SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Spodek, J.), dated April 29, 2004, as denied its motion for summary judgment.

Order insofar as appealed from affirmed with $10 costs.

In this action to recover the sum of $741.03 in first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant was not, however, precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s SIU investigator was sufficient to demonstrate that defendant’s denial was based [*2]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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

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 disagree 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: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered March 10, 2004, which granted defendant’s motion, inter alia, to vacate a default judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered
to plaintiffs’ assignors, a default judgment was entered against defendant. A motion to vacate a default judgment is addressed to the sound discretion of the motion court and the court’s determination “will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered February 27, 2004, which granted defendant’s motion to vacate a default judgment.

Order unanimously affirmed without costs. [*2]
In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, a default judgment was entered against defendant. A determination vacating a default “rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered December 16, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

Plaintiff health care provider commenced this action to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. Upon a review of the record, we find that plaintiff established 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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the alleged injuries did not arise out of a covered accident ([*2]see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 2004 NY Slip Op 24482 [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Patterson, J.P., 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 disagree 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: May 19, 2005

[*1]

District Court of Nassau County, Third District, May 13, 2005

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City, for defendant. Israel, Israel & Purdy, LLP, New York City, for plaintiff.

OPINION OF THE COURT

Scott Fairgrieve, J.

The defendant moves for an order pursuant to CPLR 3042 (c) compelling the plaintiff to respond to the defendant’s demand for a bill of particulars and for an order pursuant to CPLR 3124 compelling the plaintiff to produce a witness for examination before trial, or, in the alternative, to strike the plaintiff’s pleadings for noncompliance. The plaintiff opposes the defendant’s motion.

The defendant’s motion to strike the plaintiff’s complaint for plaintiff’s failure to respond to the defendant’s demand for a bill of particulars is denied as moot, as the plaintiff has since answered the defendant’s bill of particulars. Moreover, contrary to the defendant’s assertion in its reply affirmation, the court finds said responses to be sufficient.

The defendant also seeks to dismiss the plaintiff’s complaint upon the failure of the plaintiff’s treating physician to appear for an examination before trial (EBT).

The court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v Pei-Fei Lee, M.D. P.C., 192 AD2d 1008 [3d Dept 1993]).

UDCA 1101 (a) requires that the Nassau County District Court adopt all of the procedures set forth in the CPLR with regard to disclosure. [*2]

CPLR 3101 states, in pertinent part, that:

“(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:

“(1) a party, or the officer, director, member, agent or employee of a party;

“(2) a person who possessed a cause of action or defense asserted in the action . . . .”

Accordingly, pursuant to CPLR 3101 (a), in the Nassau County District Court there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” (Emphasis added.) The words “material and necessary” should be interpreted liberally to “require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test [to determine if the information sought is material and necessary] is one of usefulness and reason” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also U.S. Ice Cream Corp. v Carvel Corp., 190 AD2d 788 [2d Dept 1993]). The term “necessary” has been construed to mean “needful” rather than “indispensable” (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968], supra). “If there is any possibility that the information [was] sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence material . . . in the prosecution or defense’ ” (Matter of Comstock, 21 AD2d 843, 844 [4th Dept 1964]). However, the Allen case makes clear that disclosure extends to all relevant information calculated to lead to relevant evidence not just information that can be used as evidence-in-chief (see, CPLR 3101; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:7, at 18, citing West v Aetna Cas. & Sur. Co., 49 Misc 2d 28 [1965], mod 28 AD2d 745 [3d Dept 1967]; see also Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]). “If the data elicited is within the broad scope of CPLR 3101 (a) as construed in the Allen case, the excursion should be called a ‘relevant inquiry’. That would leave [the term] ‘fishing expedition’ to describe the inquiry that goes beyond that extended compass” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:8, at 19). Furthermore, matters relating to disclosure lie within the broad discretion of the trial court, as it is in the best position to determine what is material and necessary (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968], supra; see also, Andersen v Cornell Univ., 225 AD2d 946 [3d Dept 1996]).

