[*1]

Goldberg, Miller & Rubin, P.C., New York (Timothy R. Bishop of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered December 20, 2018, which denied plaintiff’s motion for summary judgment declaring that defendants JS Medical, P.C. and Wert Specialty Orthopedics, P.C. (together, defendants) have no right to collect no-fault benefits from plaintiff with respect to the subject accident, and granted defendants’ cross motion for summary judgment to the extent of dismissing the complaint as against JS, unanimously reversed, on the law, without costs, plaintiff’s motion granted and defendants’ motion denied, and it is declared that defendants have no right to collect said no-fault benefits.

The claimants’ failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d 567 [1st Dept 2019]). This is so notwithstanding plaintiff’s failure to present proof of proper delivery of the denials (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Plaintiff is entitled to summary judgment on the additional ground that defendants failed to appear at two scheduled EUOs (see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600 [1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 [1st Dept 2016], appeal withdrawn 29 NY3d 995 [2017]). Considering the brevity of the delay and JS’s ultimate failure to appear, we find that plaintiff’s “one-day tardiness in issuing its follow-up request for the EUO scheduled for” JS was “a technical defect excusable under 11 NYCRR 65-3.5 (p)” (Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Concur—Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, NY (Shaakee Bhuiyan of counsel), for appellant.

Baker & Cantin, P.C., Rego Park, NY (Elyse Ulino of counsel), for respondent.

In an action to recover first-party no-fault benefits for medical services rendered, the defendant appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 20, 2019. The order denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, a New Jersey medical provider, commenced this action to recover first-party no-fault benefits against the defendant, an insurance company, alleging it provided medical services to an individual (hereinafter the insured) who was injured in a motor vehicle accident and insured by the defendant. The plaintiff also alleged that the insured assigned first-party no fault benefits to it but that the defendant had failed to pay for the medical services provided by the plaintiff to the insured. The defendant moved, inter alia, for summary judgment dismissing the complaint, contending that the claimed expenses were not medically necessary and that the claim for one particular expense was not reimbursable under the applicable New Jersey medical fee schedule for Automobile Insurance Personal Injury Protection and Motor Bus Medical Expense Insurance Coverage (see NJ Admin Code § 11:3-29.5). The parties agree that because the medical services were provided in New Jersey, the New Jersey fee schedule applies. By order entered June 20, 2019, the Supreme Court denied the motion. The defendant appeals, and we affirm.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

Here, the defendant made a prima facie showing that the services provided were not medically necessary and that the disputed surgical device was not reimburseable by submitting, inter alia, a peer review report, an independent medical examination report, and medical documentation (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722, 723 [2016]). In opposition, however, the plaintiff submitted an expert affidavit opining as to the medical necessity of the services based on, among other things, MRI results and findings made during the surgical procedure at issue. These submissions raised a triable issue of fact as to medical necessity (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d at 723; Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp., 58 Misc 3d 145[A], 2017 NY Slip Op 51951[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The plaintiff also raised a triable issue of fact as to whether the disputed device qualified for reimbursement under New Jersey Administrative Code § 11:3-29.4 (f) (8).

Accordingly, we agree with the Supreme Court’s determination denying the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Chambers, Duffy and Barros, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Daniel J. Tucker (Matteo G. Sandusky of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to, in effect, hold the proceeding in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by deleting the provision thereof granting the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law, in accordance with this decision.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff asserted five causes of action based on five claims and moved for summary judgment thereon. Defendant cross-moved for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and directing that, in the event plaintiff fails to file proof with the court of such an application to the Workers’ Compensation Board within 90 days of the date of the court’s order, defendant would be granted summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been [*2]injured during the course of his employment. By order entered February 15, 2017, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]).

In light of the foregoing, the Civil Court properly granted the branches of defendant’s cross motion seeking, in effect, to hold the first through fourth causes of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law; however, instead of denying plaintiff’s motion for summary judgment, the court should have held that motion in abeyance until, if ever, it becomes ripe for determination. Moreover, with respect to the fifth cause of action, plaintiff correctly argues that there is a threshold issue to be decided—namely, whether defendant’s workers’ compensation defense is precluded as to that cause of action because defendant failed to timely deny the claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; Friedman v Allstate Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50390[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). On the record before us, the date on which defendant received the claim underlying the fifth cause of action cannot be determined; consequently, this issue of fact must first be resolved following a framed issue hearing. If, after that hearing, the Civil Court finds that defendant timely denied the claim, the branch of defendant’s cross motion seeking to hold this cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law should be granted, for the reasons stated above. If the Civil Court finds that defendant did not timely deny the claim, the branch of defendant’s cross motion seeking to hold that cause of action in abeyance should be denied, as defendant’s defense based on the Workers’ Compensation Law would be precluded; whereupon, the branch of plaintiff’s motion seeking summary judgment on that cause of action will become ripe for resolution by the Civil Court.

Accordingly, the order is modified by deleting the provision thereof granting the branch [*3]of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

WESTON and ALIOTTA, JJ., concur.

PESCE, P.J., taking no part.

Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Gabriel & Shapiro, LLC, for respondent (no brief filed).

Appeal from a judgment of the District Court of Suffolk County, Third District (James F. Matthews, J.), entered August 16, 2017. The judgment, entered pursuant to an order of that court dated April 12, 2017 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,337.

ORDERED that the judgment is reversed, without costs, the order dated April 12, 2017 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In an order dated April 12, 2017, the District Court denied defendant’s motion, finding that the letters scheduling the EUOs of plaintiff were defective because they did not specify the claims to which the letters pertained, and the court granted plaintiff’s cross motion. A judgment awarding plaintiff the principal sum of $3,337 was entered on August 16, 2017 pursuant to the April 12, 2017 order.

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

“Contrary to the finding by the District Court, the EUO scheduling letters were not ‘defective.’ We note that the initial EUO scheduling letter identified the assignor, the date of the accident and defendant’s file number. The initial EUO scheduling letter resulted in [*2]a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Tsatkis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact” (First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the judgment is reversed, the order dated April 12, 2017 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, June 17, 2020

APPEARANCES OF COUNSEL

Law Offices of Rachel Perry, Lake Success (Marhall D. Arnett of counsel), for defendant.

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the first, second, and third causes of action, on the ground that plaintiff’s assignor failed to appear for an independent medical examination (IME) scheduled on [*2]August 28 and September 11, 2017. Plaintiff opposes the motion and cross-moves for summary judgment in its favor. Defendant opposes the cross motion.{**68 Misc 3d at 750}

Background

On June 16, 2017, plaintiff’s assignor, Saddiq Waiters, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A, complaint ¶ 2).

At issue in this lawsuit are four bills that plaintiff submitted to defendant for medical equipment/supplies allegedly provided to plaintiff’s assignor on July 10, 2017, August 15, 2017, and August 23, 2017 (two bills were submitted for Aug. 23, 2017). Defendant allegedly received these bills on August 21, 2017, September 1, 2017, and September 12, 2017, respectively (see defendant’s exhibit C, NF-3 forms and denial of claim forms). Defendant “concedes the balance of $200.00” for the date of service on July 10, 2017 (affirmation of defendant’s counsel in support of mot ¶ 12).

IME on August 28, 2017

By a letter dated August 16, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). According to Handelsman, he was in the office from 7:35 p.m. to 8:10 p.m., and plaintiff’s assignor did not appear for the IME (see defendant’s exhibit E, aff of Alan Handelsman ¶ 5).^[FN1]

Follow-Up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). The record does not contain any affidavit from Jane Yiu. According to a litigation manager from Exam Works, Inc., “On 8/29/17 and 9/12/17, a representative from the above-named Examiner’s office informed my office that claimant did not appear for the scheduled MEs” (see defendant’s exhibit D, aff of Georgianna Michios).

Denial of Claim Forms

On September 13, 2017, defendant allegedly partially denied and partially paid $677.37 for the date of service on July 10, {**68 Misc 3d at 751}2017 (defendant’s exhibit C, mailing report). The explanation of benefits states, in relevant part, “In accordance to the New York No-Fault Law, Regulation 68, this base fee was calculated according to the New York Workers’ Compensation Board Schedule of fees, pursuant to Regulation 83 and/or Appendix 17-C of 11 NYCRR” (id., explanation of benefits).

On September 20, 2017, defendant allegedly mailed to plaintiff a denial of claim form for the date of service on August 15, 2017 (defendant’s exhibit C, proof of mailing report). On September 28, 2017, defendant allegedly mailed to plaintiff denial of claim forms for the two bills for the date of service on August 23, 2017 (id.). The explanation of benefits accompanying each denial of claim form identically states, “Failure to submit to multiple requests for Medical Examinations is a violation of both this policy’s contractual Duties and Conditions under Proof [*3]of Claim that precede coverage under Reg 68, Section 65-1. No fault benefits under this policy are denied” (id.).

The table below summarizes the claims, IMEs, and denials at issue:

The Instant Action

On May 11, 2018, plaintiff commenced this action asserting four causes of action to recover unpaid first-party no-fault benefits for the services rendered, plus interest, and a fifth cause of action for attorneys’ fees (see defendant’s exhibit A, summons and complaint). The first, second, and third causes of action relate to the dates of service on August 23, 2017, August{**68 Misc 3d at 752} 23, 2017, and August 15, 2017, respectively (id.). The fourth cause of action concerns the date of service on July 10, 2017 (id.).

Defendant allegedly answered the complaint on May 25, 2018 (see defendant’s exhibit A, aff of service of answer).

Discussion

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the [*4]required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citations and internal quotation marks omitted]).

Defendant’s Motion for Summary Judgment

“The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require’ ” (id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant insurer must establish that it properly mailed scheduling letters for IMEs to plaintiff’s assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

IME on August 28, 2017

According to defendant, plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist, by a letter dated{**68 Misc 3d at 753} August 16, 2017, from Exam Works, Inc. (see defendant’s exhibit D, scheduling letter). To establish proof of mailing, defendant submitted the affidavit of Georgianna Michios, a litigation manager at Exam Works, Inc. (see id., Michios aff).

