[*1]

Civil Court of the City of New York, Queens County, March 21, 2005

APPEARANCES OF COUNSEL

Baker & Barshay, LLP (David Barshay of counsel), for plaintiff. Robert P. Tusa (Julie Jassem of counsel), for defendant.

OPINION OF THE COURT

Gerald J. Dunbar, J.

Plaintiff, medical supplies provider Sunnyside Plus, Inc., assignee of Rene Attias, instituted this action pursuant to Insurance Law § 5106 to recover first-party no-fault benefits from defendant insurer Allstate. Plaintiff Sunnyside was denied payment for medical supplies furnished to the assignor Rene Attias, pursuant to a prescription for said supplies issued by the insured’s treating physician, Dr. Viviane Etienne, M.D., associated with the Astoria Wellness Medical, P.C.

The assignor, Rene Attias, was insured under a no-fault policy issued by Allstate which was in force at the time of the accident in which the vehicle driven by the assignor was struck from the rear. The parties stipulated that the no-fault benefits were properly assigned to Sunnyside who submitted a claim form to Allstate in the amount of $1,159.25 for medical equipment of a LSO with APL control custom fitted; the parties further stipulated that the defendant timely denied payment on the grounds of medical necessity based upon a peer review, and that the only issue for trial was the medical necessity of said medical equipment.

The court conducted the bench trial on March 15, 2005. At trial, the defendant stipulated that plaintiff had met its prima facie case and the only issue reserved for trial was the defendant’s defense of lack of medical necessity pursuant to Insurance Law § 5102 (a) (1) as set forth in defendant’s answer as the third affirmative defense.

The defendant called one witness, Dr. William Ross, a licensed medical doctor who was qualified as an expert by agreement between counsel, and author of a peer review upon [*2]which the defendant denied the claim. Dr. Ross testified that his peer review relied upon four items provided to him by a third-party vendor of peer reviews retained by the defendant. These were: (1) the original bill for medical supplies submitted to Allstate, (2) the initial medical examination report of Dr. Viviane Etienne, M.D., (3) Dr. Etienne’s prescription dated November 15, 2001 for a “LSO [with] APL control (custom fitted),” and (4) the radiology report of Dr. C. Beinart, M.D., of Radiology Imaging Associates addressed to Dr. Etienne the treating physician.

After Dr. Ross was asked to render his professional opinion based upon the documents, plaintiff’s counsel objected, and the court allowed a voir dire of the witness. Dr. Ross testified on voir dire that he did not examine Rene Attias, did not view the MRI, and based his peer review solely upon the treating doctor’s reports. Neither Dr. Etienne’s report as the treating physician, nor the radiology report were offered or in evidence. The question before the court was whether the expert witness could base his opinion solely upon out-of-court hearsay documents not in evidence. Clearly, if the MRI itself or either report were in evidence, Dr. Ross could opine on documents in evidence.

To be admissible an expert’s opinion must be based upon either facts personally known to the expert or facts or documents in evidence. (Cassano v Hagstrom, 5 NY2d 643 [1959]; Prince, Richardson on Evidence § 7-308 [Farrell 11th ed].)

“It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.” (Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002].)

The Court of Appeals has held that an expert witness may testify that he or she relied on out-of-court material provided that it is of a kind generally accepted in the profession as reliable and there is evidence presented establishing the reliability of the out-of-court material referred to by the witness. (Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984].) The Court of Appeals went on to take the opportunity to reiterate the requirement that, “[i]n order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material” (id. at 726). There was simply no evidence presented regarding Dr. Etienne, the health care professional who prepared the initial examination report, and Dr. Beinart, who prepared the radiologist’s report, or under what circumstances either were prepared. (Faust v New York City Tr. Auth., 4 Misc 3d 89, 91 [App Term, 2d & 11th Jud Dists 2004].) The mere fact that the report was a medical report does not suffice to render it reliable. (Borden v Brady, 92 AD2d 983, 984 [3d Dept 1983]; Wagman, 292 AD2d at 87, supra; People v Sugden, 35 NY2d 453, 460-461 [1974]; see also, Barker, Current Trends on Rules for Hearsay, 75 NY St BJ 28 [May 2003].)

The defendant additionally failed to offer the MRI film under the convenient method established by the Legislature for the admission of MRI film without any foundation. (CPLR [*3]4532-a.) Similarly, the defendant offered no information on the reliability of the out-of-court hearsay treating physician’s reports; to the contrary, Dr. Ross stated he never examined the patient Rene Attias, and that he knew nothing about the practices of either Dr. Etienne or Dr. Beinart, which would allow him to opine about the reliability of their reports. Dr. Ross was left with nothing in evidence upon which to base his opinion, nor were there out-of-court statements by a witness who testified in the proceeding upon which Dr. Ross could opine. Dr. Ross was thereby precluded from offering his opinion, for which there was no factual basis in evidence, as a matter of law. (Adkins v Queens Van-Plan, 293 AD2d 503, 504 [2d Dept 2002]; Flamio v State of New York, 132 AD2d 594 [2d Dept 1987]; see also, Philippe v Ivory, 297 AD2d 666 [2d Dept 2002]; Greggs v Kurlan, 290 AD2d 533 [2d Dept 2002].)