Applying the principles established in the Allen case to the issue of an insurance carrier’s right to an EBT of a medical provider in a no-fault case, the court finds that, provided certain conditions are met by an insurance carrier, the carrier is entitled to an EBT of a medical provider. The Court of Appeals has clearly held that, pursuant to the no-fault regulations, in a case in which no additional verification is timely sought, an insurance carrier must pay or deny a claim of no-fault benefits within 30 days from the receipt of a claim or be precluded from interposing a defense to the denial of the claim, with limited exceptions (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., [*3]90 NY2d 274 [1997]). In the case of a defense of “medical necessity,” the courts have held an insurance carrier is precluded from raising a defense of “medical necessity” where the denial was not timely and that summary judgment in favor of the medical provider is appropriate in such situations, provided the plaintiff submits proper proof of the claim and the amount of the loss (see, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997], supra; Howard M. Rombom, Ph.D., P.C. v Interboro Mut. Indem. Ins. Co., 186 Misc 2d 847 [App Term 2000]). Thus, when the insurance carrier has failed to issue a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible on any defense, except if the insurance carrier’s defense falls within limited exceptions. The limited exceptions set forth in the Presbyterian case are where untimely denials are of no consequence because the insurer is not required to pay the claim and where the claim is ultimately deemed invalid (see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], supra). Such situations include, inter alia, fraud and a lack of coverage defense based upon a belief that the alleged injury does not arise out of the insured accident (see, Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]).

If an insurance carrier has made a timely denial, based upon “medical necessity,” then its objective in seeking an EBT of the medical provider is not a means of harassing the medical provider, but rather the insurance carrier is trying to obtain relevant information on its defense of “medical necessity.” Certainly in cases where an insurance carrier timely denied the no-fault claim, based upon the ground of “medical necessity,” the carrier is entitled to explore why the medical provider or treating physician determined the treatment to be necessary. However, if an insurance carrier seeks an EBT of a medical provider, to inquire about the “medical necessity” of the treatment provided to the plaintiff’s assignor, when the insurance carrier has failed to timely deny the medical provider’s claim, such failure will preclude an EBT of plaintiff and any other defenses not raised. The defendant must satisfy the following standard expressed in Socrates Psychological Servs., P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 642, 654 [Civ Ct, Queens County 2005]) which, in relying on Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [2005]), stated:

“[T]he lodestar for determining a no-fault first-party benefits case is the denial of claim, the NF-10. To avoid a plaintiff’s successful motion for summary judgment, an insurer must state, with a high degree of specificity, in its NF-10, any applicable defense, except for fraud (presently defined only as a staged accident) or lack of coverage, and must stand or fall upon those defenses. If not raised in a timely fashion and with specificity, those defenses will not be entertained later, no matter how meritorious they may be in substance (Metropolitan Radiological, [7 Misc 3d 675] [2005], supra [citing cases]; see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]; Socrates Psychological Servs., P.C. v Lumbermans Mut. Cas. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50690[U] [App Term, 1st Dept 2004] [per curiam]).”

The court in Metropolitan Radiological continued that the NF-10 is the only appropriate yardstick for measuring a discovery device’s propriety, not a perusal of any number of the “separate and complete” or “separate and distinct” affirmative defenses contained in the defendant insurer’s answer. The court stated:

“In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and was done so timely . . .

“Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.” (Metropolitan Radiological, 7 Misc 3d at 679.)

The reasoning of Metropolitan Radiological applies equally to the present situation of the appropriate scope of an EBT. This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10. The four corners of the denial of claim form, the NF-10, and defenses there stated with a high degree of specificity (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]) should yield the examining attorney at an EBT with sufficient and fertile avenues of disclosure.

In the instant case, neither party addresses the issue of whether the defendant has issued a timely denial and the basis for denial of plaintiff’s claim.

Accordingly, the defendant’s motion is denied.

[*1]

Civil Court of the City of New York, New York County, May 12, 2005

APPEARANCES OF COUNSEL

Moore & Associates, New York City (Michael L. Rappaport of counsel), for defendant. Leon Kucherovsky, New York City (Matthew Viverito of counsel), for plaintiff.

OPINION OF THE COURT

Ellen Gesmer, J.

