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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 18, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion to dismiss the complaint based upon plaintiff’s failure to appear at scheduled examinations under oath (EUOs).

To avail itself of the presumption of mailing, defendant must submit “either proof
of actual mailing or . . . a standard office practice and procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Actual mailing may be established by a proper “certificate [of mailing] or by [an] affidavit of one with personal knowledge” (Tracy v William Penn Life Ins. Co. of NY, 234 AD2d 745, 748 [1996]).

In the instant case, defendant failed to establish that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App [*2]Term, 2d & 11th Jud Dists 2007]); thus, defendant did not demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. Defendant’s moving papers did not contain an affidavit from a person with knowledge attesting to the fact that the EUO scheduling letters had actually been mailed or describing the standard office practice or procedure used to ensure that such requests are properly mailed or addressed, although defendant did attach copies of the certificate of mailings (cf. Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2012 NY Slip Op _____ [Appeal No. 2010-1767 K C], decided herewith]). As a result, defendant failed to establish that its denial of claim form was timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s owner to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]).

Accordingly, the order is affirmed, albeit on a ground other than the one relied upon by the Civil Court. We note that, contrary to the court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein by use of, among other things, a bold font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]; GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50194[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: July 13, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues on appeal that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, but rather to show that the denials had been sent and that, therefore, the claims had been denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY [*2]Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions are similarly without merit or improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 13, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 4, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant submitted proof establishing that the letters scheduling the examinations under oath (EUOs) and the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In the present case, the claims representative’s affidavit specifically referenced the article number on the scheduling letter and listed in the certificate of mailing. This, together with the affidavit from the [*2]team manager, which details the practices and procedures for mailing requests for examinations under oath, and the affidavit from the mail room assistant detailing the procedures in place and utilized for mail, was sufficient to demonstrate proof of mailing. Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

The appearance of a provider at a duly requested EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff does not claim to have responded in any way to the EUO requests. Therefore, plaintiff’s complaints regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 13, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), dated October 22, 2010, deemed from a judgment of the same court entered November 15, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the October 22, 2010 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the sum of $3,552.99.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. After judgment was entered, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]). [*2]

Insofar as is relevant to this appeal, the Civil Court found that defendant had failed to submit sufficient evidence to establish mailing of timely and proper denial of claim forms in order to preserve its proffered defenses. We agree.

While defendant’s initial IME scheduling letter was timely mailed, the record reflects that, after plaintiff’s assignor had failed to appear for the IME, the follow-up IME scheduling letter was not timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; § 65-3.8 [j]). As a result, defendant failed to toll the 30-day statutory time period in which it had to pay or deny the claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Insurance Law 5106 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2d Dept 2009]). Consequently, defendant’s denial of claim forms were untimely and defendant was precluded from offering its defense that a policy provision had been breached due to the assignor’s failure to appear for IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]) as well as its defense that the fees sought were improper.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 12, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 24, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant asserted that it had timely denied plaintiff’s claim based on the failure of plaintiff’s assignor to appear for two scheduled independent medical examinations (IMEs) — an initial IME scheduled for March 9, 2007 and a follow-up IME scheduled for March 23, 2007. In her affidavit, the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, stated that within 48 hours prior to the IME scheduled for March 9, 2007, plaintiff’s assignor called to cancel that IME. Accordingly, Media Referral, Inc. mailed a letter on March 8, 2007, rescheduling the March 9, 2007 IME for March 23, 2007. [*2]