[1] As plaintiff correctly indicates, the affidavit of the litigation manager was insufficient to show proof of mailing based on personal knowledge or in accordance with a standard office practice or procedure (Parisien v Maya Assur. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50771[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Ying E. Acupuncture, P.C. v Global Liberty Ins., 20 Misc 3d 144[A], 2008 NY Slip Op 51863[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent that proof of mailing is based on personal knowledge, the litigation manager does not state in her affidavit that she either mailed the scheduling letter herself or saw another person mailing the scheduling letter. Rather, the litigation manager stated that the appointment letter was stamped and delivered to the United States Post Office by the mail department, which appears not to be her office (Michios aff ¶ 4).

To the extent that proof of mailing is based upon a standard office practice or procedure, the affidavit of the litigation manager was not sufficient to establish when the scheduling letter was mailed. The affidavit states, in relevant part, “All requests printed out during any given day get placed in a U.S. Post Office Depository by a mail-room employee the same day that they are generated and stamped” (id.). However, the litigation manager does not state when the scheduling letter was generated in accordance with the office practice or procedure; the affidavit does not state that the date that appears on the scheduling letter is the date that the letter was generated.

Even if defendant had demonstrated timely mailing of the scheduling letter, defendant [*5]did not establish that plaintiff’s assignor failed to appear at the IME. Defendant submitted the affidavit of Alan Handelsman, a licensed acupuncturist (defendant’s exhibit E). The affidavit indicates that the basis of Handelsman’s knowledge is “based upon my review of electronic and physical files pertaining to the claimant” (defendant’s exhibit E, Handelsman aff ¶ 4). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their{**68 Misc 3d at 754} introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019] [citations and internal quotation marks omitted]).

Here, Handelsman did not submit any business records.

The affidavit also states, “In addition, I was in the scheduled examining office on 8/28/17 from 7:35 PM to 8:10 PM and I have personal knowledge that Saddiq Waiters did not appear” (Handelsman aff ¶ 5). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

The affidavit does not state that no one appeared at all before Handelsman from 7:35 p.m. until 8:10 p.m. Because Handelsman swore that he was present in the office at the time the IME was to be conducted, he would have known, by the use of his own senses, whether a person appeared in front of him at the time IME was scheduled. However, the affidavit is conclusory as to the basis for Handelsman’s knowledge of the identity of Saddiq Waiters (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations”]). There is nothing in the record to indicate that Handelsman had an existing relationship with Waiters or had previously met Waiters so as to be able to recognize that person. If Handelsman had not previously met Saddiq Waiters, then his knowledge of Waiters’s identity would not be based on personal knowledge.

Follow-up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). As discussed above, the affidavit of the litigation manager from{**68 Misc 3d at 755} Exam Works, Inc. was insufficient to establish proof of mailing of this scheduling letter based on personal knowledge or in accordance with an office practice or procedure (Parisien, 2018 NY Slip Op 50771[U]; Ying E. Acupuncture, P.C., 2008 NY Slip Op 51863[U]).

Defendant failed to establish that plaintiff’s assignor failed to appear at the IME on September 11, 2017. As plaintiff correctly points out, defendant did not submit an affidavit from someone with personal knowledge of the failure to appear (see affirmation of plaintiff’s counsel in support of cross mot ¶¶ 128, 146). Defendant did not submit an affidavit from Yiu, or anyone else from the examiner’s office who would have seen plaintiff’s assignor at the scheduled IME exam. As plaintiff’s counsel also indicates, the statement purportedly made by a [*6]representative from the examiner’s office to a litigation manager at Exam Works, Inc. of the failure to appear at the IME is hearsay (see id. ¶ 128; see Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50750[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [citations omitted]).

With respect to the bills for the dates of service on August 15, 2017, and August 23, 2017, defendant maintains that these bills were received on September 1 and September 12, 2017, respectively. According to defendant, the denial of claim forms for these bills were mailed on September 20 and 28, 2017, and thus within the 30-day period.

To establish proper mailing, defendant submits the affidavit of Lori Curtin, a litigation representative (see defendant’s exhibit B, aff of Lori Curtin) and business records of mailing reports of the denial of claim forms (see defendant’s exhibit C). According to Curtin, the denial of claim forms were printed and mailed from facilities in either Colorado Springs, Colorado or Highland Heights, Ohio (see Curtin aff ¶ 3). Curtin’s {**68 Misc 3d at 756}affidavit and the mailing reports established proof of mailing of the denial of claim forms on September 20 and September 28, 2017, in accordance with a standard office procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Contrary to plaintiff’s arguments, Curtin demonstrated firsthand knowledge of the mailing procedures, because she averred that she has been trained in defendant’s claims handling and mailing procedures, and that she has personally observed the mailing procedures at the mailing facilities in both Colorado and Ohio (Curtin aff ¶ 2). Although plaintiff’s counsel points out that Curtin did not specify the mailing facility from which the denial of claim forms had been mailed, Curtin stated that she has personal knowledge of the mailing procedures at both facilities (id.). In any event, Curtin explained how one could ascertain which mailing facility sent the denial of claim forms.^[FN10] Curtin’s affidavit also properly laid the foundation for the admission of the mailing receipts of the denial of claim forms as business records (see id. ¶¶ 3, 3 [g]).

