Decided on August 9, 2019

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. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered April 14, 2017. The judgment, entered pursuant to an order of that court entered November 2, 2016 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to dismiss the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

Plaintiff Tam Medical Supply Corp. (Tam) commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident on August 29, 2012. Defendant insurer (Kemper) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Tam and its assignor, among others, seeking a declaration that Kemper has no obligation to pay any pending or future claims for no-fault benefits arising from an accident on August 29, 2012, and Kemper moved for summary judgment. By order dated April 11, 2016, the Supreme Court granted Kemper’s motion, finding that Kemper was not obligated to pay the claims pertaining to the August 29, 2012 accident.

Thereafter, Tam moved in the Civil Court for summary judgment and Kemper cross-m[*2]oved in the Civil Court to dismiss the complaint on the ground that Tam’s action is barred by virtue of the Supreme Court’s order which granted summary judgment to Kemper. By order entered November 2, 2016, the Civil Court denied Tam’s motion and granted Kemper’s cross motion. Tam appeals from a judgment which was subsequently entered dismissing the complaint.

By virtue of the findings of fact of the Supreme Court within its award granting summary judgment to Kemper, there was a conclusive determination of the merits of the claims in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). Consequently, as Tam’s action in the Civil Court is barred by the doctrine of res judicata (see Bayer, 115 AD3d at 899; Panagiotou, 88 AD3d 779; Methal, 50 AD3d at 656), the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion.

Accordingly, the judgment is affirmed.

SIEGAL, J.P., PESCE and ELLIOT, JJ., concur.

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (David M. Gottlieb and Stefan Belinfanti of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 27, 2017. The order reversed so much of an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 18, 2014, as (1) granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover no-fault benefits for services billed under CPT code 97039 (moxibustion), and (2) denied that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action, and the order dated October 27, 2017, thereupon denied that branch of the defendant’s motion and granted that branch of the plaintiff’ cross motion.

Ordered that the order dated October 27, 2017, is affirmed, with costs.

The plaintiff commenced this action in the Civil Court of the City of New York, Kings County, to recover the sum of $727.36, the cost of the unpaid services rendered to its assignor, Dulce Baez. The defendant answered the complaint and asserted as a fourth affirmative defense that “[a]n unlisted modality has been billed” for which “[d]ocumentation of the type of modality, a description of services, and if there has been constant attendance, the amount of time is required for payment.”

The defendant subsequently moved, and the plaintiff cross-moved, for summary judgment. The Civil Court granted the defendant’s motion and denied the plaintiff’s cross motion, concluding that the defendant had “paid the claims as per the proper fee schedule.” The plaintiff appealed the order of the Civil Court to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts.

The Appellate Term reversed the order insofar as appealed from, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover for services billed under CPT code 97039 (moxibustion), and granted that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action. By further order of the Appellate Term, the defendant was granted leave to appeal to this Court.

The no-fault law “is aimed at ensuring ‘prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists’ ” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-505 [2015], quoting Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). “The legislative design of the no-fault insurance scheme demonstrates an interest in prompt resolution of reimbursement claims, a desire to avoid litigation, and statutory consequences on an insurer to incentivize it to seek verification of a claim, deny it, or pay” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506-507).

“Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2010]). “Subsequent to the receipt of one or more of the completed verification forms [used to establish proof of claim], any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). “If an insurer seeks additional verification, . . . the 30-day window is tolled until it receives the relevant information requested” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [citation omitted]). In Hospital for Joint Diseases v Travelers Prop. Cas. Inc. Co., the Court of Appeals wrote “[w]e concur” with “Appellate Division case law [that] consistently holds that a carrier’s failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies” (id. at 318).