Plaintiff brings this action to recover $1,791.73 under the No-Fault Law for MRIs that it allegedly performed on its assignor, Olga Papirova. Defendant Travelers Insurance Company moves for summary judgment on the grounds that (1) plaintiff lacks standing to assert the claim because the doctor who performed the MRIs was an independent contractor on whose behalf the plaintiff may not submit a claim, and (2) the MRIs were not medically necessary. Plaintiff [*2]opposes the first claim on the grounds that defendant waived this argument by failing to raise it in a timely denial. Plaintiff opposes the second claim on the grounds that, since it is a radiology facility, it need not prove the medical necessity of the tests administered. For the reasons set forth below, the court grants defendant’s motion on the grounds that it has satisfactorily shown that the MRIs were not medically necessary.

The court’s function on a motion for summary judgment is issue finding rather than issue determination. (Brown v Achy, 9 AD3d 30, 33 n 2 [1st Dept 2004], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].) The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vitiello v Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998].) Once the movant has offered sufficient proof to establish a prima facie case, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)

To establish its first argument, defendant points out that the MRIs were performed by Dr. Ravindra Ginde who, as plaintiff acknowledges, is an independent contractor and not an employee of plaintiff. Defendant then argues, based on an informal opinion of the Department of Insurance dated February 21, 2001, that plaintiff may not seek reimbursement for Dr. Ginde’s services since a professional medical corporation may only bill for services rendered by an employee. (See also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444, 445 [Civ Ct, Queens County 2004].) However, since this defense does not assert either noncoverage or insurance fraud by the assignor, the defense is waived unless asserted in a timely denial. (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 283 [1997]; A & S Med. P.C. v Allstate Ins. Co., 15 AD3d 170, 171 [1st Dept 2005]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999]; A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U] [App Term, 1st Dept 2004].) Since defendant did not raise this defense in its denial of plaintiff’s claim, defendant waived the defense and the court may not grant summary judgment for defendant on this issue.

I now turn to defendant’s defense of lack of medical necessity, which defendant properly raised in a timely denial. Defendant supports its defense with the affirmed peer review report of Dr. Arthur Bernhang. (See A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U] [App Term, 1st Dept 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U], *1 [App Term, 2d & 11th Jud Dists 2004]; S&M Supply, Inc. v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2003].) Dr. Bernhang concluded that the MRIs performed on plaintiff’s assignor were not medically necessary. He noted that Ms. Papirova was pregnant at the time of the motor vehicle accident on January 25, 2002. He further pointed out that, when she was examined on February 13, 2002, Dr. St. Hill, the examining doctor, had recommended that [*3]her spine should be x-rayed after she gave birth. Dr. Bernhang found that, contrary to the recommendation, Ms. Papirova did not undergo spinal x-rays after she gave birth. He also noted that she did not have a neurological examination after she gave birth, which would have indicated whether the neurological symptoms found by Dr. St. Hill were attributable to the pregnancy or to the accident. Absent x-rays and a follow-up neurological exam, Dr. Bernhang found that the MRIs were not medically necessary. This finding is sufficient to shift the burden to plaintiff to show that the MRIs were in fact medically necessary. (Alvarez v Prospect Hosp., 68 NY2d at 324.) If plaintiff fails to meet its burden, defendant’s proof may entitle it to summary judgment in its favor. (Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d & 11th Jud Dists 2003].)

In response, plaintiff has not submitted any documentation in admissible form (or indeed, any documentation at all) to establish that the services rendered were medically necessary. Instead, plaintiff relies on the decision in West Tremont Med. Diagnostics, P.C. v GEICO (8 Misc 3d 423 [Civ Ct, Richmond County, McMahon, J.]) to support its argument that it cannot be deprived of compensation, even if the insurer establishes that the services performed were not medically necessary, because, as a radiological facility, plaintiff “merely fills referrals.” Respectfully, the court disagrees with the conclusion in West Tremont Med. and rejects plaintiff’s argument.