Upon the record presented, we find that defendant failed to establish that plaintiff’s assignor had failed to appear for two scheduled IMEs, as defendant did not establish, as a matter of law, that its March 8, 2007 letter did not represent a mutual agreement to reschedule the first IME (see e.g. Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Consequently, defendant’s motion for summary judgment dismissing the complaint was properly denied (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 12, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 24, 2010, deemed from a judgment of the same court entered July 8, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 24, 2010 order denying a motion by plaintiff which sought summary judgment upon all of its claims other than its claim for dates of service from September 19, 2007 to September 28, 2007, and granting a cross motion by defendant which sought summary judgment dismissing all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007, dismissed the complaint as to all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the claims for which plaintiff had billed under CPT Code 97811 and for which defendant had denied all payment is vacated, the branch of defendant’s cross motion seeking summary judgment dismissing those claims is denied, and the matter is remitted to the Civil Court for all further proceedings. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on all of its claims other than its claim for dates of service from September 19, 2007 to September 28, 2007, and defendant cross-moved for summary judgment dismissing all of plaintiff’s claims other than plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007. The Civil Court, by order entered May 24, 2010, denied plaintiff’s motion and granted defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]). As the parties excepted from the Civil Court’s consideration plaintiff’s claim for dates of service from September 19, 2007 to September 28, 2007, we do not address that claim.

With respect to plaintiff’s claims for acupuncture services billed under CPT Code 97810, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s claims for the unpaid portions of those bills.

With respect to plaintiff’s claims for acupuncture services billed under CPT Code 97811, defendant paid some of those claims at a reduced rate, but denied all payment for other such claims. As to the claims for which defendant paid plaintiff at a reduced rate, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Thus, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing those claims.

As to the claims for acupuncture services billed under CPT Code 97811 for which defendant denied all payment, defendant based its denials on the ground that the CPT Code was “time based,” and that plaintiff had not provided documentation to substantiate the time for the procedure. In support of its cross motion, defendant offered no explanation as to why in some cases it had paid at the reduced rate, while in other cases it had denied all payment. As defendant failed to provide an expert’s affidavit to explain the discrepancy in how defendant interpreted the fee schedule so as to permit reduced payment in some circumstances and no payment in others (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]), defendant did not
establish its prima facie entitlement to summary judgment with respect to the branch of its cross motion seeking summary judgment dismissing those claims.

We note that plaintiff likewise did not establish its prima facie entitlement to summary judgment therefor (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the judgment is reversed, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the claims for which plaintiff had billed under CPT Code 97811 and for which defendant had denied all payment is vacated, the branch of defendant’s cross motion seeking summary judgment dismissing those claims is denied, and the matter is remitted to the Civil Court for all further proceedings on those claims.

Pesce, P.J., and Aliotta, J., concur.

Weston, J., dissents in a separate memorandum.

Weston, J., dissents and votes to affirm the judgment in the following memorandum:

I agree with the majority to the extent it upholds the portion of the Civil Court’s order awarding defendant summary judgment with respect to those bills that were paid in accordance with the workers’ compensation fee schedule. Contrary to plaintiff’s argument, chiropractors who perform acupuncture services are not entitled to be paid at the rate for medical doctors who perform the same services. Thus, defendant’s use of the workers’ compensation fee schedule to determine the chiropractor’s rate for acupuncture services was proper (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

As for plaintiff’s argument that defendant improperly denied payment for some of the sessions on the ground that they were “time-based procedures,” plaintiff failed to raise this argument in the Civil Court. Although defendant, in its cross motion, asserted that it had denied some claims under CPT Code 97811 on the ground that plaintiff had failed to state the time for the procedure, plaintiff, in opposition, never challenged this assertion. Instead, plaintiff does so for the first time on appeal, maintaining that a time was given in the documentation submitted. In my opinion, the argument is unpreserved, and I see no reason to review it in the interest of justice.

Accordingly, I vote to affirm the judgment.
Decision Date: July 12, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 12, 2012

APPEARANCES OF COUNSEL

Law Offices of Karen C. Dodson, New York City (Michael L. Rappaport of counsel), for appellant. Law Office of Ilona Finkelshteyn, Brooklyn (Emilia Rutigliano and Jonathan R. Vitarelli of counsel), for respondent.

