SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s motion for 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 on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court’s order, insofar as appealed from, denied defendant’s motion, finding that plaintiff’s doctor’s affirmation raised a triable issue of fact as to whether the services provided were medically necessary.

Defendant, through the submission of the affidavit of its claims representative and the affirmed independent medical examination report of its examining doctor, made a prima facie showing that it had properly and timely denied plaintiff’s claim based on lack of medical necessity (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50731[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, [*2]265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to proffer any evidence in admissible form to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]), defendant was entitled to summary judgment. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 19, 2009. The order, insofar as appealed from, denied so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006).

ORDERED that the order, insofar as appealed from, is reversed without costs, and so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006) is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006), finding that, with respect thereto, the “sole issue for trial is medical necessity of the bills that were denied based on a[n] independent medical examination.” The instant appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted an affidavit executed by the chiropractor/acupuncturist who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s “supervising acupuncturist” did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see 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]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s motion as sought dismissal of the claims at issue should have been granted (id.; see also A. [*2]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]).

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeals from orders of the Civil Court of the City of New York, Queens County, entered October 31, 2008 (Diane A. Lebedeff, J.) and February 23, 2009 (Anna Culley, J.). The order entered October 31, 2008 granted defendant’s motion to compel plaintiff to produce Drs. Livchits and Levin for depositions. The order entered February 23, 2009 granted defendant’s motion to dismiss the complaint based on plaintiff’s failure to comply with the October 31, 2008 order. The appeal from the February 23, 2009 order is deemed to be from a judgment of the same court entered February 26, 2009, which dismissed plaintiff’s complaint (see CPLR 5520 [c]).

ORDERED that the appeal from the order entered October 31, 2008 is dismissed; and it is further,

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant moved for an order compelling plaintiff to produce for depositions Dr. Levin, an owner of plaintiff, and Dr. Livchits, a physician associated with plaintiff who had allegedly treated plaintiff’s assignor. By order entered October 31, 2008, the Civil Court granted defendant’s motion and ordered plaintiff to produce Drs. Livchits and Levin for depositions within 60 days. The court further stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff must submit an affidavit to defendant so stating. Plaintiff appeals from this order. Thereafter, defendant moved to strike plaintiff’s complaint based on plaintiff’s failure to comply with the October 31, 2008 order. Plaintiff submitted opposition papers, in which it conceded that it had not produced a witness for a deposition. By order entered February 23, 2009, the Civil Court granted defendant’s motion to strike plaintiff’s complaint. Plaintiff also appeals from this order. The notice of appeal from the February 23, 2009 order is deemed to be a premature notice of appeal from the judgment entered on February 26, 2009 dismissing plaintiff’s complaint (see CPLR 5520 [c]). [*2]

The appeal from the order entered October 31, 2008 must be dismissed as the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

CPLR 3101 (a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party, or the officer, director, member, agent or employee of a party.” Consequently, the court properly ordered plaintiff to produce Drs. Livchits and Levin for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling discovery lie within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Zletz v Wetanson, 67 NY2d 711 [1986]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]). Although striking a pleading is a drastic remedy, it is appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467 [1997]). It can be inferred that a party’s conduct is willful and contumacious when the party repeatedly fails to comply with discovery demands and court orders compelling disclosure, without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484 [2008]; Dinstber v Geico Ins. Co., 32 AD3d 893 [2006]; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]). “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl, 94 NY2d at 123).

In the case at bar, plaintiff did not produce witnesses for depositions despite three motions by defendant seeking to compel plaintiff to produce such witnesses. Moreover, plaintiff failed to offer a reasonable excuse for failing to comply with the October 31, 2008 order compelling plaintiff to produce Drs. Livchits and Levin for depositions. Plaintiff belatedly stated that Dr. Livchits was no longer under its control and that it did not have to comply with the October 31, 2008 order because there was an appeal pending. However, in its order, the Civil Court specifically stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff need only provide an affidavit stating same. Not only did plaintiff not produce Drs. Livchits or Levin for depositions as required by the order, it failed to provide an affidavit stating that Dr. Livchits was no longer under its control and did not even offer a reason why it did not submit such affidavit. In addition, insofar as plaintiff asserts that it did not need to comply with the October 31, 2008 order because there was an appeal pending therefrom, since plaintiff did not move for a stay of the order pending the determination of the appeal, plaintiff was required to comply with the order (see generally Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s remaining contention lacks merit.

In light of the foregoing, we find that the Civil Court did not improvidently exercise its discretion in striking the complaint for plaintiff’s willful and contumacious failure to comply with the court’s order compelling depositions of Drs. Livchits and Levin.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order, insofar as appealed from as limited by the brief, granted 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, plaintiff moved for an order compelling defendant to appear for an examination before trial. Defendant cross-moved, based upon an affirmed peer review report, for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. In opposition to defendant’s cross motion, plaintiff asserted that the peer review report annexed to defendant’s cross motion was deficient in that it contained a stamped signature and was not in compliance with CPLR 2106. In reply, defendant submitted an affidavit from the peer review doctor in which she stated that she had “personally applied the signature on the peer review report.” The Civil Court denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted defendant’s cross motion, arguing solely that the signature on the peer review report was a stamped facsimile signature.