Under the No-Fault Law, individuals are entitled to be compensated for “basic economic loss” resulting from injuries caused by the operation of a motor vehicle. (Insurance Law § 5101 et seq.) “Basic economic loss” is defined to include “all necessary expenses” for medical services. (Insurance Law § 5102 [a] [1]; 11 NYCRR 65-1.1.) Consistent with that, when a claimant, or its assignee, makes a claim, an insurer may deny it on the grounds that the services rendered are not medically necessary. (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 202; Country-Wide Ins. Co. v Zablozki, 257 AD2d at 507; A.B. Med. Servs. v CNA Ins. Co., 1 Misc 3d 137[A], 2004 NY Slip Op 50061[U], *1; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U].) Neither the statute, the regulations nor the courts have recognized any exception to this requirement, apart from West Tremont. Consequently, apart from that decision, there is no support for the proposition that a medical provider may be reimbursed for a service which is not medically necessary, and that MRIs, or any other form of medical treatment, are exempt from the requirement that they be medically necessary in order to be eligible for reimbursement.

In West Tremont, which was decided after trial, the court found that the defendant’s expert testified unequivocally that “the MRIs were performed unnecessarily.” (West Tremont at 425.) Notwithstanding that finding, the court held that defendant had not met its burden of proof to establish that the MRIs were medically unnecessary. In reaching this anomalous conclusion, the court cited the testimony of defendant’s expert who testified that plaintiff diagnostic center was “not the entity that determines what test is necessary for the patient to undergo.” (Id. at 427.) The court then went on to hold that the defense of medical necessity “should not be available” against the plaintiff since it “does not make an independent medical evaluation of the patient.” (Id. at —, 2005 NY Slip Op 25176 at *3.) The court held that this result is consistent with “the purpose and intent of the Insurance Law no-[*4]fault benefits statute which is expedient payment of benefits to automobile accident victims.” (Id.) This court respectfully disagrees with this result.

In reaching its conclusion, the West Tremont court violated two fundamental rules of statutory construction. First, “[w]here words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 76.) When construing statutes, the court’s job is to ascertain and give effect to the legislative intent, but the “intention of the Legislature is first to be sought from a literal reading of the act itself.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b].) The no-fault statute is clear and unambiguous: claimants may only be reimbursed for “necessary” medical services. (Insurance Law § 5102 [a] [1].) In light of the clarity of the statute, “there is no occasion to resort to other means of interpretation.” (Di Marco v Hudson Val. Blood Servs., 147 AD2d 156, 158 [1st Dept 1989]; Roth v Michelson, 55 NY2d 278, 283 [1982] [statute to be interpreted literally, in the absence of ambiguity]; People v Ayala, 142 AD2d 147, 161 [2d Dept 1988] [explanation is superfluous in the absence of ambiguity].) Therefore, the West Tremont court had no reason to look to legislative history or the legislative purpose to interpret the statute. It should have simply recognized that the defense of medical necessity is available against all medical providers.

Secondly, the West Tremont decision discusses only one aspect of the statutory purposes and ignores the rest. While it is true that the No-Fault Law was adopted in order to expedite the processing of claims, the prevention of fraud and “widespread abuse” was also a major concern. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862 [2003].) To permit medical providers to receive reimbursement even when the insurer has proven that the service provided was not medically necessary would encourage fraud, rather than combat it. Thus, this construction would cause “objectionable results” in violation of the court’s obligation to avoid results which would cause “injustice, mischief, or absurdity.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 141.) In fact, the construction urged by plaintiff would require insurers to pay for MRIs of the entire spine when the insured suffered a broken toe, or for full body scans for broken arms; indeed, insurers would have to pay for all radiological testing, no matter how unrelated to the insured’s injuries. Plaintiff’s analysis would also require insurers to pay for all medical supplies, since medical suppliers, like radiology facilities, do not “make an independent medical evaluation of the patient.” This result would be absurd and in total derogation of the statute.

At oral argument, plaintiff’s counsel argued that requiring radiology providers to rebut a showing of lack of medical necessity would place an impossible burden on them. The court disagrees. At worst, the problem is one of cost rather than impossibility; the provider is free to retain a doctor to submit an affirmation as to the medical necessity of the treatment rendered. Moreover, having recognized the problem, there are a variety of ways in which a radiology facility could protect itself. For example, it might require an affidavit of medical necessity from the referring doctor, in addition to a prescription, as a condition for accepting an assignment of benefits from the patient. But given the clarity and lack of ambiguity in the statute, the problem, [*5]if there is one, cannot be solved by the courts, since it is our obligation simply to enforce the plain language of the statute.

