Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co.

2011 NY Slip Op 21010 [30 Misc 3d 90]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 13, 2011

[*1]

Allstate Social Work and Psychological Services, PLLC, as Assignee of Daniel Jocelyn and Another, Appellant, v Utica Mutual Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, January 10, 2011

Allstate Social Work & Psychological Servs., PLLC, 22 Misc 3d 723, affirmed.

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.

{**30 Misc 3d at 91} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for psychological services rendered to its assignors, defendant moved for summary judgment dismissing the complaint based upon, among other things, the failure of plaintiff’s assignors to attend independent medical examinations (IMEs) by a psychologist, which were scheduled by Hudson Valley Medical Consultants (HVMC). The Civil Court granted defendant’s motion, and this appeal by plaintiff ensued.

It is uncontested that defendant established that the IME requests were timely mailed in accordance with HVMC’s standard office practices and procedures and that the assignors failed to appear for the IMEs (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, plaintiff contends that defendant’s insurance policy, which incorporates the language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires that IMEs of eligible injured persons (EIPs) be conducted only by physicians, to the exclusion of other health care providers, even when the health services for which first-party no-fault benefits are sought were provided by nonphysicians. In rejecting [*2]plaintiff’s contention, the Civil Court relied on an opinion of the State Insurance Department, dated March 12, 2004 (see 2004 Ops Gen Counsel NY Ins Dept No. 04-03-10). We find that the Insurance Department Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act (11 NYCRR part 65), read as a whole, in accordance with the rules of construction, and the State Insurance Department’s opinion, to which we accord great{**30 Misc 3d at 92} deference, lead to the conclusion that the requirement that an EIP submit to medical examinations, as set forth in the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), should not be limited strictly to examinations by physicians. Thus, in the instant matter, we find that the psychologist retained by defendant could properly have conducted the IMEs of plaintiff’s assignors, who had received psychological treatment (see generally Stephen Fogel Psychological, P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31 AD3d 509 [2006]). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health care providers who can perform IMEs to physicians, thereby delaying the processing of no-fault claims (see also Stephen Fogel Psychological, P.C., 35 AD3d at 722). Therefore, we find that defendant properly denied plaintiff’s claims based on its assignors’ failure to satisfy a condition precedent to coverage.

Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.

Golia, J.P., Pesce and Steinhardt, JJ., concur.

[*1] Decided on December 30, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570736/09.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered March 18, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered March 18, 2009, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits. Defendant demonstrated, through the affirmed peer review report of a physician, that the medical supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note that the physician opined that the medical supplies were not medically necessary because the assignor was already receiving both physical and chiropractic therapy for his injuries, treatment that the physician concluded was sufficient under the circumstances. In opposition, plaintiff, which did not submit any evidence regarding the medical necessity of the supplies, failed to raise a triable issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

McKeon, P.J., Schoenfeld, Shulman, JJ.

Enko Enterprises International, Inc., NY County Clerk’s No.
a/a/o Pena Felix, 570736/09
Plaintiff-Respondent, –
against-
Calendar No. 10-125
Clarendon National Insurance
Company,
Defendant-Appellant.
Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered March 18, 2009, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), entered March 18, 2009, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits. Defendant demonstrated, through the affirmed peer review report of a physician, that the medical supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note that the physician opined that the medical supplies were not medically necessary because the assignor was already receiving both physical and chiropractic therapy for his injuries, treatment that the physician concluded was sufficient under the circumstances. In opposition, plaintiff, which did not submit any evidence regarding the medical necessity of the supplies, failed to raise a triable issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2010

DECEMBER 30, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								May 2010 Term

Decision Date: December 30, 2010

Lenox Hill Radiology, P.C. v Tri-State Consumer Ins. Co.

2010 NY Slip Op 20530 [31 Misc 3d 13]

Accepted for Miscellaneous Reports Publication

AT1

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 27, 2011

[*1]

Lenox Hill Radiology, P.C., as Assignee of Edward Bredy, Respondent, v Tri-State Consumer Insurance Company, Appellant.

Supreme Court, Appellate Term, First Department, December 30, 2010

APPEARANCES OF COUNSEL

Corigliano, Geiger & Verrill, Jericho, for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Mineola, for respondent.

{**31 Misc 3d at 14} OPINION OF THE COURT

Per Curiam.

Judgment, entered on or about September 9, 2008, reversed, with $30 costs, and complaint dismissed.