Plaintiff’s counsel also asserts that Curtin stated that she had “personal knowledge of the [*7]defendant’s file ‘maintained at that [Albany, NY] office’ ” (affirmation of plaintiff’s counsel in support of cross mot ¶ 70). However, plaintiff’s counsel does not reference any paragraph of Curtin’s affidavit, and the quoted words do not, in fact, appear anywhere in Curtin’s affidavit. Rather, Curtin states that her knowledge is based “on a complete review of the documents contained in the electronic claims file, which is maintained in the ordinary course of business of Defendant and which is Defendant’s duty to maintain said file” (Curtin aff ¶ 2). Nowhere in her affidavit does Curtin {**68 Misc 3d at 757}state that the electronic file which she reviewed pertained only to the records at the Albany, NY office (see id. ¶¶ 2, 5).^[FN11]

As plaintiff’s counsel points out, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). Prior cases have ruled that the office procedure was inadequate where, for example, an employee has not checked that the names and addresses on envelopes matched the names and addresses of the intended recipients (see Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [2d Dept 1994] [“when reliance is placed on a mailing sheet, testimony that an employee normally checks the names and addresses on the envelopes with those on the mailing sheet is sufficient to constitute proof of mailing”]).

Here, Curtin states that “[t]he information appearing in the NF-10 and the EOB regarding the recipient, recipient address, patient, dates of service and the amount bill is obtained from the bill(s)/cover letter submitted by Plaintiff,” and that “the Progressive claims representative electronically creates the document(s) to be mailed” (Curtin aff ¶ 3 [i], [l], [n]). The printing/mailing system is automated, and it is reviewed, inspected, and monitored by Progressive employees (id. ¶ 3 [a], [q]). The name and address of the recipient and date of mailing are captured electronically by defendant’s computer onto mailing reports which cannot be altered once captured (id. ¶ 3 [b]). Given these procedures, the court is satisfied this office procedure is geared to ensure that the denial of claim forms were properly addressed and mailed. It is undisputed that the name and address on the mailing reports and on the denial of claims forms were correct.

Therefore, defendant timely issued denial of claims for the dates of service on August 15 and August 23, 2017.

Nevertheless, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on August 28 and September 11, 2017. Accordingly, defendant’s motion for summary judgment dismissing the first through third causes of action is denied.{**68 Misc 3d at 758}

Plaintiff’s Cross Motion for Summary Judgment

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*8]Dists 2011]).

Once plaintiff meets its prima facie burden, the burden shifts to defendant to raise a triable issue fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, plaintiff established prima facie entitlement to summary judgment by submitting the affidavit of Eugene Nemets, the owner of plaintiff, who established that bills were timely submitted to defendant and that payment of no-fault benefits was overdue (see plaintiff’s exhibit 4 in support of cross mot; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]). Nemets stated the dates when each of the bills at issue were mailed to defendant, which were all within 45 days of the dates of the service (see plaintiff’s exhibit 4 in support of cross mot, Nemets aff ¶¶ 34-35, 40-41, 43-44). His affidavit also established that the bills were mailed in accordance with a standard office procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). According to Nemets, the bills were neither paid nor denied within 30 days (Nemets aff ¶¶ 36, 42, 45).

Assuming, for the sake of argument, that plaintiff’s submissions did not establish proof of mailing, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

{**68 Misc 3d at 759}As to the three bills for the dates of service on August 15 and August 23, 2017, defendant proved that it timely denied those claims. However, as discussed above, defendant did not establish that plaintiff’s assignor twice failed to appear for an IME. The issue presented is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient.

The Appellate Term, Second Department has issued two decisions with conflicting results. In Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co. (29 Misc 3d 136[A], 2010 NY Slip Op 52012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), the plaintiff moved for summary judgment in its favor against an insurer, and the insurer opposed the plaintiff’s motion on the ground of lack of medical necessity. The Appellate Term found that, contrary to the insurer’s argument, the plaintiff met its prima facie burden (2010 NY Slip Op 52012[U], *1). Although the Appellate Term found that the insurer had proved that it had timely denied the claim for lack of medical necessity, the Appellate Term awarded the plaintiff summary judgment because the peer review report was from a nurse, which was insufficient to raise a triable issue of fact as to medical necessity (id. at *2).