For these reasons, the court refuses to follow the holding in West Tremont. Instead, the court will follow the well-established rule that the failure of the medical facility to rebut the insurer’s showing that the service provided was not medically necessary requires denial of reimbursement. (Alvarez v Prospect Hosp., 68 NY2d at 324; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U], *2 [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822, 825 [Civ Ct, Kings County 2005].)

Accordingly, defendant’s motion for summary judgment is granted.

District Court of Nassau County, Third District

5010/03

Sondra K. Pardes, J.

Chief Judge Kaye recently noted that the Legislature enacted the Comprehensive “Automobile Insurance Act”… – commonly known as the No-Fault Insurance Law-with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts.” (see, Pommells v Perez, NYLJ 4/29/2005, at 18, cols 1-6, at 19 cols 1-3). The instant case, is but one of a myriad of cases that demonstrate the lengths to which parties are willing to go to defeat the objectives of this legislation.

PROCEDURAL HISTORY

This is an action for recovery of No-Fault Insurance benefits for medical treatment provided on September 11, 2002, in the amount of $543.04. The plaintiff commenced this action by service of the summons and complaint on June 19, 2003. Issue was joined on July 18, 2003. The plaintiff served discovery demands dated July 25, 2003 and the defendant responded to those demands on February 26, 2004.

The defendant filed a Notice of Trial and Certificate of Readiness for Trial on [*2]June 4, 2004. The plaintiff filed a motion to strike the defendant’s Notice of Trial on

INDEX NO. 5010/03

June 18, 2004, on the grounds that the Notice of Trial was premature and improper in that in that the defendant failed to adequately and completely respond to the plaintiff’s discovery demands.

The defendant failed to respond to the plaintiff’s motion to strike the Notice of Trial. The motion was submitted without opposition on July 12, 2004. On July 16, 2004 this court, (Marber, J.), directed the parties to appear for a discovery conference on September 30, 2004.

On September 30, 2004 plaintiff’s motion to strike the Notice of Trial, the motion was submitted without opposition once again. On October 27, 2004, this court, (Anzalone, J.), issued an Order directing the parties to appear for a discovery conference to be held on December 9, 2004 to address the issues raised in the plaintiff’s motion. On November 23, 2004 the plaintiff moved for summary judgment. The conference scheduled for December 9, 2004 was adjourned to January 3, 2005, at the request of the plaintiff.

The defendant’s affirmation in opposition to the plaintiff’s summary judgment motion did not address the substantive issues raised in plaintiff’s motion papers. Counsel only asserts that the Notice of Trial was served June 2, 2004 and had not been vacated and therefore, pursuant to CPLR 3212, the plaintiff’s motion for summary judgment should be denied as untimely.

This court directed counsel for both parties to appear for a conference on March 7, 2005. On that date the parties agreed to resubmit the plaintiff’s motion to Strike the Notice of Trial and the plaintiff’s motion for summary judgment to be decided together. The motions are decided as follows.

MOTION TO STRIKE THE NOTICE OF TRIAL

The Plaintiff’s motion to strike the defendant’s Notice of Trial was repeatedly submitted without opposition from the defendant. Accordingly the motion is granted.

MOTION FOR SUMMARY JUDGMENT

In order to make a prima facie showing of entitlement to summary judgment in a No-Fault Insurance action, a medical provider must submit evidentiary proof that it submitted the appropriate claim forms and that the forms were received by the insurer. (see, Damadian MRI in Elmhurst v Liberty Mutual, 3 Misc 3d 128 [A], [App Term 9th and 10th Jud Dist, 2003]). Once a prima facie showing has been made, the burden shifts to [*3]the opposing party to produce evidentiary proof to establish the existence of material issues of fact. (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]).