Upon the trial of this action to recover payment of first-party no-fault benefits arising from plaintiff’s performance of four separate MRIs of plaintiff’s assignors, Civil Court awarded judgment in plaintiff’s favor in the principal amount of $4,390.16. The principal defense advanced by defendant insurer at trial was that plaintiff’s claims were premature because plaintiff had failed to respond to defendant’s verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]). Upon review of the record, we conclude that defendant presented evidence of its office mailing practice sufficient to establish that the verification requests had been mailed and presumably received by plaintiff. In this posture, and in the absence of any claim or showing that plaintiff ever responded to defendant’s timely requests for verification, we reverse the judgment appealed from and dismiss the action as premature.

At trial, defendant presented the testimony of an experienced claims examiner, Jennifer Piccolo, who both personally prepared the initial and follow-up verification requests here at issue and possessed firsthand knowledge of defendant’s standard office mailing practice. The witness’s credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the workday, when it would “go out,” and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), “obviated the necessity of producing a witness with personal knowledge of the actual mailing” of defendant’s verification letters (see Badio{**31 Misc 3d at 15} v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]). Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty [*2]it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [2007]).

Having established its routine and reasonable office practice, defendant met its burden to establish that the verification letters were mailed to (and presumably received by) plaintiff. Plaintiff not only failed to produce any countervailing evidence to rebut the presumption of receipt, but has not at any time affirmatively denied receipt of the verification letters.

Before concluding, we would be remiss in failing to note that the facts and circumstances of this action do much to illustrate the disturbing reality that first-party no-fault benefits litigation has become the antithesis of what was supposed to be an expeditious and simplified process for the payment of medical costs for injuries sustained in motor vehicle accidents (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]). Too often, lawsuits with a value akin to a small claims action become bogged down by an insistence by one party or another that mailing of routine forms be established with scientific precision, asking judges, already burdened to the breaking point with the veritable legion of no-fault cases overflowing from our court dockets (while very able arbitrators remain underutilized), to require multiple witnesses to be summoned to the courthouse, merely to establish a presumption of mailing, even in the absence of an express denial of receipt of the disputed correspondence. Unfortunately, this class of cases has spawned a body of “gotcha” jurisprudence, marked by a near manic preoccupation with form over substance.

How we have reached this sorry state is of little moment. Perhaps all branches of government need to call a “time out” and, working together, endeavor to construct a workable process to achieve what the framers of the no-fault statute had in mind when they sought to establish a simplified and expeditious process to reimburse those of our citizenry injured in automobile accidents. For sure, the system now in place is not achieving that laudable aim.

Schoenfeld, J. (dissenting). I fully agree with the majority’s sentiment that it is time for a change in no-fault litigation, which has become overly protracted and wasteful. Clearly, a{**31 Misc 3d at 16} streamlined process that yields timely, substantive results to ensure reimbursement, when appropriate, is needed. In the present case, all that was required at trial was the testimony of an individual with knowledge of defendant’s standard mailing practice. As this was not done, however, I respectfully dissent and would affirm the trial judge’s finding in favor of plaintiff.

At trial, defendant did not dispute that it received plaintiff’s bills, but averred that plaintiff failed to respond to its request for verification. In support thereof, defendant offered the testimony of Jennifer Piccolo, an experienced claims examiner.

Ms. Piccolo testified to having reviewed plaintiff’s claims, and stated why further verification was needed. As a result, she prepared verification letters and placed them in “a bin slot . . . within the department,” to be “picked up by the clerical department.” She further testified that if mail was not delivered and came back to her office, the address would be checked, and if it was wrong, it would be corrected and re-mailed. However, Ms. Piccolo candidly admitted to not knowing the mailroom procedure:

“Q: Do you have personal knowledge of the actual policies of the people who handle that mail that’s returned?

[*3]

“A: Personal knowledge, yes.

“Q: Personal knowledge as in you observe them do their day to day job with respect to . . . receipt of mail returned?

“A: No.

“Q: Nor with any of their other responsibilities with respect to mailing, correct?

“A: Correct.”

It is well established that the decision of the fact-finding court should not be disturbed unless it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence. (Frame v Maynard, 78 AD3d 508 [1st Dept 2010].) Further, the burden is on the insurer to establish proper and timely mailing of verification requests. (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 6 Misc 3d 1039[A], 2005 NY Slip Op 50348[U] [Nassau Dist Ct 2005]; see Lehrer McGovern Bovis, Inc. v Public Serv. Mut. Ins. Co., 268 AD2d 388 [1st Dept 2000].)

