurer.

While the CMS-1500 form is not the statutorily required NF-3 claim form, it has been deemed its functional equivalent (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]).

In this case, the NF-10 denial form, which is admissible as an admission by Progressive, is sufficient to establish prima facie entitlement to summary judgment by claimants Dr. Dhillon and Proscan Imaging , i.e. that the assignment and claim were transmitted, that defendant received them, and that defendant failed to pay or deny the claim within 30 days of receipt [King’s Medical Supply v Country-Wide Insurance, 5 Misc 3d 767, 770 [2004]).

B.Defendant’s Medical Necessity Defense

While Progressive did submit copies of verification requests dated 1/14/05, as well as an affidavit of Georgia Pape stating that she was the adjuster on this claim, it failed to submit proof in evidentiary form (such as an affidavit of mailing) that the follow up verifications were in fact ever sent in order for the denial to be timely (Nyack Hospital v Metropolitan Property & Casualty, 16 AD3d 564 [2d Dept 2005]).

Here, the denial of claim was dated March 18, 2005, well beyond the 30 days to pay or deny the claim. Progressive’s assertion that it timely denied the claim lacks merit because the record does not contain an affidavit from a person with personal knowledge stating either that the March 18, 2005 denial of claim form was mailed, or setting forth a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (A.B. Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]). The proof submitted amounts to unsubstantiated hearsay

(Boai Zhong Yi Acupuncture v New York Central Mutual, 8 Misc 3d 1011[A] [2005]).

Mr. Pape claims to have personal knowledge of requests for verification and that the denial was timely, but provides not proof of the same; especially as to how he knows when, if ever, that Daniel R. Mack, the adjuster named on the Denial of Claim Form, mailed the documents in question (see Hospital for Joint Diseases v Nationwide Mutual Ins, 284 AD2d 374, 375 [2d Dept 2001]; Careplus Medical Supply v Travelers, 7 Misc 3d 133 [A] [2005]).

Here, the defendant has failed to offer proof in admissible form that it sought verification of the claim, or that it timely denied the claim (Summit Psychological v General Assurance, 9 Misc 3d 8, 9-10 [2005]; Delta Diagnostic v Geico, 10 Misc 3d 145 [A] [2006]). An insurer who fails to pay or deny the claim, or seek verification of the particulars of the claim-within the applicable time periods, is thereafter precluded from raising any defenses to the claim, other than lack of coverage or fraud (Metropolitan Radiological v State Farm, 7 Misc 3d 675 677 [2005]; King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]; Presbyterian Hospital v Maryland Casualty Co., 90 NY2d 274 [1997]).

Therefore, Progressive is barred from denying the claims by Dr. Dhillon and Proscan Imaging based on lack of medical necessity (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]).

However, even if Progressive could proceed on the lack of medical necessity defense, it [*5]would fail because the peer review report that it relied upon, and the subsequent affidavit provided by the chiropractor, did not provide an appropriate rationale for lack of medical necessity or explain how the MRI tests could be medically unnecessary when they did in fact yield positive findings (Nir v Allstate, 7 Misc 3d 544, 548 [2005]).

While the MRI results were provided by way of a sur-reply affidavit, such affidavits can be considered by the court where, as here, Progressive had an opportunity to reply to that submission and took advantage of that opportunity by offering further submissions of its own (Hoffman v Kessler, 28 AD3d 718 [2d Dept 2006]; Hayden v County of Nassau, 16 AD3d 415 [2d Dept 2005]),

Such scant factual basis and medical rationale will not sustain defendant’s burden of proof. Nir v Allstate, 7 Misc 3d 544, 548 [2005]). This court will not second guess a doctor who decides that a medical test is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient; especially in light of positive findings (Alliance Medical Office PC v Allstate, 196 Misc 2d 268, 270 [2003]; Nir v Allstate, 7 Misc 3d 544, 548 [2005]). Putting weight on the treating physician’s prescription serves the reasonable expectations of the insured. An insured expects coverage for treatment recommended by a physician because he trusts that the physician has recommended a reasonable treatment consistent with good medical practice; the insured’s expectations can best be fulfilled by construing the policy liberally, so that uncertainties about the reasonableness of treatment will be resolved in favor of coverage (Oceanside Medical Healthcare v Progressive, 2002 WL 1013008, 2002 Slip Op 50188 [U] [2002]).