INDEX NO. 5010/03

In the instant case it is uncontroverted that the plaintiff submitted claims for medical treatment to the defendant and the claims were received in November of 2002. Partial payment was made and the balance denied on each claim within the time prescribed by statute. (see, 11 NYCRR 65-3.5[a]). In each case the defendant indicated on the Denial of Claim form, “code changed to reflect level -of service” and paid a lower fee associated with the new code. The plaintiff asserts that the denials were issued “without a sufficiently detailed factual basis and medical rationale” for the claims’ rejection, i.e. without any explanation for the determination to change the CPT codes. The plaintiff argues that these denials are ineffectual under the rationale articulated in Amaze Medical Supply Inc. v Eagle Insurance Co., 3 Misc 3d 128 [A]; (App Term, 2nd and 11th Jud Dist, 2003).

In opposition to the motion for summary judgment counsel for the defendant states that this motion should be denied because it was submitted more than 120 days after the service of the Notice of Trial and “the Notice of Trial has not been vacated”. The defendant did not respond to the substance of the plaintiff’s motion for summary judgment. The defendant’s affirmation in opposition was dated December 8, 2004. On that date the defendant was clearly aware that a motion to strike the Notice of Trial had been submitted on June 18, 2004, 16 days after the Notice of Trial was served. The defendant was also aware that motion had been adjourned repeatedly, apparently with consent of both counsel, and no decision had yet been rendered when the motion for summary judgment was filed. Moreover, at a conference held on March 7, 2005, the court pointed out the defendant’s failure to oppose the motion to strike the Notice of Trial and its failure to offer any substantive opposition to the motion for summary judgment. Nevertheless, the defendant agreed that both motions be submitted on that date.

Inasmuch as the court has granted the plaintiff’s motion to strike the Notice of Trial, the court finds that the plaintiff’s motion for summary judgment is not untimely pursuant to CPLR 3212. In addition the court concurs with the plaintiff that the defendant’s determination to change the CPT codes with respect to the claims in question and to pay reduced fees not supported by a peer review or any other proof “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” are ineffectual (see, Amaze Medical Supply, supra 2003 WL 23310886, 1) . Finally, the defendant has failed to come forth with any evidentiary proof of a triable issue of fact requiring trial. [*4]

INDEX NO. 5010/03

Accordingly, the plaintiff’s motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against th defendant in the sum of $543.04, plus interest at the rate of 2% per month from June 19, 2003, plus attorney fees of 20% thereof, (attorney fees not to exceed $850.00), plus costs and disbursements of this action.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: May 9, 2005

CC:Israel, Israel & Purdy, LLP

Serpe, Andre & Kaufman

SKP:rad

Civil Court of the City of New York, Kings County

63796/2003

Milagros A. Matos, J.

Facts

Plaintiffs medical providers A.B. MEDICAL SERVICES P.L.L.C. (“A.B. Medical”), LVOV ACPUNCTURE P.C.( “LVOV”), and SOMUN ACUPUNCTURE, P.C. (“Somun”), Assignees of SERGEY MINHUK, instituted this action to recover first party no-fault benefits from defendant insurer NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY (“insurer”). LVOV and Somun were denied payment by defendant insurer for acupuncture treatments performed on the patient/insured Sergey Minhuk. The claims for unpaid acupuncture services by LVOV and Somun were settled at trial, and the actions by LVOV and Somun were discontinued against defendant insurer.

A.B. Medical was denied payment by defendant insurer for psychotherapy sessions and neurological testing performed on the patient/insured Sergey Minhuk. The patient was injured in an automobile accident on May 25, 2002. In June and July, 2002, Dr. Jeffery Schwartz, a doctor at A.B. Medical, examined the patient and conducted Electromyography and Nerve Conduction Velocity (EMG/NCV) tests and Somatosensory Evoked Potential (SSEP) tests to determine whether the patient suffered nerve injury from the accident. In July and August, 2002, Dr. Alexander Braver, a doctor at A.B. Medical, performed psychotherapy sessions on the patient.

