April 8, 2010

Gegerson v State Farm Ins. Co. (2010 NY Slip Op 50604(U))


The court considered the plaintiff's motion for summary judgment for no-fault benefits, or alternatively, for an order of preclusion, as well as the defendant's cross-motion for dismissal of the claim of plaintiff Naik on grounds of an Examination Under Oath (EUO) default. The main issues decided were whether the plaintiff's motion established their entitlement to judgment as a matter of law and whether the defendant's cross-motion for dismissal of the claim of plaintiff Naik on grounds of EUO default was warranted. The court held that the plaintiff's moving papers failed to establish their entitlement to judgment as a matter of law and that the defendant was entitled to summary judgment dismissing plaintiff Naik's complaint on grounds of an EUO default. Additionally, the court rejected the defendant's argument that Dr. Gegerson's claim must fail due to lack of causation, as there was at least a triable issue as to causation.

Reported in New York Official Reports at Gegerson v State Farm Ins. Co. (2010 NY Slip Op 50604(U))

Gegerson v State Farm Ins. Co. (2010 NY Slip Op 50604(U)) [*1]
Gegerson v State Farm Ins. Co.
2010 NY Slip Op 50604(U) [27 Misc 3d 1207(A)]
Decided on April 8, 2010
District Court Of Nassau County, Second District
Ciaffa, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 8, 2010

District Court of Nassau County, Second District

Andrew Gegerson, DPM, APPASAHEB NAIK, MD, A/A/O DANA FRAZIER, Plaintiff(s)


State Farm Insurance Company, Defendant(s)


McDonnell & Adels, P.C., 401 Franklin Ave. Garden City, NY 11530, Attorney for Plaintiff

Mandel & Santora, Esqs. 29 Broadway Lynbrook, NY 11563, Attorney for Defendant

Michael A. Ciaffa, J.

Plaintiffs move for summary judgment upon claims for no-fault benefits, or alternatively, for an order of preclusion. Defendant cross-moves for dismissal of the claim of plaintiff Naik on grounds of an EUO default.

Addressing plaintiffs’ motion first, the Court finds that plaintiffs’ moving papers fail to establish their entitlement to judgment as a matter of law. Their motion includes mis-dated copies of bills which cannot possibly be deemed admissible “business records” (CPLR 4518) in support of the motion. Indeed, as defendant’s opposition papers document, the copies submitted are each dated October 13, 2009 – – more than two years after the action was commenced. Moreover, the actual bills received by defendant in 2007 differ in certain respects from the copies submitted with plaintiffs’ motion. While it appears that the “bills” submitted by plaintiffs’ counsel were generated through a computer operator’s error, it remains plaintiffs’ burden on a summary judgment motion to adduce proof, in proper evidentiary form, establishing plaintiffs’ claims as a matter of law. Under the instant circumstances, they have not done so.

Defendant’s cross-motion presents a more difficult issue. In other contexts, this Court has not hesitated to grant dismissal of no-fault claims where a provider has been guilty of a provable EUO default. See Dynamic Med. Imaging, P.C. v. State Farm Mut. Auto Ins. Co., 2009 NY Slip Op 29478 (Dist Ct. Nassau Co.). However, before such a default may be found, the insurer must establish its “specific objective justification supporting the use of such examination.” Progressive Northeastern Ins Co. v. Arguelles [*2]Med. P.C., 2009 NY Slip Op 32353 (Sup Ct. NY Co.); see also Westchester Med Center v. GEICO, 2009 NY Slip Op 30914 (Sup Ct. Nassau Co.). In this Court’s

opinion, defendant’s cross-motion includes adequate proof from an investigator that objectively justified an examination of Dr. Naik under oath (see aff. of Gina McLaughlin). That proof included allegations suggesting that Dr. Naik “billed for services he did not render” and had submitted various “questionable” billings (id.). Since any refusal to pay on such grounds would necessarily have to be asserted in the insurer’s denial, or be forever precluded, see Fair Price Med. Supply Co. v. Travelers Under. Co., 10 NY3d 556 (2008), the insurer certainly had good reason, at the verification stage, to investigate these issues further.

Nevertheless, it is unclear, from defendant’s moving papers, whether defendant also possessed a “specific objective justification” for its extremely broad requests for extensive documentation relating to the Naik entity’s ownership, licencing, income, expenses, employment practices, and business relationships. In addition to wanting to investigate the particular claims at issue, defendant’s investigator believed that Dr. Naik’s medical practice was a fraudulently incorporated entity. See State Farm Mut. Auto Ins. Co. v. Mallela, 4 NY3d 313 (2005). Defendant’s EUO requests accordingly asked for “the following information”:

(i)documents evidencing ownership of the P.C., at the time of the treatment for which you seek payment, by one or more licensed professionals, including but not limited to a copy of the certificate of incorporation for the P.C., receipts for filing, stock certificates, and the stock ledger for the P.C.