C.The Defense that Claimants Lacked Standing

Next, Progressive has alleged that Proscan Radiology and Dr. Dhillon cannot seek payment under the assignment because they were not listed as the assignee of the benefits in this matter.

If Progressive had any concerns about who the proper claimant was or who held the valid assignment of the benefits it had to raise that objection in its original denial of claim (which it did not do) or it would be deemed waived (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]). Since Dr. Dhillon and Proscan Imaging were listed on the initial claim form, and Progressive did not question the validity of the request for reimbursement based on the assignment in its denial, it is precluded from raising that issue now as a defense (Summit Psychological PC v General Assur Co, 9 Misc 3d 8, 11 [2005]).

Progressive is correct, however, that Proscan Radiology has never put forth any proof that it has ever submitted any claim in this matter. Therefore, its claim is dismissed.

D. The Defense that Claimant is Not Licensed to Practice Medicine

Progressive is also correct that a business entity that is not licensed to practice medicine in New York cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16(a)(12), as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). Additionally, such a defense is not waived by failing to state it in the original denial of claim (AB Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]; SK Medical Services, 11 Misc 3d 1086 [A] [2006]; Metroscan Imaging v Geico, 8 Misc 3d 829, 834-835 [2005]).

In support of its claim that Proscan Imaging is not entitled to payment on this claim because it is not licensed to practice medicine in New York State, and therefore in violation of 11 NYCRR 65-3.16(a)(12), Progressive attached uncertified copies of search results from (1) the New York State Department of State, Division of Corporations, Entity Information website, which can be found [*6]at http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry, and (2) the New York State, Education Department, Office of the Professions, On-Line Business Entities Verification website; which can be found at http://www.op.nysed.gov/opsearches.htm,

This court will take judicial notice of the records kept and maintained by the State of New York and other states on their official government websites and will accept that information as an exception to the hearsay rule under CPLR Rule 4518(a), the business records exception and State Technology Law § 306 (see Miriam Osborn Memorial Home Assc v City of Rye, 9 Misc 3d 1019 [2005]; Citibank NA v Martin, 11 Misc 3d 219 [2005]; Cali v East Coast Aviation, 178 FSupp2d 276, 287 [EDNY 2001]).

Here, since Progressive has met their initial burden in showing that Proscan Imaging is not licensed to practice medicine in New York State, a prerequisite to perform and seek reimbursement for diagnostic services under the no-fault law under 11 NYCRR 65-3.16(a)(12), and Proscan Imaging having offered no proof in response on the issue, this court must dismiss its claim.

To be clear, this is not the type of matter that was decided by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). There is no allegation of fraud. This is more of the nature of a “technical” violation described by the court in Mallela, but the importance of licensed professionals performing these tests is not lost on the court.

It should be noted that (1) the New York State Department of State, Division of Corporations’ Entity Information website; (2) the State of Ohio’s Secretary of State, Corporate Database Search (http://www.sos.state.oh.us/); and (3) the New York State, Education Department, Office of the Professions’ On-Line Business Entities Verification website all show that all of the principals in Proscan Radiology and Proscan Imaging, including Dr. Dhillon, are licensed to practice medicine in New York State.

Under this type of fact pattern, fairness would seem to dictate that Proscan Imaging simply be allowed 60 days to apply, pay the required fees and be issued a license in order for it to maintain its claim, much like unauthorized foreign corporations seeking to maintain an action in New York once their corporate status is discovered in the middle of litigation (McIntosh v Ball, 247 AD2d 103, 105-106 [3d Dept 1998]). However, that type of remedy need not be addressed in this case since Dr. Dhillon has met his burden for summary judgment in this matter.

E.Defendant’s Claim of Nonconformity with the Worker’s Compensation Fee Schedules

Finally, Progressive has alleged that the fees requested for the services performed are beyond those allowed by statute. Normally, the charges for such services are limited by the fee schedules established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determine that usual procedures or unique circumstances justify the excess charge (Insurance Law § 5108 [a]).