When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 15, 2008, deemed from a judgment of the same court entered June 16, 2008 (see CPLR 5512 [a]). The judgment, insofar as appealed from as limited by the brief, entered pursuant to the April 15, 2008 order granting plaintiff’s motion for leave to renew defendant’s prior motion and, upon such renewal, denying defendant’s prior motion to modify plaintiff’s proposed judgment by reducing the award to plaintiff of attorney’s fees set forth in plaintiff’s proposed judgment, awarded plaintiff $1,745.47 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award of attorney’s fees to plaintiff to the sum of $850; as so modified, the judgment is affirmed without costs, so much of the order entered April 15, 2008 as, upon renewal, denied defendant’s motion to reduce the proposed judgment is vacated and defendant’s motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff alleged five unpaid claims as its cause of action. The Civil Court granted plaintiff’s motion for summary judgment as to four of the claims. Following this court’s affirmance of the order (A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 13 Misc 3d 126[A], 2006 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2006]), defendant moved to modify plaintiff’s proposed judgment to limit the award of attorney’s fees to the sum of $850, rather than the proposed total of $1,745.47 sought therein, which fee had been calculated on a per claim basis. The Civil Court granted defendant’s motion. Thereafter, in light of the opinion of the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290 [2007]), the Civil Court granted plaintiff’s motion for leave to renew defendant’s motion and, upon renewal, allowed the fees as previously proposed by plaintiff. Defendant appeals from that order. Plaintiff subsequently entered a judgment which included the award of $1,745.47 as attorney’s fees, from which judgment this appeal is deemed taken (CPLR 5512 [a]).

In LMK Psychological Servs., P.C. v State Farm Mut. Aut. Ins. Co. (12 NY3d 217, 222-223 [2009]), the Court of Appeals reversed the Appellate Division and accepted the opinion of [*2]the Superintendent of Insurance (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), which “interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not . . . each separate medical bill submitted by the provider.” As a result, the Court of Appeals held that attorney’s fees are to be calculated based “on the aggregate of all bills for each insured,” to a maximum of $850 (LMK Psychological Servs., P.C., 12 NY3d at 223).

Accordingly, as there is but one insured involved herein, the award of attorney’s fees to plaintiff is reduced to the sum of $850.

Pesce, P.J. Weston and Steinhardt, JJ., concur.
Decision Date: February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal by defendant from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), deemed from the judgment entered pursuant thereto on August 11, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $340.

ORDERED that the judgment is reversed without costs and the complaint is dismissed.

In this action to recover assigned first-party no-fault benefits, the parties stipulated at trial that plaintiff is a lawfully constituted professional service corporation wholly owned by a licensed physician, that the physician was not certified to perform acupuncture at the time the acupuncture services at issue were provided, and that the services were provided by a licensed acupuncturist employed by plaintiff. The parties also stipulated that the sole issue for the Civil Court’s determination was whether plaintiff had standing to commence this action to recover benefits under the no-fault provisions of the insurance policy. In its decision, the Civil Court ruled that a lawfully formed medical professional service corporation owned by a licensed physician may receive reimbursement of no-fault benefits for acupuncture services rendered by an employee who is a licensed acupuncturist notwithstanding that the physician was not certified to perform acupuncture. Defendant appeals from that decision. We deem the appeal to be from the judgment which was subsequently entered in favor of plaintiff (see CPLR 5520 [c]).

Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12) states that “[a] provider of health care services is not eligible for reimbursement [of no-fault benefits] if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service[s]” (see e.g. Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 38-39 [App Term, 2d & 11th Jud Dists 2007]).

Only someone properly licensed or certified may practice acupuncture in New York State (Education Law § 8212; Great Wall Acupuncture v GEICO Ins. Co., Misc 3d , 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]; Lexington Acupuncture, P.C. v State [*2]Farm Ins. Co., 12 Misc 3d 90, 92 [App Term, 2d & 11th Jud Dists 2006]). Physicians are not authorized to practice acupuncture by virtue of their medical licenses; rather, they must satisfy the certification requirements if they are to practice acupuncture (Education Law §§ 8212, 8216 [3]; Education Department Regulations [8 NYCRR] § 60.9). Thus, the certificate of incorporation for a professional service corporation that seeks to obtain reimbursement of no-fault benefits for acupuncture services rendered “shall have attached thereto a certificate or certificates issued by the [Education Department] certifying that each of the proposed shareholders, directors and officers is authorized by law to practice a profession which the corporation is being organized to practice and, if applicable, that one or more of such individuals is authorized to practice [acupuncture]” (Business Corporation Law § 1503 [b]; see e.g. Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C., 12 Misc 3d at 92).