Three years later, the Appellate Term, Second Department reached the opposite result in Shara Acupuncture, P.C. v Allstate Ins. Co. (41 Misc 3d 129[A], 2013 NY Slip Op 51731[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). There, the plaintiff moved for summary judgment in its favor against the insurer on six causes of action, and the insurer raised the defense of a fee schedule. The court below denied the plaintiff’s motion for summary judgment and instead granted the defendant reverse summary judgment dismissing all six causes of action (2013 NY Slip Op 51731[U]). On appeal, the Appellate Term found that the insurer timely denied the claims, but it reinstated the second cause of action, because the insurer failed to address whether that claim had been paid in accordance with the fee schedule. Although the insurer submitted no evidence as to the fee schedule defense, the Appellate Term denied the plaintiff’s motion for [*9]summary judgment, reasoning, “As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim” (id. at *2).

{**68 Misc 3d at 760}Under Rockaway Med. & Diagnostic, P.C., once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds (2010 NY Slip Op 52012[U]). Under Shara Acupuncture, P.C., once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment (2013 NY Slip Op 51731[U]). Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment (see id.).

Shara Acupuncture, P.C. controls here (id.). As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-day period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp., 2011 NY Slip Op 51292[U]). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely denial (see e.g. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2d Dept 2010] [defendant made a partial payment and partial denial within 30 days after receipt of the bill]), then the court should consider whether plaintiff met the prima facie burden under the second method (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 67 Misc 3d 135[A], 2020 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

[2] Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-day period, and the defendant raised a triable issue of fact as to whether the claims were timely denied. Because plaintiff had not demonstrated that the denial was conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor as to the bills for the dates of service on August 15 and August 23, 2017. Plaintiff’s cross motion for summary judgment is therefore denied, in part, as to the first, second, and third causes of action.{**68 Misc 3d at 761}

As to the fourth cause of action, defendant conceded its liability for the bill for the date of service on July 10, 2017, which it had partially paid (affirmation of defendant’s counsel in support of mot ¶ 12). Although defendant conceded the balance of $200, the difference was, in fact, $240. Plaintiff had billed $917.37 and defendant paid $677.37 (see defendant’s exhibit C, denial of claim form). Therefore, plaintiff is entitled to summary judgment on the fourth cause of action against defendant, in the amount of $240.

Plaintiff is also entitled to prejudgment interest on the fourth cause of action at the rate of 2% per month, from May 11, 2018, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after receipt of the denial of claim forms dated May 23, 2017 (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Because plaintiff prevailed against defendant on the fourth cause of action, plaintiff is [*10]also entitled to recover attorneys’ fees from defendant (11 NYCRR 65-4.6 [d]). However, partial summary judgment is granted in plaintiff’s favor as to liability only on the fifth cause of action, because it remains to be seen whether plaintiff will be entitled to attorneys’ fees with respect to the other bills.^[FN12]

Conclusion

Upon the foregoing cited papers, it is hereby ordered that defendant’s motion for summary judgment dismissing the complaint is denied; and it is further ordered that plaintiff’s cross motion for summary judgment in its favor against defendant is granted in part to the extent that plaintiff is granted summary judgment in its favor and against defendant on the fourth cause of action in the amount of $240, plus prejudgment interest at the rate of 2% per month, from May 11, 2018; and plaintiff is granted partial summary judgment as to liability only on the fifth cause of action; and it is further ordered that{**68 Misc 3d at 762} the remainder of plaintiff’s cross motion for summary judgment is otherwise denied, and the action shall continue.

Footnotes

Footnote 1:Defendant’s counsel refers to the affidavits of John Johnson, DC, and Karen Thomas, DC, which were purportedly included in exhibit E (affirmation of defendant’s counsel in opp to cross mot ¶ 21). However, these affidavits were not included in the papers submitted to court, and in any event, the IME scheduling letters indicated that the IMEs were scheduled before Alan Handelsman and Jane Yiu.

Footnote 2:Defendant’s exhibit C, NF-3 forms.

Footnote 3:Id., denial of claim forms.

Footnote 4:Defendant’s exhibit D.

Footnote 5:Id.

Footnote 6:Id.

Footnote 7:Defendant’s exhibit C.

Footnote 8:Id., denial of claim forms.

Footnote 9:Id., mailing reports.

Footnote 10:According to Curtin, the mailing facility can be determined from the sixth and seventh digits of the envelope ID (Curtin aff ¶ 3 [m]). “If the sixth and seventh digits are 00 or 02, the document was mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the document was mailed from Colorado Springs, Colorado” (id.). Here, the mailing reports indicate that the envelope IDs for the denial of claim forms for the dates of service on August 15, 2017, and August 23, 2017, were “CMBPI02H000540″ and “CMBPG00P00018,” respectively (defendant’s exhibit C in support of mot [emphasis added]).

Footnote 11:Plaintiff’s counsel also purports to quote extensively from Curtin’s affidavit (see affirmation of plaintiff’s counsel in support of cross mot ¶ 74), but the quoted statements do not appear in Curtin’s affidavit.

Footnote 12:In the prayer for relief in its cross motion, plaintiff’s counsel incorrectly asserted that plaintiff was entitled to a maximum of $850 in attorneys’ fees per cause of action. However, each bill was asserted as a separate cause of action. Following the opinion of the Superintendent of Insurance, the Court of Appeals expressly rejected the calculation of attorneys’ fees on a per bill basis; the award of attorneys’ fees is calculated as 20% of the aggregate amount of all bills in the action pertaining to a single insured, plus interest, subject to a maximum of $1,360 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; 11 NYCRR 65-4.6 [d]).