The court will also take judicial notice that according to the controlling Official New York State Workers’ Compensation Medical Fees Schedule, effective October 1, 2003; the allowable fees for the date of service in the 14221 zip code were: # 72141 (cervical spine): $707.11; code # 72146 (thoracic spine): $771.31; and code #72148 (lumbar spine): $733.04; which are lower than the amounts being claimed here.

However, having failed to establish a timely denial of the claim, Progressive is precluded from raising its defense of nonconformity with the Worker’s Compensation fee schedules (Ultra Diagnostics v Liberty Mutual, 9 Misc 3d 97, 98 [2005], Rigid Medical of Flatbush v New York [*7]Central, 11 Misc 3d 139 [A] [2006]).

Pursuant to rule, since the fees sought are beyond the applicable fee schedule, and no unique circumstances have been claimed, Dr. Dhillon is not entitled to attorneys fees on his claim (11 NYCRR 65-4.6 [i]; Matter of the Medical Society of New York v Superintendent of Ins, 100 NY2d 854, 871 [2003]).

Conclusion

Therefore, it is hereby ordered that Dr. Dhillon is entitled to recovery of unpaid no-fault benefits for services he provided to the Progressive’s insured, and his motion for summary judgment is granted in the sum of $3,400.00, with statutory interest from February 2, 2005. Interest shall be calculated by the clerk of the court at the statutory rate of 2% per month; plus normal small claims costs and disbursements, if any. It is further ordered that Progressive’s motion for summary judgment is granted as to Proscan Imaging and Proscan Radiology.

This decision constitutes the order of this Court.

Hon. Henry J. Nowak

Buffalo City Court Judge

Dated:June 27, 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 (George J. Silver, J.), entered July 11, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny its claims within 30 days of their receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). In its opposition papers, defendant stated that it sent plaintiff timely requests for verification which tolled the 30-day period within which it was obligated to pay or deny the claims. After receiving the requested verification, defendant paid a portion of plaintiff’s bills and timely denied the remaining balance based on the ground that the fees charged by plaintiff for the services rendered were in excess of the Workers’ Compensation fee schedule. The lower court granted plaintiff’s motion for summary judgment on the ground that defendant failed to establish that it timely mailed the requests for further verification and, thus, the 30-day statutory time period within which it was required to pay or deny each claim was not tolled.

We disagree with the lower court’s finding that defendant failed to establish the timely mailing of its verification requests. In an affidavit annexed to defendant’s opposition papers, defendant’s claims examiner stated that “[i]t is [defendant’s] business practice to mail all verification requests to the address the applicant lists on the bill on the same day the verification request is generated. In compliance with that policy on the day [that] each verification request was generated: 2/25/02, 4/01/02 and 3/19/02, the verification request was mailed to [plaintiff].” In addition, unlike the affidavit of defendant’s claims examiner in the case of Contemp. Med. [*2]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]), defendant’s claims examiner further stated that he had “personal knowledge of [defendant’s] office practices and policies and [is] responsible for ensuring that they are enforced.” Defendant’s opposition papers thereby sufficiently established the timely mailing of the verification requests since the affidavit of defendant’s claims examiner was from one with personal knowledge of the standard office practice used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In view of the tolling of the 30-day period within which defendant was required to pay or deny the claims, defendant’s denials of claims were not untimely. Accordingly, plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 23, 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 February 25, 2005, deemed an appeal from a judgment of the same court, entered May 13, 2005. The judgment, entered upon the order of February 25, 2005 granting plaintiffs’ motion for summary judgment, awarded plaintiffs the principal sum of $3,947.06.