Where, as here, a professional service corporation is owned solely by a doctor who is not a certified acupuncturist at the time the acupuncture services at issue were rendered, such professional service corporation is not entitled to reimbursement of assigned no-fault benefits for such services notwithstanding the fact that the acupuncture services were rendered by a licensed acupuncturist employed by the corporation and that the corporation’s owner subsequently became a certified acupuncturist (Business Corporation Law § 1503 [b]; § 1507; Insurance Department Regulations [11 NYCRR] § 65-3.12 [a]; cf. Healthmakers Med. Group, P.C. v Travelers Indem. Co., 13 Misc 3d 136[A], 2006 NY Slip Op 52118[U] [App Term, 1st Dept 2006]). Accordingly, the judgment is reversed and the complaint dismissed.
Golia, J.P., Pesce and Weston, JJ., conur.
Decision Date: February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated March 6, 2009. The order, insofar as appealed from, upon granting plaintiff’s motion for leave to reargue the branch of plaintiff’s prior motion which sought to limit the issues to be tried pursuant to CPLR 3212 (g), denied that branch of plaintiff’s prior motion.

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, plaintiff moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers. The District Court denied the branch of plaintiff’s motion seeking summary judgment. Thereafter, plaintiff moved for leave to reargue, asserting that the court had not rendered a decision with regard to the branch of its motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. Defendant submitted opposition papers, and the District Court granted leave to reargue and, upon reargument, denied the branch of plaintiff’s motion which sought an order pursuant to CPLR 3212 (g) limiting issues of fact for trial. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit of its billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, we find no basis to disturb the District Court’s denial of the branch of plaintiff’s motion seeking a determination pursuant to CPLR 3212 (g) that plaintiff had, inter alia, established its prima facie case.

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

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 14, 2009. The order denied a petition to vacate a master arbitrator’s award and an arbitrator’s award, and confirmed the awards.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR 7511 to vacate an arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits, as well as a master arbitrator’s award which upheld the arbitrator’s award, respondent opposed the petition, asserting that the arbitrator had properly denied petitioner’s claim and that the master arbitrator had properly upheld the award. The District Court denied the petition and confirmed the awards. This appeal by petitioner ensued.

The standard applicable to judicial review of an award in a compulsory arbitration proceeding is whether the award had evidentiary support and was not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Applying this standard to the instant proceeding, we find no basis to vacate the arbitrator’s award and the master arbitrator’s award. Accordingly, the District Court properly denied the petition to vacate said awards and, rather, properly confirmed them.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Nicolai, P.J., and Iannacci, J., concur.

Molia, J., taking no part.
Decision Date: February 05, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, Second District (Sondra K. Pardes, J.), dated August 1, 2005, deemed from a judgment of the same court entered December 17, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,123.75, plus statutory interest and attorney’s fees.

This action by a provider to recover assigned first-party no-fault benefits was tried before a judge on July 11, 2005. At trial, the court stated, on the record, that “there’s a limited issue in this trial and that’s the issue of medical necessity.”
Defendant’s attorney confirmed this to be the case. The court also stated, “I don’t think there’s any dispute that a form – – a claim was submitted, that it was denied, the denial was timely, the issue was medical necessity. We all understand that.” The court asked for a copy of the “claim form,” which was apparently provided, but not entered into evidence.

Defendant proffered the testimony of its peer review doctor, who testified that the medical equipment billed for was not medically necessary. On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

Following the trial, the court dismissed plaintiff’s complaint, finding, in a written decision, that plaintiff “specifically declined to present a prima facie case.” We reverse.

Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.

Accordingly, plaintiff is entitled to an award in the principal sum of $1,123.75. The matter is remitted to the District Court for the calculation of statutory interest, an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and the entry of judgment.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated actions, defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated February 11, 2009, which granted plaintiff’s motion to restore the actions to the calendar.

Per Curiam.

Order (Ben R. Barbato, J.), dated February 11, 2009, reversed, without costs, and motion denied.

Plaintiff commenced these actions to recover first-party no-fault benefits in March 2003. Plaintiff’s assignors were injured in the same August 2001 motor vehicle accident, which [*2]defendant asserts was staged, and the actions were therefore consolidated for trial in December 2004. On January 6, 2006, the actions (each of which sought approximately $1300) were marked off the trial calendar, and plaintiff moved to restore them in January 2009.

Because plaintiff moved to restore the actions more than one year after they were stricken from the calendar, plaintiff was required to demonstrate (a) the merits of its claims; (b) a lack of prejudice to defendant; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay in moving to restore the actions (Kaufman v Bauer, 36 AD3d 481, 482 [2007]). All four requirements must be met before an abandoned action can be restored (id.).

Even assuming, arguendo, that plaintiff satisfied the remaining criteria, it failed to offer a reasonable excuse for its three-year delay in seeking to restore the actions (see generally Okun v Tanners, 11 NY3d 762 [2008]). Plaintiff offered no excuse for its prior counsel’s failure to move to restore the actions during the 19-month period between the date the cases were marked off and the date prior counsel was relieved, and failed to adequately explain its substituted counsel’s 17-month delay in moving to restore. Accordingly, plaintiff’s motion should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 02, 2010