[*1]

Civil Court of the City of New York, Bronx County, June 15, 2020

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Chris McCollum P.C., Brooklyn, for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The amount in dispute is $5,503.90.

The defendant now moves pursuant to CPLR 3212 for an order granting summary judgment in favor of the defendant on the grounds that (1) the plaintiff lacks standing to receive no-fault reimbursement because it is not properly owned and controlled by licensed medical professionals as required by 11 NYCRR 65-3.16 (a) (12) and State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]); (2) the defendant timely and properly denied the claim as the medical treatment was not medically necessary; and (3) the defendant properly paid and denied the remainder of the claims pursuant to the New York State Workers’ Compensation Fee Schedule.

The plaintiff opposes and cross-moves for an order of summary judgment in favor of the plaintiff. The plaintiff also moves for an order deeming certain facts established pursuant to [*2]CPLR 3212 (g), as to its prima facie case.

Standard of Review

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. (See Zuckerman v City of New York, 49 NY2d 557 [1980].) Summary judgment is inappropriate where there are material issues of fact in dispute or where more than one conclusion may be drawn from the facts. (See Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 [2016].) In considering a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. (See Negri v Stop & Shop, 65 NY2d 625 [1985].)

{**68 Misc 3d at 559}Once a movant meets its burden, the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact. (See Piccolo v De Carlo, 90 AD2d 609 [3d Dept 1982].)

Discussion

Defendant’s Motion for Summary Judgment as to a Mallela Defense

Pursuant to 11 NYCRR 65-3.16 (a) (12), an insurer may withhold payment for medical services that a professional corporation provides, where there is a “willful and material failure to abide by” licensing and incorporation statutes, even if the services were provided by licensed health care providers. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005].) A party may support a finding that a provider is not eligible for reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud. (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019].) But in order to withhold payment, the violations of incorporation and licensing statutes must be “more than merely technical and ‘rise to the level of’ a grave violation such as fraud.” (Id. at 405-406, citing Mallela at 322.)

Although Mallela is typically a defense mounted at trial, the defendant is free to use Mallela as a mechanism to keep claims open. (High Definition MRI, P.C. v Countrywide Ins. Co., 2019 NY Slip Op 32009[U] [Sup Ct, NY County 2019].) In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact. (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007].) Where different conclusions may be reasonably drawn from the evidence, the motion should be denied. (Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992].)

Defendant argues that plaintiff is not properly owned and controlled by licensed medical professionals, which is required by 11 NYCRR 65-3.16 (a) (12). In support of its argument, defendant offers the affidavit of James Glampe, a special investigator in its SIU department. Glampe contends that in the examinations under oath on March 3, 2015, and August 16, 2016, Dr. Harvey “admitted” that he owns 97% of Harvey Family Chiro PT & Acup, PLLC, with a physical therapist owning 2% and an acupuncturist owning the remaining 1% of the{**68 Misc 3d at 560} PLLC. Dr. [*3]Harvey testified in March 2015 that “he was responsible for the day to day management of the company, and that the physical therapists and acupuncturist do not have general management responsibilities.” Dr. Harvey testified in August 2016 that profits are distributed in accordance with the ownership shares. Defendant argues that this allows Dr. Harvey to receive a disproportionate share of the income from professions he is not licensed to perform. Dr. Harvey testified in August 2016 that 70% of the practice is chiropractic treatment, 20-25% is physical therapy, and 10% is acupuncture.

Plaintiff argues that the conduct at issue in Mallela and Carothers is easily distinguishable from the ownership structure and services provided at Harvey Family. Plaintiff argues that defendant merely objects to the ownership split at Harvey Family, but that fee splitting alone is not sufficient to mount a Mallela defense. In addition, plaintiff contends that such a fee split is permissible under article 15 of the Business Corporation Law.

[1] The court now denies defendant’s motion on the Mallela defense. Although Dr. Harvey owns a sizeable majority of plaintiff and receives income from services provided by professionals operating under different licenses, impermissible fee splitting alone is not a violation of a licensing requirement as required by Mallela. (See H & H Chiropractic Servs., P.C. v Metropolitan Prop. & Cas. Ins. Co., 47 Misc 3d 1075, 1079 [Civ Ct, Queens County 2015].) In Mallela and Carothers, the Court was deeply concerned with the corporate practice of medicine by nonphysicians. Both cases involve physicians that essentially rented out their license to nonphysicians, who ran the day-to-day operations of the medical practices and received the bulk of the profits. Here, all owners are licensed to provide medical care. Nor does it appear that Dr. Harvey provides, supervises, or otherwise interferes with services that he is not licensed to render. However, the extreme equity distribution in the PLLC raises issues of fact for trial as to the level of control exerted by Dr. Harvey over services outside the scope of his license.