{**37 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered April 28, 2008, limited the trial to the issue of the medical necessity of the supplies provided. At the nonjury trial, defendant proffered the testimony of Dr. Susan Corcoran, the physician who had prepared the peer review report upon which the denial of the claim at issue had been based. Dr. Corcoran testified that she had obtained the facts of the case from, among other things, the claim form, the medical records (which she listed in her report), and the police accident report. The claim form was admitted into evidence without objection, but [*2]the court sustained plaintiff’s objections to the admission into evidence of other documents, including the medical records. While Dr. Corcoran testified that she could conclude that certain items, such as the cervical pillow or the lumbar cushion, were not medically necessary based solely upon the information contained in the claim form—because she had never seen such equipment used to treat an injury of any sort—she ultimately did not attempt to proffer any testimony which would have required her to refer to documents which the court had previously held were inadmissible.

Defendant’s employee, Jemma Keating, testified as to, among other things, defendant’s practices and procedures when it receives medical documentation concerning an eligible injured person. When defendant sought, for the second time, to admit the medical documentation into evidence, the Civil Court again sustained plaintiff’s objection. The court then granted plaintiff’s motion for judgment in the entire amount sought in the complaint. A judgment was subsequently entered, from which defendant appeals.{**37 Misc 3d at 21}

The question before the court is whether defendant was entitled to have the medical records submitted to it by plaintiff (or plaintiff’s assignor or other medical professionals who had provided services or supplies to plaintiff’s assignor) admitted into evidence so as to enable Dr. Corcoran to testify regarding her expert opinion that the medical supplies at issue were not medically necessary—an opinion she reached after reviewing this medical documentation. We conclude, for the reasons set forth below, that the medical documentation should have been admitted into evidence and, thus, we reverse the judgment and remit the matter to the Civil Court for a new trial to afford defendant an opportunity to establish its defense of lack of medical necessity.

The basis for this action is plaintiff’s claim that it provided medically necessary supplies to its assignor for injuries arising from a covered accident, and that it was not paid for these supplies. In a no-fault case, submission of a properly completed claim form is all that is needed to establish, prima facie, that the supplies at issue were medically necessary (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2003]), and, upon a demonstration that the claim form is admissible pursuant to the business records exception to the hearsay rule (CPLR 4518), the claim form will constitute sufficient prima facie evidence of the fact and the amount of the loss sustained (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, in limiting the trial to the issue of the medical necessity of the supplies provided, the Civil Court implicitly found that plaintiff had established these elements. In other words, plaintiff, as the assignee of benefits under a no-fault insurance policy, demonstrated its entitlement, in the first instance, to recover payment for providing medical supplies to its assignor, without having to proffer any specific testimony or proof as to the facts underlying its claim, including the injury sustained or the treatment rendered by the prescribing physician, or to affirmatively demonstrate that the supplies{**37 Misc 3d at 22} were medically necessary. The burden then shifted to defendant to establish a lack of medical necessity.^[FN*] [*3]

However, recognizing that it would be impossible for an expert witness to proffer an opinion regarding the medical necessity of the supplies at issue without discussing the facts underlying the claim, plaintiff argues that defendant must now prove those facts itself before being allowed to present its defense that, based upon the information provided to it regarding the injury sustained and the treatment rendered, it had correctly denied the claim on the ground that the supplies were not medically necessary. We reject plaintiff’s argument.

A no-fault insurer cannot know with certainty, merely based upon reviewing medical records, what injuries a patient sustained or how he was treated—it can only act on what it has been told. The insurer is, however, permitted to deny a no-fault claim based upon a peer review report which opines that there was a lack of medical necessity for the services or supplies provided (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [b] [4]). It follows that an insurer is entitled, or even expected, to rely on the documents submitted to it by the eligible injured person (and such person’s assignees, who stand in the shoes of the assignor [see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 (2007)]), when determining whether to pay a claim or to deny it on the ground that the services or supplies provided lacked medical necessity.