At the time the services were rendered, the patient Sergey Minhuk was insured under a no-fault insurance policy issued by defendant. The no-fault benefits were properly assigned to A.B. Medical, who submitted claim forms to defendant totaling $6,150.11. Defendant insurer made a partial payment to A.B. Medical in the amount of $1972.08 due to a late denial of claim, leaving a balance of $4,187.03. Defendant denied the remaining claims based upon a denial form and peer review report stating that the sessions and tests were not medically necessary. Before trial the parties stipulated that the only issue for determination by the court was whether the diagnostic testing was medically necessary as defined by Insurance Law § 5102[a][1], and [*2]thus whether or not defendant properly denied payment of the claim. The bills at issue are as follows:

Psychotherapy

8/7/02 bill for diagnostic interview ($218.35) performed on 5/30/02 and 8 psychotherapy sessions ($960.00) performed on 5/31/02-7/31/02 totaling $1,178.35;

7/23/02 bill for a psychotherapy session performed on bill date for $156.32;

9/17/02 bill for 2 psychotherapy sessions performed on 8/7/02 and 8/14/02 totaling $240.00;

Neurology

8/12/02 bill for SSEP testing performed on 6/13/02 totaling $604.24;

8/13/02 bill for EMG/NCV, motor nerve and reflex testing performed on 7/11/02 totaling $1,999.12.

The court conducted a full trial of this matter on March 22, 2005. At trial, both sides presented the testimony of physicians. For the psychotherapy bills, defendant presented Dr. Martin Lipschutz, the doctor that had authored the peer review report upon which the denial was based. Dr. Lipschutz testified that the psychotherapy sessions were not medically necessary due to insufficient information on file justifying ongoing psychotherapy sessions. Plaintiff did not present a witness on the psychotherapy bills, but claimed that Dr. Lipschutz did not adequately review available records to determine lack of medical necessity.

For the Neurology bills, defendant presented Dr. Peter Gastaldi, a chiropractor. He found that the tests were medically unnecessary because the treating doctor provided no objective or subjective findings warranting neurological testing for this patient. Plaintiff presented Dr. Jason Schwartz, the treating neurologist. Dr. Schwartz testified that EMG/NCV testing and SSEP testing is appropriate when there is a diagnostic suspicion of further nerve damage and also to localize such damage.

Discussion

At trial, defendant must establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services in order to sustain its burden of proof. (Nir v. Allstate Ins. Co., ___ NY2d___, 2005 WL 562739 [Civ Ct, Kings County 2005]; see also Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 2004 NY Slip Op 24034 [Civ Ct, Kings County 2004]; Inwood Hill Medical P.C. v. Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U][Civ Ct 2004].) Defendant’s medical rationale may be insufficient if not supported by evidence of the “generally accepted medical/professional practice.” (Nir v. Allstate Ins. Co., supra.) “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., 3 Misc 3d at 616, supra.)

1. Psychotherapy sessions

Defendant’s peer review doctor, Dr. Lipschutz, testified that the limited information [*3]presented by patient’s treating physician did not justify the need for a psychiatric referral. Dr. Lipschutz testified that the psychotherapy was unwarranted because of A.B. Medical’s “generic” paperwork, which lacked sufficient details of the accident, patient’s symptoms, social factors behind treatment, or objective findings by the treating physician. On cross examination, plaintiff showed that A.B. Medical’s paperwork detailed the accident, the patient’s psychiatric history, current medical condition, medications, social history, results of the physical examination, and diagnosis. Dr. Lipschutz could not support his assertion, that plaintiff’s paperwork was inadequate and therefore psychotherapy sessions were medically unnecessary, with any evidence that plaintiff’s paperwork deviated from generally accepted practice, standards, or values in the field. Therefore, Dr. Lipschutz’ opinion and defendant’s medical rationale to deny payment for lack of medical necessity are insufficient to sustain defendant’s burden of proof.

Even if this Court were to find that Dr. Lipschutz’ opinion was properly supported by evidence of generally accepted practice, his opinion would hold little weight. The short period of time invested, 25 minutes, to review records, come to a conclusion, and complete a report reveals that Dr. Lipschutz did not sufficiently consider the medical necessity of the services provided to the patient. Dr. Lipshutz testified that he reviewed 14 records in preparing his peer review report, including: initial consultation reports, psychotherapy session notes, rehabilitation evaluations, the treating physician’s evaluation, a police accident report, a letter of medical necessity, a narrative report regarding psychological testing, a psychological evaluation, a prescription for medical supplies, MRIs of the right knee, lumbosacral spine, and cervical spine, and electrodiagnostic study reports. He testified that in less than 25 minutes he reviewed the above-mentioned records, came to a conclusion as to the medical necessity of the patient’s psychotherapy sessions, and wrote an extensive three-page peer review report. Plaintiff asserted and this Court agrees that this amount of time is insufficient to carefully determine and detail that a patient does not need the medical services provided by the treating doctor.