Defendant’s Motion for Summary Judgment as to Lack of Medical Necessity

The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].) The insurer may rebut the inference of medical{**68 Misc 3d at 561} necessity by proof in admissible form establishing that the health benefits were not medically necessary. (See A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007].) The proof must provide a factual basis and medical rationale that the services were not medically necessary. (See Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].) Once a defendant submits evidence establishing a lack of medical necessity for the services rendered, the burden shifts to the plaintiff to rebut the defendant’s evidence. (See Foster Diagnostic Imaging, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 138[A], 2011 NY Slip Op 52074[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011].)

The court finds that the defendant proved that it timely mailed the denial through the affidavit of its litigation examiner, Tara Piontek. Ms. Piontek’s affidavit established that the defendant timely mailed its denial of claim form based upon standard office practice or procedure, designed to ensure that items are properly addressed and mailed. (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001].)

The court finds that the defendant met its burden in establishing that the treatment was not medically necessary through the affidavits and reports of Daniel Sposta, D.C., L.Ac., and Sathish Modugu, M.D., CIME. Dr. Sposta’s affidavit and affirmed report state that he is a licensed chiropractor and acupuncturist, and that he conducted an independent chiropractic and acupuncture examination of the assignor. Dr. Sposta’s report states that he reviewed various medical records, including records from plaintiff, Jacobi Medical Center, and Stand-Up MRI of Yonkers. These records were annexed to defendant’s motion. Dr. Sposta determined that continued chiropractic and acupuncture services in relation to assignor’s motor vehicle accident were not medically justified and that treatment should have been discontinued. Dr. Sposta reported the assignor’s complaints of pain, but noted that several test results were negative for pain. Dr. Modugu’s affidavit and report state that he is a licensed physician and that he conducted an independent medical examination of the assignor. Dr. Modugu’s report states that he reviewed various medical records and diagnostic studies, including records from plaintiff, claim forms, and Dr. Sposta’s independent medical{**68 Misc 3d at 562} evaluation. These records were annexed to defendant’s motion. Dr. Modugu determined that continued physical therapy in relation to the accident was not necessary, as the assignor had received extensive treatment already. However, Dr. Modugu’s physical examination noted that the assignor’s range of motion was lower than normal. Dr. Modugu also reported the assignor’s complaints of pain and suggested that follow up with pain management may be appropriate.

[2] The court finds that the plaintiff met its burden rebutting the defendant’s evidence through the affidavit of Richard Harvey, D.C., a licensed chiropractor and majority owner of plaintiff. Dr. Harvey’s affidavit reviews the assignor’s medical records, detailing the assignor’s complaints of neck, back, shoulder, and knee pain, as well as headaches, muscle spasms, and spinal subluxations. These records were annexed to plaintiff’s cross motion. The assignor’s medical records reflect abnormal moderate pain, muscle spasms, and significant myalgia in the lumbar region of the back. Dr. Harvey contends that based off these complaints and medical issues, “conservative care was continued.” Dr. Harvey also notes that “there are no specific guidelines delineating the absolute structured path for treatment to be universally prescribed to all patients,” such that “[g]reat deference should be given to the treating provider charged with the responsibility to examine, diagnose and treat” patients. Dr. Harvey’s affidavit puts into question whether assignor’s condition had been resolved, such that continued medical services were not necessary.

Based on a reading of the affidavits and reports submitted by both parties, the court finds that a material issue of fact exists as to the medical necessity of assignor’s treatment. Therefore, the defendant’s motion for summary judgment is denied.

Defendant’s Motion for Summary Judgment as to Proper Payment under the Fee Schedule

Where the insurer determines that a medical bill contravenes the applicable fee schedule, the burden then shifts to the insurer to assert a defense that the provider billed in excess of the fee schedule. (See 11 NYCRR 65-3.8 [g] [1].) Once an insurer makes a prima facie showing that the amount charged by a medical provider is in excess of the fee schedule, the burden then shifts to the provider to show that the charges involved a different interpretation of such schedules or an inadvertent miscalculation or error. (SeeCornell Med., P.C. v Mercury Cas. {**68 Misc 3d at 563}Co., 24 Misc 3d [*4]58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].)

[3] The defendant argues that it properly and timely paid the claims pursuant to the New York State Workers’ Compensation Fee Schedule, and that it denied the remainder as billed in excess of the fee schedule. Defendant contends that the applicable fee schedule is the New York Workers’ Compensation Medical Fee Schedule effective June 1, 2012, and that the amounts paid under the fee schedule were calculated by multiplying the relative value unit for the CPT code by the conversion factor for the region in which the provider is located. Notably, defendant did not submit an affidavit from an individual who is familiar with coding and fee schedules. The court cannot accept the attorney’s affirmation as proof that the bills were improperly coded as it is not based on personal knowledge and has no probative value in a motion for summary judgment. (See W. W. Norton & Co. v Roslyn Targ Literary Agency, 81 AD2d 798 [1st Dept 1981]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; see also Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011].) The court finds that the defendant has not met its prima facie burden of proof showing the absence of a material issue of fact as to the amount that it paid.

