Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins Co. (2010 NY Slip Op 51090(U))

District Court of Nassau County, Second District

32836/08

Friedman, Harfenist, Langer & Kraut, LLP, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042, Attorney for Plaintiff

Rossillo & Licata, P.C. 355 Post Ave., Suite 204, Westbury, NY 11590, Attorney for Defendant

Michael A. Ciaffa, J.

Motion by defendant for summary judgment dismissing plaintiff’s no-fault claim is DENIED.

The papers submitted by defendant in support of its motion for summary judgment include proof of plaintiff’s admitted receipt of defendant’s denial, grounded upon a defense of lack of medical necessity. Although plaintiff’s counsel questions the sufficiency of defendant’s proof that the denial was mailed timely, cf Elmont Open MRI v. Progressive Cas. Ins. Co., 2009 NY Slip Op 50693 (Dist Ct Nassau Co.), plaintiff is in no position to contest the adequacy of defendant’s proof of timely mailing under the circumstances at bar. At least in cases, like this one, where plaintiff’s interrogatory responses admit receipt of the denial but aver that plaintiff keeps no record of the dates when denials are received, plaintiff should not be allowed to dispute the timeliness of the denial without making an affirmative allegation that the denial was received on or after a particular date. In the absence of such an affirmative allegation, the Court may properly assume that the denial was mailed on or about the date shown on the denial. Federal Courts routinely assume that notices are duly mailed “on the date shown on the notice” unless the recipient presents “sworn testimony or other admissible evidence” which provides a factual basis for challenging the assumption. See, e.g. Sherlock v. Montefiore Med. Center, 84 F3d 522, 526 (2nd Cir, 1996). [*2]

Moreover, since the denial presumably was received in an envelope which included evidence of a date of postmarking or postal metering, the Court can properly draw an adverse inference from plaintiff’s failure to retain and preserve the envelope. It appears well settled that a party’s failure to keep and produce “the postmarked envelope” may result in an “adverse inference” in cases involving an issue of timely mailing. See, e.g. Lewis v. U.S., 144 F3d 1220, 1223 (9th Cir. 1998).

Consequently, the Court need not reach the issue of whether defendant’s proof of timely mailing of its denial strictly satisfied the requirements of St. Vincent’s Hosp. v.

GEICO, 50 AD3d 1123 (2d Dept. 2008), and its progeny. Since plaintiff’s answers to interrogatories admitted receipt of the denial, and since plaintiff has averred that it kept no records indicating the date of receipt, the timeliness of defendant’s mailing is not a legitimate issue in dispute. The Court therefore turns to the sufficiency of defendant’s proof of its defense, on the merits, that the subject MRI was not medically necessary.

In support of defendant’s lack of medical necessity defense, defendant relies upon the affidavit and peer review report of Dr. Kevin Portnoy. The proof is in proper evidentiary form. The doctor’s opinion is based upon his review of medical records obtained as part of defendant s verification process. Dr. Portnoy appears to have the background, experience, and credentials to make a credible presentation on the issue of medical necessity. His report, on its face, sets forth a factual basis and medical rationale for the denial, supported by reference to certain articles and general guidelines respecting the performance of MRIs. Cf. Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005).

Nevertheless, it cannot be emphasized too strongly that summary judgment is a “drastic remedy” which should not be granted if there is “any doubt” respecting the existence of a triable issue. “Issue finding, not issue determination, is the key to the procedure.” Staten Island Hosp. v. Home Ins. Co., 148 AD2d 522 (2d Dept 1989), quoting Sillman v. Twentieth Century-Fox, 3 NY2d 395, 404 (1957); see also Millennium Radiology P.C. v. NY Central Mut. Fire Ins. Co., 2009 NY Slip Op 50877 (Civ Ct Richmond Co.).

Judged by these standards, defendant has not met its heavy burden. Although plaintiff perhaps would have been better served had it secured an affidavit from the doctor who prescribed the subject MRI, the doctor previously submitted to defendant a letter of medical necessity which sets forth his own factual basis and medical justification for the MRI. It states, in pertinent part: “After two months of treatment, patient still has neck pain and stiffness. An MRI of the Cervical Spine was warranted to further evaluate my patient and to rule out disc herniation and pathology.” The factual basis set forth is supported by medical documentation, showing claimant’s condition, day to day, in the weeks immediately preceding the MRI. Moreover, the MRI test results confirmed multiple disc herniations abutting the anterior aspect of the spinal canal.

Dr. Portnoy’s report never specifically addresses the treating doctor’s stated basis for the test. While he gives a number of examples of factors that would justify an MRI, he cites no [*3]specific medical authority or standards which state that an MRI would be contraindicated for a patient still suffering from a cervical trauma approximately two months post-accident. Moreover, he makes no effort “to explain how the [MRI] could be medical unnecessary when the test[] did in fact yield positive findings . . .” Nir, supra.

In short, when viewed in the context of the presumption of medical necessity, the treating doctor’s rationale, the medical records of claimant’s condition, and the heavy burden placed upon defendant under the caselaw governing summary judgment, the Court concludes that Dr. Portnoy’s report and affidavit fail to prove defendant’s entitlement to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment must be denied.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: June 4, 2010

CC:Friedman, Harfenist, Langer & Kraut, LLP

Rossillo & Licata, P.C.

MAC:ju