Judgment reversed without costs, order entered February 25, 2005 vacated, plaintiffs’ motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action to recover first-party no-fault benefits for health care services rendered to their assignor, plaintiffs providers established a prima facie entitlement to summary judgment by proof that they 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]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A given basis for denial of all the claims was that an investigation had revealed that the injuries alleged were not related to the subject motor vehicle accident. In opposition to plaintiffs’ motion, defendant submitted, inter alia, an accident analysis report (referred to as a “low impact study”) accompanied by an affidavit of the technical consultant/accident [*2]reconstructionist who prepared the report. Contrary to the finding of the court below, a low impact study may constitute a proper basis for a denial (see Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]), provided it is in admissible form (cf. Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment should not have been granted, and the matter is accordingly remanded for further proceedings.

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

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

I 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.
Decision Date: June 22, 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 March 16, 2005. The order granted defendant’s motion to vacate the default judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, a default judgment was entered and defendant moved to vacate same. Upon a review of the record, we find no basis upon which to disturb the lower court’s finding that defendant established both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). Accordingly, the lower court’s order granting defendant’s motion to vacate the default judgment should be affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 22, 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 (Arlene Bluth, J.), entered February 8, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $1,644.74.

Order reversed without costs, plaintiff’s motion for summary judgment denied and, upon searching the record, defendant is awarded summary judgment and complaint dismissed.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of 11 NYCRR 65-3.11 [a] and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (see Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists.]).

In the case at bar, the plaintiff’s claim form states that the treating professional was an independent contractor. Under the circumstances, plaintiff’s motion for summary judgment should be denied and, upon searching the record, summary judgment should be awarded to defendant dismissing the action (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132, supra; see generally Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996]; Murray v Murray, AD3d , 2006 NY Slip Op 02861).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: June 22, 2006

[*1]

Civil Court of the City of New York, Richmond County, June 22, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff. Bruno Gerbino & Macchia, LLP, Melville, for defendant.

OPINION OF THE COURT

Peter P. Sweeney, J.

This action to recover first-party no-fault benefits presents a novel issue. After receiving each of the disputed claims, defendant made timely requests for additional verification thereby tolling the 30-day period in which it had to pay or deny the claims. When plaintiff did not provide the verification, defendant made an additional request for the verification 28 calendar days later. When plaintiff failed to provide the verification, defendant denied the claims citing plaintiff’s failure to provide the verification as its only defense. The issue presented is whether, under these circumstances, defendant’s denials of claim, all of which were issued more than 30 days after it received the claims, were timely. The court concludes that they were not.

Factual Background

This action involves three claims for first-party no-fault benefits totaling $5,698.45 for electrodiagnostic testing of plaintiff’s two assignors. The trial of the action was scheduled for April 19, 2006. At that time, the parties waived their right to a trial and agreed to submit the matter to the court for resolution based on stipulated facts. The parties stipulated that defendant received each of the claims on February 13, 2003; that on February 25, 2003, defendant requested additional verification of each claim, i.e.—a letter of medical necessity from the referring physician; that on March 25, 2003, defendant made a second request for the same verification; that the requested verification was never provided; and that on January 26, 2004, defendant denied each of the claims citing plaintiff’s failure to provide verification as its only defense. The claim forms, an assignment of benefits for each assignor, defendant’s first and second requests for verification and defendant’s denials of claim were all stipulated into evidence.

Defendant maintains that it properly denied the claims and that it is therefore entitled to judgment dismissing the action.

Plaintiff maintains that while defendant’s initial requests for additional verification were timely and tolled the 30-day period in which defendant had to pay or deny the claims, the toll was eviscerated when defendant failed to send out a follow-up request for the additional verification within the 10-day time period specified in 11 NYCRR 65-3.6 (b). Plaintiff correctly points out that defendant mailed out the second requests only 28 days after the first requests had been [*2]mailed. Plaintiff contends that pursuant to 11 NYCRR 65-3.6 (b), defendant was required to wait at least 30 calendar days before it re-requested the verification.

Discussion

It is well settled that an insurer is required to pay or deny a claim for no-fault benefits within 30 days after the claimant provides proof of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]) and that its failure to do so will preclude it from raising most defenses to the claim (see Presbyterian Hosp. in City of N.Y., 90 NY2d at 282).

