Jeff Mollins, D.C v GEICO (2007 NY Slip Op 50467(U))

Reported in New York Official Reports at Jeff Mollins, D.C v GEICO (2007 NY Slip Op 50467(U))

Upon the foregoing cited papers and after argument, plaintiff moves for summary judgment. For the following reasons, the motion is granted.

In this action, plaintiff Complete Medical Services of NYC, P.C. seeks to recover first-party No-Fault benefits plus statutory, interest, costs, and attorneys’ fees, for medical services allegedly rendered to his assignor, Annick Vaval. Plaintiff sues, and moves for summary judgment herein, upon four bills he claims are overdue: 1) a bill for $67.40 for dates of service February 18-25, 2005, of which $33.70 remains in dispute; 2) a bill for $101.10 for dates of service March 7-30, 2005; 3) a bill for $33.70 for date of service April 6, 2005; and 4) a bill for $33.70 for date of service May 2, 2005.

In the No-Fault context, a plaintiff establishes its prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that the statutory claim form, setting forth the fact and the amount of the loss sustained, was submitted to the defendant, and that payment of no-fault benefits is overdue. See NYCRR § 65-3.8(c); Jeff Mollins, D.C. v Motor Vehicle Accident Indem. Corp., 14 Misc 3d 133(A) [App Term, [*2]1st Dept 2007]; East Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133(A) [App Term, 1st Dept 2006]. If the plaintiff makes out its prima facie case, the burden then shifts to the defendant to raise a triable issue of fact.

In support of this motion, plaintiff submits, inter alia, his supporting affidavit, as well as the claim forms at issue, and defendant’s NF-10 denials acknowledging receipt thereof, with the exception of the $33.70 bill for date of service April 6, 2005, for which no denial is submitted. Instead, for that bill, defendant submits an unidentified document that appears to be a printout from defendant. The printout contains an examiner’s name, the details of the bill, and says “amount to pay: $33.70.” In his affidavit, plaintiff states that this document was received from defendant in discovery and shows that defendant received this bill. Plaintiff further states that “Defendant attempted to pay this bill after receiving the instant litigation. A copy of defendant’s check is annexed to plaintiff’s motion as Exhibit G’.” There is, however, no Exhibit G to plaintiff’s moving papers, nor any check to be found in the record. Furthermore, it is not clear what plaintiff means when he says that defendant attempted to pay this bill. Did defendant issue a check? Did plaintiff cash the check? Did the check clear? Therefore, the Court finds that plaintiff has made out its prima facie case for entitlement to summary judgment on all but the claim for $33.70 for date of service April 6, 2005.

In opposition, defendant asserts that the claims were all denied on the ground of lack of medical necessity based upon Independent Medical Examinations (IMEs), with the exception of the $33.70 bill for date of service April 6, 2005 which was allegedly paid. As for the three remaining claims for which plaintiff made out its prima facie case, defendant submits copies of the corresponding NF-10 denials, as well as the affidavit of an employee in its Claims Division, Christen Hunt. The NF-10 for the bill for dates of service February 18-25, 2005 paid the claim for $33.70 for services rendered on February 18, but denied the claim for $33.70 for services rendered on February 25. The NF-10 states that the partial denial is based upon three IMEs conducted on February 11, 2005, which cut off reimbursement for any further treatment as of February 20, 2005. However, there is no evidence that plaintiff or the assignor herself were ever notified of this IME cut-off prior to February 25. Therefore, defendant’s defense of IME cut-off must fail.

The denial of the $101.10 bill for dates of service March 7-30, 2005 also references the three IMEs conducted on February 11, 2005. However, this denial states that the IME cut-off date for further treatment became effective on April 25, 2005. It is not clear why the cut-off date here is later than the one contained on the prior NF-10. More important, there is no explanation as to how an April 25 cut-off date would make the assignor ineligible for treatment rendered in March. Therefore, defendant’s defense of IME cut-off for this bill must also fail.

Finally, the denial of the $33.70 bill for date of service May 2, 2005 mirrors the afore-mentioned one for the March dates of service, and likewise contains an IME cut-off date of April 25, 2005. Since there is no evidence that plaintiff or the assignor herself were ever notified of this IME cut-off prior to May 2, defendant’s defense of IME cut-off must fail.

Aside from the foregoing, defendant’s denials are defective for another reason: The denials failed to either set forth, in sum and substance the “factual basis and medical rationale” for the cut-off, attach copies of the IME reports, or indicate that said reports were being sent under separate cover. See Contempo Med. Care, P.C. v Travelers Indem. Ins. Co., 12 Misc 3d 139(A) [App Term, 2d & 11th Jud Dists 2006]. As a result, defendant’s denials fail to preserve the defense of lack of medical necessity, and defendant is precluded from raising that defense. Since defendant raises no other triable issue in its opposition, plaintiff’s motion for summary judgment must be granted.

Accordingly, plaintiff is awarded summary judgment in the amount of $168.50 plus statutory interest, costs, and attorneys’ fees.

This is the Decision and Order of the Court.

[*3]Dated:



ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________