Based upon the credible and admissible evidence, the defendant has failed to prove its defense of lack of medical necessity by a fair preponderance of the evidence. Judgment for the plaintiff to be entered in the amount of $1,159.25, plus statutory interest (11 NYCRR 65.15), statutory attorney’s fees (11 NYCRR 65.17), together with the costs and disbursements of this action.

[*1]

Civil Court of the City of New York, Queens County, March 15, 2005

APPEARANCES OF COUNSEL

Freiberg & Peck, LLP, New York City (Meredith P. Gursky of counsel), for defendant. Baker, Barshay & Neuwirth, LLP, Hauppauge (Michael C. Hayes of counsel), for plaintiff.

OPINION OF THE COURT

Charles J. Markey, J.

The immortal Justice Cardozo stated: “[W]hile the workings of a novel method are untested by a rich experience[,] [t]here must be advance by trial and error” (Louis K. Liggett Co. v Lee, 288 US 517, 586 [1933] [dissenting op]). In the recent, dramatic proliferation of actions for no-fault first-party benefits, Civil Court judges are the foot soldiers required to address, in the first instance, various novel legal issues, until their appellate colleagues, often weighing the pragmatic consequences of a particular holding, get the opportunity to review decisions and thereby formulate a body of governing jurisprudence.

The important, principal issue of first impression in this state raised by the present case is the appropriate scope of an examination before trial (EBT) in an action by a health care provider for no-fault first-party benefits. Even more to the point, the main issue is whether the recent holding of first impression in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [Civ Ct, Queens County 2005]), making the insurer’s denial of claim form, the NF-10, “the appropriate yardstick for measuring the legitimacy of the demanded discovery” (7 Misc 3d at 680), concerning various disclosure devices available under CPLR article 31 other than depositions, now should be extended to EBTs in setting their parameters. Alternatively put, the issue is whether the subject matter of the questioning at an EBT in a case for no-fault first-party benefits—absent a case of fraud (e.g., staged accident) or lack of coverage—should be confined, in principal part, to the four corners of the NF-10.

In a summons and complaint dated August 5, 2002 and served on August 16, 2002, Baker & Barshay, LLP, on behalf of its client, plaintiff health care provider Socrates Psychological Services, P.C., sought the sum of $1,061.62 for services allegedly provided to its assignor, Aleksander Romanov. The defendant insurer, Progressive Casualty Insurance Company, was then represented by Delany & O’Brien. [*2]

Progressive’s answer contained 13 “separate and complete” affirmative defenses. With its answer, dated September 30, 2002, Progressive simultaneously served a demand for an EBT. Baker Barshay countered by also serving demands for an EBT and interrogatories. The simultaneous service of an EBT notice with a demand for responses to a set of written interrogatories, done by the attorneys for the parties in 2002, was later barred in Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]).

The action was filed with the Clerk of the Court on June 25, 2003. Progressive’s new counsel, Freiberg & Peck, LLP, moved to compel responses to defendant’s discovery demands, and Baker Barshay, on behalf of Socrates, cross-moved for similar relief. On October 27, 2003, the parties’ counsel, resolving the motion and cross motion, prepared a stipulation in court that was so ordered by the undersigned. It required that the parties, at the risk of preclusion at trial, exchange answers to all documentary discovery demands two weeks in advance of Socrates’s deposition. The so-ordered stipulation, dated October 27, 2003, erroneously scheduled plaintiff’s deposition for January 7, 2003, although a letter by defense counsel mailed on October 29, 2003, made clear that the date on the stipulation for the EBT was an obvious typographical error and that it would be held on January 7, 2004.

On January 7, 2004, the deposition of Socrates did not occur, and defense counsel Freiberg & Peck, on the same day, served a motion to strike plaintiff’s pleadings for its absence at the court-ordered EBT. By cross motion, dated February 25, 2004, Socrates’s counsel, then reformed as Baker, Barshay & Neuwirth, LLP, retaliated, seeking to strike defendant Progressive’s answer for its failure to answer plaintiff’s discovery demands, as required by the so-ordered stipulation.