An insurer may extend the 30-day period in which it has to pay or deny a claim by making a request for additional verification of the claim “within 15 business days of receipt [of one] of the prescribed verification forms” (11 NYCRR 65-3.5 [b]; see also Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2d Dept 2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2d Dept 2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). If the verification is not provided 30 calendar days after the original request, “[a]t a minimum . . . the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail” (11 NYCRR 65-3.6 [b]).

In Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431, 432 [2d Dept 1996], lv denied 90 NY2d 802 [1997]), the Court addressed the consequences of an insurer’s failure to seek additional verification of a claim in compliance with the no-fault regulations then in effect. The defendant in that case timely requested that plaintiff provide a copy of the hospital record of its assignor as additional verification of the claim. When plaintiff did not provide the hospital record within 30 calendar days, defendant did not do any of the follow-up required by 11 NYCRR former 65.15 (e) (2), which, in relevant part, provided:

“At a minimum, if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested, either by a telephone call, properly documented in the file, or by mail.”

Although plaintiff ultimately provided the hospital record, defendant did not receive it until more than 30 days had elapsed since the claim was submitted. The hospital record indicated that plaintiff’s assignor was intoxicated at the time of accident and based on the record, defendant denied the claim asserting the intoxication of plaintiff’s assignor as a defense.

In affirming the judgment entered in plaintiff’s favor in the court below, the Appellate Division for the Second Department concluded that defendant was precluded from raising intoxication as a defense inasmuch as defendant denied the claim more than 30 days after its receipt. The Court based its decision on the principle that “[w]hen an insurance company fails to comply with its duty to act expeditiously in processing no-fault claims, it will be precluded from raising most defenses” (Presbyterian, 233 AD2d at 432 [citation omitted]). The Court reasoned that by failing to do the follow-up required by 11 NYCRR former 65.15 (e) (2), which it concluded had to be “strictly construed” (Presbyterian, 233 AD2d at 432), defendant did not act diligently in processing the claim (Presbyterian, 233 AD2d at 433 [citations omitted]).

The courts have consistently followed the holding in Presbyterian (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450[U] [App Term, 2d & 11th Jud Dists]; Bronx Med. Servs., P.C. v Windsor Ins. Co., 2003 NY Slip Op 50885[U] [App [*3]Term,1st Dept]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50140[U] [App Term, 2d & 11th Jud Dists]).

This case is not on all fours with Presbyterian or the other cases cited above. In all of those cases, when the plaintiff failed to provide the verification that had been requested, the defendant did not do any follow-up whatsoever. Here, defendant did follow up but not within the 10-day period specified in 11 NYCRR 65-3.6 (b). While defendant certainly acted more diligently in processing the claims than the defendant in Presbyterian or the other cases cited above, it did not strictly adhere to the dictates of 11 NYCRR 65-3.6 (b), nonetheless. The court must be guided by the principle that the no-fault regulations are in derogation of the common law and must be strictly construed (Presbyterian, 233 AD2d at 432; Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [2d Dept 1996]).

The clear language of 11 NYCRR 65-3.6 (b) required defendant to follow up with the plaintiff for the verification at least once in the 10-day period specified therein. This defendant clearly did not do so. The court finds that when defendant failed to follow up as required by 11 NYCRR 65-3.6 (b), the toll occasioned by defendant’s initial requests for verification dissipated ab initio. Thus, it necessarily follows that defendant’s denials of claim, all of which were issued more than 30 days after defendant received the claims, were untimely as a matter of law. Defendant was precluded from raising most defenses, including the defense asserted in each of its denials.

Having established that it submitted the claims setting forth the fact and the amounts of the loss sustained and that payment of no-fault benefits was overdue, plaintiff is entitled to judgment in the amount sued for (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]).

Accordingly, it is hereby ordered and adjudged that judgment be entered in plaintiff’s favor in the amount of $5,698.45, together with interest and attorneys’ fees as provided for under the No-Fault Law and the regulations promulgated thereunder, as well as costs and disbursements.

[*1]

Civil Court of the City of New York, Kings County, June 21, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff. Melli, Guerin & Wall, P.C., New York City, for defendant.

OPINION OF THE COURT

Arlene P. Bluth, J.