As noted in Badio v Liberty Mut. Fire Ins. Co. (12 AD3d 229, 230 [1st Dept 2004]): “An insurer is entitled to a presumption that a [request] was received when the proof exhibits an office practice and procedure . . . which shows that the [request has]{**31 Misc 3d at 17} been duly addressed and mailed.” (Emphasis added and internal quotation marks omitted.) In that case, “Liberty Mutual did present the testimony of an employee who possessed personal knowledge of the office mailing practice, including how the mail was picked up and counted, and how the names and addresses on each item were confirmed.” (Id.)

Clearly Ms. Piccolo, who placed her letters in a bin slot within her own particular department, did not know whether such letters were put in a postal box that day. Nor did she have personal knowledge regarding even the basic mailing practice and procedure of her company. In Westchester Med. Ctr. v Countrywide Ins. Co. (45 AD3d 676 [2d Dept 2007]), defendant contended that a claim for payment was premature because plaintiff failed to respond to its verification requests. However, the Court, in holding that the statements by a supervisor employed in defendant’s claims department were insufficient, noted that she “had no personal knowledge that the verification requests were actually mailed on the dates they were issued.” (Id. at 676.) The Court further stated that “her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that [it] was designed to ensure that the verification requests were . . . properly mailed.” (Id. at 676-677; accord Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 2d Dept 2006]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d Dept 2005].)

Accordingly, the judgment in favor of plaintiff should not be disturbed.

McKeon, P.J., and Shulman, J., concur; Schoenfeld, J., dissents in a separate opinion.

[*1] Decided on December 23, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., PESCE and STEINHARDT, JJ
2009-2001 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 16, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that defendant had issued timely and valid
claim denials. The Civil Court found that defendant’s claim denial forms “were timely and properly mailed,” and held that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. This appeal by defendant ensued.

The papers submitted in support of defendant’s motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the opinions of the peer reviewers that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s motion, plaintiff stated that it was not in possession of all the information and documentation relied upon by the peer reviewers and that these documents were “essential to justify opposition” to defendant’s motion (CPLR 3212 [f]). Plaintiff, however, failed to demonstrate that it needed these documents in order to raise a triable issue of fact as to whether the supplies at issue were medically necessary (see 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]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d [*2]146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to seek discovery of such documentation before the summary judgment motion was made (see Mega Supply & Billing, Inc. v Clarendon [reported as Larendon] Natl. Ins. Co., 28 Misc 3d 137[A], 2010 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

In light of the foregoing, as well as the Civil Court’s CPLR 3212 (g) finding that defendant’s claim denial forms were timely and properly mailed, a finding which plaintiff does not dispute on appeal, and since plaintiff failed to rebut defendant’s prima facie showing that there was a lack medical necessity for the supplies at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been granted.

Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: December 23, 2010

[*1] Decided on December 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
. 2009-113 Q C 2009-1471 Q C

Appeals from a judgment of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered December 30, 2008, and from an order of the same court (Diane A. Lebedeff, J.), entered May 27, 2009. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $4,223.17. The order denied defendant’s motion to vacate the judgment.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the appeal from the order entered May 27, 2009 is dismissed as academic.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the Civil Court (Bernice Daun Siegal, J.) found, among other things, that defendant had failed to establish, by clear and convincing evidence, its defense that plaintiffs were ineligible for reimbursement of no-fault benefits on the ground that they were operated in violation of state licensing requirements. As a result, judgment was [*2]entered in favor of plaintiffs in the principal sum of $4,223.17. Thereafter, defendant moved to vacate the judgment on the ground that the judgment awarded no-fault statutory interest based on an improper accrual date. The Civil Court (Diane A. Lebedeff, J.) denied defendant’s motion. Defendant appeals from the judgment and the post-judgment order, which appeals we consolidate for disposition.

The appeal from the post-judgment order is dismissed as academic since the issue can be reviewed on the appeal from the judgment (see Binghamton Precast & Supply v A. Servidone, Inc./Anthony Constr. Corp., 257 AD2d 731, 732 n [1999]).