Here, moxibustion therapy was billed under CPT code 97039, which is described as an “unlisted modality.” “The workers’ compensation fee schedules do not assign a relative value to . . . [this] code[ ], but instead have assigned [it] a ‘By Report’ designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement” (Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The defendant maintains that it properly denied payment of the charges listed under CPT code 97039 “because the provider failed to provide pertinent information concerning the nature, extent, and need for the service, or the time, the skill and the equipment necessary.” In other words, the denial of the plaintiff’s claim was based on the lack of sufficient information.

We agree with the Appellate Term’s determination that the denial of the plaintiff’s claim for services billed under CPT code 97039 was without merit as a matter of law. Although an unlisted modality must be justified by report, this requirement has no bearing on the insurer’s burden of requesting additional verification in the first instance (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319), which the defendant insurer did not do. Since there is no dispute that the defendant received the requisite claim form and that the denial of the claim was without merit as a matter of law, summary judgment on the cause of action to recover for services billed under CPT code 97039 (moxibustion) was properly awarded to the plaintiff. Mastro, J.P., Balkin, Barros and Christopher, JJ., concur.

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 26, 2017. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether the additional verification requested by defendant remained outstanding. At the nonjury trial, the Civil Court (Robin Kelly Sheares, J.), with no testimony having been presented, granted a motion by defendant for a directed verdict, on the ground that plaintiff had failed to produce a witness to show that plaintiff had mailed the requested verification. Plaintiff appeals from a judgment, entered July 26, 2017, which dismissed the complaint.

In a prior order denying defendant’s motion for summary judgment dismissing the complaint, the Civil Court (Katherine A. Levine, J.) made the following four findings “for all purposes in this matter pursuant to CPLR 3212 (g)”: that plaintiff had timely submitted its bills to defendant, that defendant had received the bills, that the bills remained unpaid, and that defendant had timely mailed verification requests to plaintiff.^[FN1] The motion court found that [*2]plaintiff had raised a triable issue of fact as to whether it had provided the requested verification, and held that the only issue for trial was “whether the requested verification remains outstanding.”

Where a no-fault insurer is relying on the defense that an action is premature because verification is outstanding, it is the defendant insurer’s prima facie burden at trial to demonstrate (1) that verification requests were timely mailed and (2) that the defendant did not receive the requested verification (see 11 NYCRR 65-3.8 [a]; Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 140[A], 2017 NY Slip Op 51857[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As there was a finding for all purposes in this action that defendant had timely mailed verification requests to plaintiff, defendant did not have to prove this element of its defense at trial. In contrast, there was no finding that defendant had not received the requested verification. If the motion court had also found, for all purposes in the action, that defendant had not received the requested verification, meaning that that fact could no longer be disputed or rebutted, then, rather than denying defendant’s motion for summary judgment and making CPLR 3212 (g) findings, the appropriate course of action in this case would have been to grant summary judgment to defendant (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Instead, the motion court simply found that plaintiff had raised a triable issue of fact as to that question, the only impact of which was that a trial, limited to the issue of “whether the requested verification remains outstanding,” would take place (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

CPLR 3212 (g) permits the limitation of issues for trial by the specification of facts that “are not in dispute or incontrovertible”; it does not permit the kind of burden shifting engaged in by the trial court as to issues which remain triable—here, by requiring plaintiff to commence the trial to establish that the outstanding verification had been mailed (see id.). Since the motion court had previously found that a trial was warranted, it remained defendant’s initial burden to present testimony to demonstrate that it had not received the requested verification, before the burden shifted to plaintiff to prove that it had provided responses. Consequently, the trial court erred in, in effect, requiring plaintiff to present its proof first at the limited trial and, when plaintiff failed to present a witness to testify with respect to plaintiff’s assertion that it had mailed the requested verification to defendant, granting defendant’s motion for a directed verdict.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether requested verification remains outstanding.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 02, 2019

Footnotes

Footnote 1:The court specifically stated that the requests were mailed. The finding that they were timely mailed is implicit in the court’s order.

Decided on August 2, 2019

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

Decided on August 2, 2019

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