The above-captioned three cases were consolidated for trial before this court on June 5, [*2]2006. On that date, counsel for both parties stipulated to the facts set forth below, taking the joint position that what remained were issues of law. On June 12, 2006, counsel for both parties submitted briefs on the following issues: (1) May a physical therapist use a billing code found in the medicine fee schedule where such services do not appear in the physical medicine fee schedule? and (2) May a physical therapist bill for range of motion and muscle testing when an evaluation and management are billed for on the same day? After considering the parties’ stipulations and briefs, the court makes the following findings.

Findings of Fact

The three cases before this court on stipulated facts all involve claims for first-party no-fault benefits for physical therapy services rendered to plaintiff’s assignors. Defendant paid some claims and denied others, and plaintiff sued to recover the unpaid amounts. Except as noted, in all three cases the parties stipulated to plaintiff’s prima facie case and to defendant’s timely denial of the bills in question.

For the claims brought under index number 46885/05, the parties stipulated that as to the bills for assignor David Cardoza, plaintiff is entitled to judgment in the amount of $317.84 plus statutory interest, costs, and attorney’s fees. The balance of those bills, totaling $651.04, remains in dispute and were denied based on denial code 129: “This procedure is not listed in the NY state [sic] fee schedule for this provider specialty. If reported with an evaluation and management service, this procedure is inclusive.” As to the bills for assignor Ayodele Sunmola, the parties stipulated that plaintiff is entitled to judgment in the amount of $476.76 plus statutory interest, costs, and attorney’s fees. The balance of those bills, totaling $976.56, remains in dispute and were denied based on the same denial code, 129.

For the claims brought under index number 47943/05, the parties stipulated that as to the bills for assignor Avis Brown, plaintiff is entitled to judgment in the amount of $158.92, plus statutory interest, costs, and attorney’s fees. The balance of the charges, totaling $325.52 ($166.60 $158.92), were denied under denial code 129 and remain in dispute. As to the bills for assignor Tamara Reynolds, the parties stipulated that a partial payment of $45 was made, leaving a balance of $577.84. The latter charges were denied on the basis that range of motion and muscle testing cannot be billed separately from evaluation and management, and that portion of the bill remains in dispute. As to the bills for assignor Issa Vincent, the parties stipulated that plaintiff is entitled to judgment in the amount of $643.36 (portion of the bill for March 30, 2004 in the amount of $158.92 and the entire bill for April 21, 2004 for $484.44) plus statutory interest, costs and attorney’s fees. The balance of $325.52 was denied based upon denial code 129 and remains in dispute.

Finally, for the claims brought under index number 47945/05, the parties stipulated that as to the bills for assignor Orlando Simpson, plaintiff is entitled to judgment in the amount of $158.92, plus statutory interest, costs, and attorney’s fees. The balance of $325.52 was denied based upon denial code 129 and remains in dispute. As to the bill for assignor Pierre Durisile, defendant agreed to furnish plaintiff’s counsel with proof that the claimed amount of $495 was paid, and that plaintiff is entitled to judgment in full but will not collect on that bill if defendant produces a cancelled check within 45 days of the date of the stipulation. As to the bills for assignor Rhonda Moore, the parties stipulated that a partial payment of $83.32 was made, leaving [*3]a balance of $539.52. Defendant denied those charges on the basis that range of motion and muscle testing cannot be billed separately from evaluation and management, and that portion of the bill remains in dispute.

Conclusions of Law

The workers’ compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for no-fault benefits. These are contained in a volume entitled Official New York Workers’ Compensation Medical Fee Schedule. The medical fee schedule consists of seven sections: evaluation and management, anesthesia, surgery, radiology, pathology and laboratory, medicine, and physical medicine. In addition to the medical fee schedule, the book contains separate schedules appended for psychology, chiropractic, and podiatry. Each service or procedure has a CPT (current procedural terminology) code, and the codes in each section fall in consecutive numerical ranges. At the center of this dispute are the physical medicine and medicine sections of the medical fee schedule.