However, in denying a claim for a lack of medical necessity based upon a peer review report, an insurer is not seeking to establish the truth of the facts set forth in the medical documentation submitted to it. Instead, as this court has previously explained, the insurer is merely stating that, assuming the facts set forth in the medical documentation are true, it is not required to pay for the services or supplies at issue because they were not medically necessary to treat the alleged injury (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, we reiterate that, in this context, the medical records are not being used for a hearsay purpose, but rather only to demonstrate that the information contained therein had been{**37 Misc 3d at 23} conveyed to defendant (see Quiroa v Ferenczi, 77 AD3d 901, 901 [2010]; Gelpi v 37th Ave. Realty Corp., 281 AD2d 392 [2001]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]). Here, there was testimony sufficient to establish that the medical documentation reviewed by Dr. Corcoran had in fact been submitted to defendant by plaintiff, plaintiff’s assignor, or other medical professionals who had provided no-fault benefits to plaintiff’s assignor. Accordingly, it was error to sustain plaintiff’s objection to the admissibility of the records.

We note that the holdings in Hambsch v New York City Tr. Auth. (63 NY2d 723 [1984]) and Wagman v Bradshaw (292 AD2d 84 [2002]), where the plaintiffs’ expert witnesses sought to rely on out-of-court medical records in order to prove the fact of the plaintiffs’ injuries, are not relevant to the instant case, since defendant is not relying on the medical documentation at issue to prove the fact of plaintiff’s assignor’s injuries.

In view of the foregoing, the judgment is reversed and the matter is remitted to the Civil Court for a new trial. [*4]

Pesce, P.J., Rios and Aliotta, JJ., concur.

Footnotes

Footnote *: Assuming the insurer is successful in satisfying its burden, it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 14, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff’s claims other than plaintiff’s claim for $261.60 for services rendered on November 12, 2007 and plaintiff’s claim for $33.70 for services rendered on September 5, 2008; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s claims had been timely denied for lack of medical necessity based upon an independent medical examination (IME) performed on March 22, 2008.

Defendant established that the claim denial forms annexed to its motion, which denied [*2]the claims at issue based upon a lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted a sworn March 22, 2008 IME report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for any chiropractic treatment rendered after March 22, 2008. Plaintiff did not rebut defendant’s prima facie showing.

Accordingly, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims for services rendered after March 22, 2008 for which defendant established that it had timely denied the claims. However, as to plaintiff’s claim for $261.60 for services rendered on November 12, 2007, defendant failed to establish
a lack of medical necessity for those services, which were rendered before the March 22, 2008 IME. Finally, defendant’s motion failed to address plaintiff’s claim for $33.70 for services
rendered on September 5, 2008. Thus, defendant failed to establish that it had timely denied that claim.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff’s claims other than plaintiff’s claim for $261.60 for services rendered on November 12, 2007 and plaintiff’s claim for $33.70 for services rendered on September 5, 2008.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered October 14, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court properly denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action as there is a triable issue
of fact regarding the medical necessity of the acupuncture services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 8, 2010. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that arbitration was the proper forum for this dispute because a claim by a different provider of no-fault benefits, as the assignee of the same assignor and arising from the same accident, had already been arbitrated (citing In the Matter of the Arbitration between Alexander Berenblit, M.D./Donald Joachim and Allstate Insurance Company) or, in the alternative, that the award from that arbitration, in which the arbitrator had found that plaintiff’s assignor had failed to appear for an examination under oath (EUO) and, thus, had failed to comply with a condition precedent to coverage, should be given collateral [*2]estoppel effect. The Civil Court granted defendant’s motion on the ground that “a claim for this assignor and accident had been previously submitted to the American Arbitration Association” and, therefore, “a forum has already been chosen” (citing Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]).

A prior arbitration proceeding involving one claimant provider seeking reimbursement of assigned first-party no-fault benefits does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even where the claims have been assigned by the same individual and have arisen from the same accident (see Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66 NY2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party no-fault benefits waived the right to commence an action to litigate subsequent claims arising from the same accident]). Since the arbitration proceeding upon which the court relied had been commenced by a different provider, Alexander Berenblit, M.D., not plaintiff herein, the complaint was improperly dismissed on the ground that arbitration was the proper forum for this dispute.

We reject defendant’s alternative ground for its motion as well. Defendant failed to demonstrate that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for an EUO, and therefore that it is not precluded from asserting its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, the doctrine of collateral estoppel applies only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d at 23).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012