Finally, Dr. Lipshutz testified that the psychiatric evaluation performed on 5/30/02 may have been performed by an unlicensed social worker, not a psychiatrist. Although an unlicensed master’s level clinician may not perform psychotherapy sessions, even if supervised by the licensed psychologist (See NYS Educational Law §§ 7600-7606), Dr. Lipschutz’ could not definitively testify that this was the case. On cross-examination, Dr. Lipschutz testified that he did not know what degree of involvement Dr. Braver, the treating psychologist, had in the evaluation. Therefore, defendant could not properly deny payment for the 5/30/02 psychiatric evaluation on that basis.

2. Neurological testing

Defendant offered the testimony of its expert witness, Dr. Gastaldi, a chiropractor. He testified that the electrodiagnostic testing performed by plaintiff would not have served to substantiate the doctor’s findings from the initial physical examination of the patient. Dr. Gastaldi testified that it is generally accepted medical practice to utilize electrodiagnostic testing only to determine whether an injury to a nerve exists and nerve damage had already been diagnosed for this patient. Therefore, the doctor testified, the electrodiagnostic tests were medically unnecessary. [*4]

Plaintiff’s witness Dr. Schwartz, the patient’s treating doctor, rebutted the peer review doctor’s testimony with contrary evidence of generally accepted practice with regard to the use of electrodiagnostic testing. He testified that EMG/NCV and SSEP testing may be utilized even if there is no “diagnostic dilemma.” The plaintiff’s doctor testified that, according to generally accepted medical practice, this testing does not only confirm a doctor’s suspicions of possible nerve damage, but may also assist in localizing the nerve injury.

Contradictory positions have been raised by the testifying witnesses supported by their own testimony of generally accepted medical practice. If the plaintiff medical provider offers evidence that its medical services were consistent with generally accepted medical practice, the defendant insurer may fail to sustain its burden of proof at trial. (Nir v. Allstate Ins. Co., ___ NY2d___, 2005 WL 562739 [Civ Ct, Kings County 2005]; see also Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [Civ Ct 2003].) Plaintiff has offered convincing evidence that the electrodiagnostic testing in this case was utilized to confirm diagnostic suspicions and localize nerve injury. In the face of such evidence, “[I]t is not for a judge to second-guess a doctor who decides that a medical test is necessary for his diagnosis and treatment.” (Alliance Medical Office, P.C. v. Allstate Ins. Co., 196 Misc 2d 268, 2003 NY Slip Op 23633 [Civ Ct, Kings County 2003]; see also Citywide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 2004 NY Slip Op 24034 [Civ Ct, Kings County 2004].) Defendant’s witness Dr. Gastaldi testified that certain testing listed on plaintiff’s 8/13/02 bill was redundantly billed. Dr. Gastaldi testified that the motor nerve testing, already included in the 8/13/02 bill under one No-fault billing code category, was separately billed under another category, and therefore plaintiff’s bill charged $425.88 in excess. This testimony was not controverted by plaintiff. Plaintiff’s bill of 8/13/02 for $1,999.12 is reduced by $425.88.

Conclusion

Based on the evidence, the Court concludes that defendant did not sustain its burden of proof for the lack of medical necessity of psychotherapy sessions and neurological testing provided to the patient, except for neurological testing redundantly billed on 8/13/02. Plaintiff’s total claim in the amount of $4,187.03 is therefore reduced by $425.88.

Judgment should be entered for the plaintiff in the amount of $3,761.15, plus interest and attorneys’ fees as provided by the Insurance Regulations, together with the statutory costs and disbursements of this action.

This constitutes the Decision and Order of this Court.

Dated: April 29, 2005_________________________

Milagros A. Matos, J.C.C.