The workers’ compensation regulations state that the “medical fee schedule is applicable to medical, physical therapy and occupational therapy services . . . Sections containing rates for medicine, physical medicine, anesthesia, surgery, radiology, pathology and laboratory, and evaluation and management services are included.” (12 NYCRR 329.1.) In other words, the entire volume is open to use by various medical professionals (including, for example, physician assistants and nurse practitioners), as well as physical and occupational therapists. Physical therapists are not limited to any one section. The introduction to the medical fee schedule volume explains that “[t]he schedule is divided into sections for structural purposes only. Physicians are to use the sections that contain the procedures they perform, or the services they render.” (See Official New York Workers’ Compensation Medical Fee Schedule, Introduction and General Guidelines, at 1.) Clearly, the division of medical services into different sections is not to establish who can bill for a particular service but to organize those services in a logical format so that providers can easily locate the information they need.

With this in mind, the court turns to the merits of defendant’s denials. Since the parties stipulated to plaintiff’s prima facie case, it was defendant’s burden to come forward with “competent evidentiary proof” supporting its fee schedule defenses. (See Continental Med., P.C. v Travelers Indem. Co., 11 Misc 3d 145[A], 2006 NY Slip Op 50841[U] [App Term, 1st Dept 2006]; see also Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U], *2 [App Term, 2d & 11th Jud Dists 2004]; Power Acupuncture P.C. v State Farm Mut. Auto. Ins. Co., 11 Misc 3d 1065[A], 2006 NY Slip Op 50393[U], *4-5 [Civ Ct, Kings County 2006].) This defendant has not done.

The court first addresses the denials that were based on the first sentence of denial code 129, to wit, “This procedure is not listed in the NY state fee schedule for this provider specialty.” On its face, this denial makes no sense: Unlike for chiropractors, podiatrists, and psychologists, there is no fee schedule specifically designated for physical therapists. Just because most of the services physical therapists provide are included in the physical medicine section does not make that section a physical therapy fee schedule.

Even if this court were to make the leap defendant does and assume that the physical medicine section is the equivalent of a physical therapist’s fee schedule, defendant has still failed [*4]to establish that its defense has any merit. Defendant argues that it was improper for plaintiff to use CPT codes contained in the medicine section of the fee schedule. This argument is based on the assumption that the medicine section is for use by physicians only. As explained above, however, the medical fee schedule—with all seven of its component sections—applies to a host of practitioners, including physical therapists. There is simply no bar to a physical therapist using a code from the medicine section where the services performed are found there instead of in the physical medicine section. That is precisely what happened here.

There are no CPT codes in the physical medicine section directly corresponding to the range of motion and muscle testing plaintiff performed. In contrast, there are CPT codes for those services in the medicine section. Specifically, code 95831 is for “[m]uscle testing, manual (separate procedure); extremity (excluding hand) or trunk, with report” (Official New York Workers’ Compensation Medical Fee Schedule at 299) while code 95851 is for “[r]ange of motion measurements and report (separate procedure); each extremity (excluding hand) or each trunk section (spine)” (at 299). Plaintiff opted to use those codes;^[FN1] defendant argues that plaintiff should have stayed within the physical medicine section and used one of two codes contained therein: code 97750 (“Physical performance test or measurement [e.g., musculoskeletal, functional capacity], with written report, each 15 minutes” [at 311]), or code 97799 (“Unlisted physical medicine/rehabilitation service or procedure,” with a relative value to be established “By Report” submitted by the provider [at 311]). Certainly, plaintiff could have used one of these codes. But since the exact services rendered by plaintiff appear in the medicine section, plaintiff chose to use those codes instead.

Defendant’s counsel has identified no law—and this court has found none—holding that a physical therapist cannot bill under the medicine section of the medical fee schedule. This court’s plain reading of the Official New York Workers’ Compensation Medical Fee Schedule and the relevant regulations lead it to conclude that a physical therapist is permitted to use CPT codes found in any section, including the medicine section. In Introna v Allstate Ins. Co. (890 F Supp 161, 165-166 [ED NY 1995], affd 99 F3d 402 [1995]), discussed by both parties herein, the court permitted the plaintiff, a chiropractor, to use codes outside of the chiropractic fee schedule—even though there exists a separate fee schedule designated exclusively for providers of chiropractic. The court need not go that far here, as physical therapists are included within the purview of the medical fee schedule which includes both the medicine and physical medicine sections. Therefore, physical therapists may use a code from the medicine [*5]section to bill for a service not specifically listed in the physical medicine section.