Plaintiff’s Cross Motion for Summary Judgment

A medical provider seeking reimbursement from a no-fault insurer demonstrates prima facie entitlement to reimbursement by submitting evidence that payment of no-fault benefits is overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].) To establish entitlement to summary judgment on overdue no-fault benefits, the medical provider is required to submit proof of mailing through evidence in admissible form. Such proof may include an affidavit from a person or entity with knowledge of the claim and how it was sent to the insurer. (See id.) The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].)

[4] The court denies the plaintiff’s cross motion for summary judgment. Plaintiff attached some documentation of its claim,{**68 Misc 3d at 564} but did not attach documentation from one of its billers stating that a bill was generated and mailed. In addition, plaintiff did not state when the bill was mailed and failed to attach proof of said mailing.

Conclusion

Accordingly, the defendant’s motion is denied in its entirety. The plaintiff’s cross motion is also denied in its entirety.

Freiberg, Peck & Kang, LLP (Yilo Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered September 21, 2018. The judgment, entered pursuant to an order of that court entered August 13, 2018 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion, for, in effect, summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,190.34.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 13, 2018 is deemed a premature notice of appeal from the judgment entered September 21, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. In support of plaintiff’s motion for a default judgment, its counsel stated that defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 13, 2018, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered on September 21, 2018 awarding plaintiff the principal sum of $2,190.34. We deem [*2]defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

“Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). ‘Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])’ ” (Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U], *2[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], quoting Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]). As a result, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport, Inc.,116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC,71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch,50 AD3d 963, 964 [2008]). Consequently, defendant’s cross motion should have been granted.

Accordingly, the judgment is reversed, the order entered August 13, 2018 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion for, in effect, summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint without prejudice.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.

Decided on June 12, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew Sarles of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 7, 2018. The order denied plaintiff’s motion to, in effect, vacate an order of that court entered February 27, 2017 granting, without written opposition by plaintiff, defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order entered February 7, 2018 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Republic Western Insurance Company (Republic) moved for, in effect, summary judgment dismissing the complaint on the ground that this action by plaintiff TAM Medical Supply Corp. (TAM) was barred under the doctrine of res judicata, by virtue of an order of the Supreme Court, New York County, which had granted a motion by Republic for a default judgment against TAM and its assignor, declaring that Republic is not obligated to pay for no-fault benefits on behalf of the assignor. TAM submitted papers in opposition to Republic’s motion, but they were not served timely in accordance with a briefing schedule stipulation which had been executed by attorneys for both parties. By order entered February 27, 2017, the Civil Court (Robin Kelly Sheares, J.) granted Republic’s motion, declining to consider TAM’s late opposition papers. Thereafter, TAM moved, in effect, to vacate the February 27, 2017 order, arguing that it had a reasonable excuse of law office failure for submitting untimely opposition to Republic’s motion and a meritorious claim of breach of contract. Republic opposed the motion. TAM appeals from an order of the Civil Court (Robin Kelly Sheares, J.), entered February 7, 2018, denying TAM’s motion.

The record before us indicates that TAM had moved, in effect, to vacate the February 27, 2017 order and, thus, was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to Republic’s motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the explanation of law office failure by TAM’s attorneys’ calendar clerk was insufficient to establish an excuse for submitting TAM’s opposition papers late. Consequently, it is unnecessary to determine whether TAM established a potentially meritorious opposition to Republic’s motion (see Rubinstein v Rubinstein, 128 AD3d 1047 [2015]). As TAM failed to demonstrate that the February 27, 2017 order should have been vacated, TAM’s motion was properly denied.

Accordingly, the order entered February 7, 2018 is affirmed.

ALIOTTA, P.J., WESTON and SIEGAL, JJ., concur.

Decision Date: June 12, 2020

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb and Selina Chin of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 31, 2018. The judgment, after a nonjury trial, awarded plaintiff the sum of $12,182.91.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

Pursuant to an order entered February 17, 2017 in this action by a provider to recover assigned first-party no-fault benefits, the only issue for trial was whether the supplies at issue were medically necessary. At the nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witness on the ground that disclosure of the witness was untimely. The Civil Court granted plaintiff’s application to preclude the witness and, since defendant did not have any other witnesses, found for plaintiff. A judgment awarding plaintiff the sum of $12,182.91 was entered on May 31, 2018.

“CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999] [internal quotation marks omitted]). Plaintiff attempted to demonstrate prejudice before the Civil Court. However, since defendant’s witness was the doctor who had prepared the peer review reports upon which the denials of the claims were based, his name was listed as such in each of the denial of claim forms, and his report was attached to defendant’s motion for summary judgment, it is clear that plaintiff was not prejudiced (see id.). Thus, the Civil Court erred in precluding defendant’s expert from testifying (see Burbige v Siben & Ferber, 115 AD3d 632 [2014]; Market St. Surgical Ctr. v Global [*2]Liberty Ins. Co.,61 Misc 3d 155[A], 2018 NY Slip Op 51822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

In view of the foregoing, this court need not reach defendant’s other argument.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.