It is well settled that a provider of healthcare services is ineligible for reimbursement of assigned first-party no-fault benefits “if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]). State law mandates that professional service corporations be owned and controlled only by licensed professionals (see Business Corporation Law § 1503 [a]; §§ 1507, 1508), and that licensed professionals render the services provided by such corporations (see Business Corporation Law § 1504 [a]). A professional corporation which is actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law is not entitled to be reimbursed for no-fault benefits (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

On appeal, defendant contends that the Civil Court erred in finding that defendant had to establish its defense – – that plaintiffs were operated in violation of state licensing requirements thereby making plaintiffs ineligible for reimbursement of no-fault benefits – – by clear and convincing evidence rather than merely by a preponderance of the evidence. In support of this proposition, defendant cites V.S. Med. Servs., P.C. v Allstate Ins. Co. (25 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [an insurer need only establish the defense of a staged accident by a preponderance of the evidence]). We need not ultimately decide this issue here since, upon a review of the record, we find that the evidence adduced at trial was insufficient to establish, even by a preponderance of the evidence, that plaintiffs were operated in violation of state licensing requirements. To the extent that defendant sought to establish at trial that the management company hired by plaintiffs was the entity that actually “operated” (Mallela at 319) the plaintiff corporations, the record is devoid of facts establishing any of the indicia of ownership or control by one other than plaintiffs’ licensed professional.

Where, as here, a provider is found to be entitled to reimbursement of no-fault benefits, it is entitled to no-fault statutory interest from the time that the claim is overdue (see former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1], now Insurance Department Regulations [11 NYCRR] § 65-3.9 [a]). However, statutory interest is tolled if the provider fails to request arbitration or commence a lawsuit within 30 days after receiving the denial (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007], affd 61 AD3d 202 [2009]). Since defendant failed to establish that it ever sent denial of claim forms to plaintiffs, the accrual of interest was never tolled and interest due on the claims commenced from 30 days after the claims were submitted to the insurer for payment (see Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). Upon a review of the [*3]record, we find that the Civil Court properly determined the date that interest began to accrue.

With regard to defendant’s contention that the interest was improperly compounded, former Insurance Department Regulations (11 NYCRR) § 65.15 (h) (1) provided for interest at the rate of “two percent per month, compounded.” While the aforementioned regulation was superseded on April 5, 2002 by Insurance Department Regulations (11 NYCRR) § 65-3.9 (a), which provides for “interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month,” the claims involved herein are all governed by the former Insurance Department Regulations. Defendant further asserts that to the extent that the former regulation provided for the compounding of interest, it was inconsistent with the statute. However, the statute merely provides for interest to be calculated at a rate of 2% per month and does not indicate a legislative preference for either simple or compound interest. Since the regulation providing for compound interest is not inconsistent with Insurance Law § 5106 (a) and it “is neither irrational nor unreasonable, it is entitled to deference” (East Acupuncture, P.C., 61 AD3d at 209). Accordingly, defendant’s contention that the court erred in awarding compound interest lacks merit.

Finally, defendant’s defense of statute of limitations was waived since defendant never raised said defense in its answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Ferri v Ferri, 71 AD3d 949 [2010]).

In light of the foregoing, the judgment is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 20, 2010

[*1] Decided on December 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-2179 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 21, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to plaintiff’s claim for $160.56 (for services rendered on January 10, 2007); as so modified, the order is affirmed, without costs. The matter is remitted to the Civil Court for all further proceedings on the $160.56 claim.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and the cross motion, finding that “triable issues of fact exist as to the Workers[‘] Compensation fee schedule and medical necessity.” Defendant appeals from so much of the order as denied its cross motion.

The record demonstrates that the acupuncture services at issue were rendered by a licensed acupuncturist, and that defendant timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the portions of plaintiff’s claims for acupuncture services that it determined exceeded the proper rate of reimbursement for services provided by a licensed acupuncturist. As a matter of law, an insurer may use the workers’ compensation fee [*2]schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such services (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since it is undisputed that defendant reimbursed plaintiff pursuant to such workers’ compensation fee schedule, plaintiff is not entitled to any additional reimbursement on the claims which defendant determined exceeded the proper rate of reimbursement under the fee schedule for acupuncture services rendered by a chiropractor, and defendant’s cross motion for summary judgment with respect to the unpaid portions of said claims should have been granted.