The court further notes that defendant’s defense that plaintiff’s use of codes was improper is belied by the fact that defendant paid for an office visit (Oct. 2, 2002) for assignor Tamara Reynolds which was billed under CPT code 99211—a code which does not appear in the physical medicine section but rather in the evaluation and management section.^[FN2] Defendant offered no explanation as to why it is willing sometimes to accept and pay a physical therapist using a code outside the physical medicine section and at other times objects to the code and rejects the bills.

The court now addresses the other charges in dispute, namely, the range of motion and muscle testing for which payment was denied on the basis that such testing cannot be billed separately from evaluation and management.^[FN3] Having carefully considered the parties’ briefs, the court determines that this defense raises an issue of fact rather than an issue of law, and defendant has not set forth any facts in admissible form to support its argument. Defendant’s counsel is not competent to opine on whether range of motion and muscle testing is generally included in an office evaluation by a physical therapist. Defendant opted not to commission a peer review and move thereupon for summary judgment, or to proceed to a live trial at which it could present witnesses and evidence. Instead, counsel proceeded only on briefs. In the absence of any testimony by a competent medical professional, this court cannot determine whether plaintiff’s charges were medically appropriate. Since it was defendant’s burden to make out its defense, the court finds that defendant has failed to carry its burden.

The court notes that even if defendant were correct that the defense turns on a question of law, defendant has not shown any basis in law to support its defense. While defendant points out that certain fees for chiropractic treatment are included in evaluation and management sessions under the chiropractic fee schedule, it identifies no such rule in the medical fee schedule which is at issue here.

For the foregoing reasons, the court finds that plaintiff is entitled to judgment for the disputed amounts. Accordingly, the court awards judgment as follows:

Under Index Number 46885/05:

a)

For assignor David Cardoza, $968.88 ($317.84 stipulated amount plus $651.04 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Ayodele Sunmola, $1,453.32 ($476.76 stipulated amount plus $976.56 awarded herein) plus statutory interest, costs, and attorney’s fees.

Under Index Number 47943/05:

a)

For assignor Avis Brown, $484.44 ($158.92 stipulated amount plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Tamara Reynolds, $577.84 plus statutory interest, costs, and attorney’s fees.

c)

For assignor Issa Vincent, $968.88 ($158.92 and $484.44 stipulated amounts plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

Under Index Number 47945/05:

a)

For assignor Orlando Simpson, $484.44 ($158.92 stipulated amount plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Pierre Durisile, $495 plus statutory interest, costs, and attorney’s fees.

c)

For assignor Rhonda Moore, $539.52 plus statutory interest, costs, and attorney’s fees.

Accordingly, plaintiff is awarded judgment against defendant in the amounts set forth above.

Footnotes

Footnote 1: Plaintiff did not, however, bill at the physician’s rates for its services. Rather, plaintiff asserts that it multiplied the “relative value” for the services as listed on the medicine fee schedule by the conversion factor for physical therapists. (See Introna v Allstate Ins. Co., 890 F Supp 161, 164 [ED NY 1995], affd 99 F3d 402 [1995] [“Conversion factors are provider- and procedure-specific; that is, they apply only to the category of health care provider and type of treatment for which they were established”].) Thus, the charges assessed by plaintiff were lower than what a physician would have charged for the same services. Clearly, plaintiff was not trying to obtain a windfall by billing under the medicine section; it was not billing as a doctor; it was just using the code. In any event, defendant does not object to the amounts charged, only to the codes used.

Footnote 2: In its brief, plaintiff contends that defendant also paid for an office visit under code 99211 for assignor Rhonda Moore. However, neither defendant’s denials nor the parties’ stipulated facts supports this contention.

Footnote 3: It appears that these denials are based upon the second sentence of code 129: “If reported with an evaluation and management service, this procedure is inclusive.”