(ii)documents relating to the income and expenses of the P.C., including but not limited to tax returns and financial statements for the past two years, and bank statements and general ledgers of the P.C. for the past twelve months.

(iii)a list of the individuals who provided and/or supervised the health care service for which you seek payment, identification of the type of professional license each individual holds and any practice specialty of each, and documents (i.e., W-2, 1099, etc) identifying the relationship between the individual and the P.C. (E.g. whether the individual is an employee or independent contractor and how that individual is compensated),

(iv)a list of the days of the week and hours that any owner of the P.C. provides or supervises services for the P.C. during the period for which payment is sought for services rendered;

(v)all documents, including all schedules, attachments or addenda,

related to the relationship between the P.C., and/or any entity or individual that leases equipment or space to or from the P.C., or provides management, consulting, [*3]administrative or billing services to the P.C. and any payments made to any person or entity that rendered such services to the P.C.

Although an investigation into Mallela issues is sometimes warranted at the verification stage of a claim, the Insurance Superintendent’s regulations allow insurers to delay payments through the pendency of the verification process “solely for good cause.” See Andrew Carothers, MD, PC v. Insurance Companies, 13 Misc 3d 970, 2006 NY Slip Op 26372 (Civ Ct Richmond Co.), quoting Mallela, supra. The verification protocols of 11 NYCRR 65-3.5 should ordinarily be “narrowly construed,” lest they be used to promote improper delays by insurers in making required no-fault payments. Cf. Prime Psych. Serv., P.C. v. ELRAC, 2009 NY Slip Op 52579 (Civ Ct. Richmond Co.). Toward this end, it seems inappropriate to allow insurers to go far beyond the intended scope of the verification rules governing particular claims through far-reaching requests for Mallela documentation.

EUOs, in general, are supposed to afford providers an opportunity “to establish proof of claim” in doubtful cases. See §65-3.5(e). While defenses that might be precluded by Fair Price certainly may be explored, Mallela defenses present a different balance. Since a Mallela defense can be asserted in a no-fault case regardless of whether it formed a basis for the insurer’s denial, see Mulitquest, PLLC v. Allstate Ins, Co., 2007 NY Slip Op 27366 (App Term), the insurer has a less important need, at the verification stage, to engage in a far-reaching exploration of the plaintiff’s corporate structure and business practices. Moreover, it generally may do so only in circumstances where it has a founded belief that the provider is guilty of behavior “tantamount to fraud.” See Andrew Carothers, MD, PC., supra, quoting Mallela, supra.

Consequently, in circumstances such as those presented, it would have been proper for Dr. Naik to have objected, in part, to defendant’s request for such extensive document disclosure in connection with defendant’s verification and EUO requests. Cf. Cambridge Med., P.C. v. Nationwide Prop. & Cas. Ins. Co., 2008 NY Slip Op 50629 (Civ Ct Richmond Co.). But Dr. Naik did not do so. That failure to object shifts the balance back in defendant’s favor.

Most importantly, Dr. Naik’s opposition to the cross-motion makes no effort to explain his default. He does not deny receipt of the EUO notices. He does not question whether defendant had an objectively reasonable basis for seeking an EUO. And he does not raise any issue respecting the burdensome nature of the request for extensive documentation.

Instead, Dr. Naik’s sole contention is that the second EUO request was mailed three days late. The argument is unavailing. It hinges on the assumption that the

second EUO request letter “should have been mailed within 10 calendar days of the first alleged no-show.” However, the ten-day period for sending a follow-up notice runs, not from the date of the scheduled first EUO, but from a date “30 calendar days after the original request.” See section 65-3.6(b). In any event, failure to strictly comply with [*4]the time-table for making additional verification requests is not necessarily fatal. See Infinity Health Products, Ltd. v. Eveready Ins. Co., 67 AD3d 862 (2d Dept. 2009). Since

plaintiff Naik twice flouted his obligation to submit to an EUO and to provide verification of his claim, it would be inequitable, to say the least, to allow him to belatedly interpose a technical defense to his default. See Infinity Health Products, Ltd., supra.

In these circumstances, the Court concludes that defendant is entitled to summary judgment dismissing plaintiff Naik’s complaint on grounds of EUO default.

Finally, the Court rejects defendant’s argument that Dr. Gegerson’s claim must fail due to lack of causation. Defendant did not cross—move for such relief, and while plaintiffs’ summary judgment motion allows the Court to grant relief to defendant through a search of the record, the proof in the record, as a whole, at best presents a triable issue as to causation. If plaintiff Gegerson requires additional disclosure respecting defendant’s denial in order to prepare for trial on that issue, his attorneys should serve further discovery requests promptly. However, the Court sees no basis, at this time, for granting an order of preclusion to this plaintiff or granting him other relief under CPLR 3126.



Dated: April 8, 2010

CC:Mandel & Santora, Esqs.

McDonnell & Adels, P.C.