Defendant also timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) charges of $90 and $35 for services rendered on March 28, 2007, based upon independent medical examinations (IMEs) performed on March 20, 2007, which found a lack of medical necessity for further acupuncture services. In support of its cross motion for summary judgment with respect to said charges, defendant submitted IME reports and accompanying affidavits of an acupuncturist and a chiropractor which established, prima facie, a lack of medical necessity for the services at issue. Although plaintiff submitted, in opposition to the cross motion, an “Affidavit of Medical Necessity” of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s cross motion as sought summary judgment dismissing those charges should have been granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Since defendant did not make a prima facie showing of its entitlement to judgment as a matter of law with respect to the remaining claim in dispute, i.e., a charge for $160.56 (for services rendered on January 10, 2007), its motion for summary judgment was properly denied as to this claim.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2010

[*1] Decided on December 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-1827 N C.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated May 21, 2009. The order denied defendant’s motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and for an award of costs and sanctions. Plaintiff opposed the motion, and the District Court denied the
motion, finding that the affidavit of defendant’s senior litigation examiner was insufficient to establish the timely mailing of the denial of claim forms, and that the peer review report submitted by defendant failed to establish that the services rendered lacked medical necessity since the medical records and/or documents relied upon by the peer review doctor in making his determination were not annexed thereto. The instant appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant’s senior litigation examiner was sufficient to establish that defendant had timely mailed the denial of claim forms in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The claims were denied on the ground that the services rendered were not medically necessary. [*2]

Defendant’s affirmed peer review report, submitted in support of its motion, established, prima facie, that there was a lack of medical necessity for the services at issue. The fact that defendant’s peer review doctor considered medical records from plaintiff, as well as from other providers who had treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see 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]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted that plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in the assignor’s records were true, the treatment allegedly provided by plaintiff was not medically necessary. Therefore, such underlying medical records were not being used for a hearsay purpose (see e.g. Matter of State of New York v Wilkes, ___ AD3d ___, 2010 NY Slip Op 07006 [4th Dept 2010]; Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided by plaintiff was not medically necessary is irrelevant.

We further note that plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue which plaintiff provided were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat the branch of defendant’s motion seeking summary judgment. [*3]

Defendant’s remaining contention, to wit, that it was entitled to costs and sanctions for plaintiff’s allegedly frivolous conduct, lacks merit.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: December 16, 2010

[*1] Decided on December 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-728 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated October 6, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, contending that it had already paid the bills at issue. The Civil Court granted defendant’s motion, and the instant appeal by plaintiff ensued.

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case (see CPLR 3212; Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Only if the proponent meets this burden, will the burden shift to the party opposing summary judgment, who must then establish the existence of a material issue of fact, through evidentiary proof in admissible form, that would require a trial of the action (see Zuckerman v City of New York, 49 NY2d at 562). If the proponent fails to make out its prima facie case for summary judgment, its motion must be denied, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Upon a review of the record, we find that defendant did not make a prima facie showing [*2]that it had paid the four specific bills alleged by plaintiff in its complaint to be outstanding. Accordingly, defendant’s motion should have been denied (see Alvarez v Prospect Hosp., 68 NY2d at 324).

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2010

[*1] Decided on December 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-1817 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 28, 2008. The order adjourned plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment and ordered plaintiff to provide discovery.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. In the order appealed from, the court adjourned both motions to a later date and ordered plaintiff to produce employment records for its billing manager and to produce its billing manager for a deposition. Subsequent to that order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

[*1] Decided on December 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-2130 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 21, 2009. The order granted defendant’s motion to vacate the notice of trial and strike the matter from the trial calendar, and directed plaintiff to respond to defendant’s discovery demands.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served its answer in July 2004. The answer was accompanied by a demand for a verified bill of particulars, a demand for discovery and inspection, a demand for expert witness disclosure, and a notice to take deposition upon oral examination. After
plaintiff served a notice of trial and certificate of readiness on September 16, 2008, defendant moved, on October 3, 2008, for an order vacating the notice of trial and certificate of readiness and striking the action from the trial calendar on the ground that discovery had not been completed. Defendant further requested that the Civil Court direct plaintiff to comply with all outstanding discovery demands. Plaintiff opposed the motion based, inter alia, upon laches. The Civil Court granted defendant’s motion and directed plaintiff to serve verified responses to defendant’s discovery demands within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant’s motion to vacate the notice of trial and strike the matter from the trial [*2]calendar was timely, and the affirmation in support of the motion accurately stated the reason that the action was not entitled to be on the trial calendar (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), i.e., that there was outstanding discovery, an allegation which is undisputed by plaintiff. Consequently, the motion was properly granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). Contrary to plaintiff’s contention, the doctrine of laches does not warrant a denial of defendant’s motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]). Moreover, since plaintiff failed to timely challenge the propriety of defendant’s discovery demands (see CPLR 3122 [a]; 3133 [a]), it must comply with the Civil Court’s direction that it provide responses to defendant’s discovery demands, except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010