A second round of motions and cross motions was exchanged, again rehashing the parties’ dispute on a matter as basic as discovery, this time occupying the energies of another Judge, the Honorable Kevin J. Kerrigan. Judge Kerrigan so ordered another stipulation dated March 2, 2004, believing that he had successfully brokered an agreement between the two intransigent parties. Since the copy of Judge Kerrigan’s so-ordered stipulation attached to Progressive’s present and third motion to strike Socrates’s complaint is completely illegible and the original is missing from the Court Clerk’s file, this court determined its gist from other exhibits annexed to defendant’s motion (a confirmation letter and a transcript of a deposition noting an absent witness). Judge Kerrigan, in his order, reportedly required both parties to produce witnesses for an EBT on or before May 6, 2004, at the risk of striking a pleading for the failure to so produce.

On May 6, 2004, Meredith Gursky, Esq., an associate of Freiberg & Peck who had arranged for a deposition, made a statement on the record noting her production of a witness on behalf of defendant Progressive and the absence of plaintiff Socrates and its counsel. Her making a record before a court reporter was a smart, protective measure, although not necessary to gain dismissal of the complaint (see, Pueblo Med. Treatment v Progressive Cas. Ins. Co., 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [Civ Ct, Queens County 2005] [involving the same law firms appearing in this case; complaint dismissed for failure to abide by a court-ordered stipulation]).

On June 24, 2004, a third volley of motions and cross motions was launched, constituting the present dispute. Freiberg & Peck served a motion to strike plaintiff’s complaint and sought [*3]sanctions against Baker Barshay in the amount of $132.50 for the wasted deposition session of May 6, 2004, and related costs. The motion first appeared on August 6, 2004, in Part 41, where dispositive motions in no-fault actions are heard. On that date, Judge Denis Butler set a briefing schedule, endorsing it on the motion papers (Socrates was to serve either a cross motion or opposition papers no later than September 28, 2004; Progressive was to serve any opposition to a cross motion or, in the absence of a cross motion, its reply no later than October 27, 2004; and Socrates’s reply, should it have made a cross motion, was to be served by November 16, 2004). The new return date was scheduled for March 3, 2005—a full eight months later, and a “Final” marking was given.^[FN1]

Plaintiff’s counsel, Baker Barshay, timely served and filed the present cross motion seeking summary judgment, predicated on its allegation that Progressive’s denial of claim, the NF-10, was untimely. In its cross motion, Socrates first addressed Progressive’s motion to strike the complaint. First, Socrates complained that Progressive never responded to plaintiff’s demand for verified answers to interrogatories. Without such advance discovery, plaintiff should not be thrown blindly into a deposition. Second, Socrates maintained that the stipulation that was so ordered by the undersigned in 2003 expressly made any EBT contingent on the prior exchange of written discovery between the parties. Baker Barshay had complied with its production, but Freiberg & Peck still had not done so. [*4]

Third, and most significant, Baker Barshay complained that Freiberg & Peck, in numerous other litigations between the two law firms acting as counsel, consistently abused EBT notices. Baker Barshay contended that Freiberg & Peck first takes an EBT of a managing or administrative employee of a plaintiff health care provider only to complain, subsequently and inevitably, that such a deposition proved to be insufficient and that now it needed to depose the actual doctor or health care professional who rendered the services.

Rather than adhere to the briefing schedule set by Judge Butler, on August 6, 2004, requiring that Progressive’s opposition papers to a cross motion be served on October 27, 2004, Freiberg & Peck, by an associate other than Ms. Gursky, prepared an affirmation in opposition dated March 2, 2005—over four months late—and attempted to hand the original to the undersigned on the return date of March 3, 2005. This court, from the bench, rejected the papers, and endorsed the front sheet of the attempted opposition: “UNTIMELY PAPERS—not to be read.” The court further notes that, not only were Freiberg & Peck’s responsive papers untimely, with no excuse, let alone a compelling justification, offered for the incredible lateness, but they were not even accompanied by an affidavit of service! Adhering to its original position, this court has not read or considered Progressive’s untimely opposition to the present cross motion and declines to number such late papers for purposes of the record. Accordingly, the assertions made by Baker Barshay in its cross motion, on behalf of Socrates, are not refuted.

This case, even before tackling the principal issue of the proper scope of EBTs in a no-fault first-party benefits litigation, raises several important policy decisions. First, this court underscores the importance of adhering to a briefing schedule. In countless short-form orders, this court has indicated that briefing schedules are not mere, precatory guidelines, and it has invariably rejected late responsive papers no matter how serious or worthy the contentions contained therein. If this court seeks to earn the respect of its briefing deadlines by judicial colleagues, it must scrupulously enforce the schedules set forth by fellow judges. Failure to enforce those deadlines, absent a highly compelling circumstance, furthermore, sends the wrong message to the bar and permits lawyers to conclude falsely that such deadlines are malleable (see, Starke v Bergles, 444 F Supp 469, 470 [ED Wis 1978] [United States District Court refused to read and consider reply papers that were untimely under briefing schedule]; accord, Instituto Nacional De Comercializacion Agricola [Indeca] v Continental Ill. Natl. Bank & Trust Co., 858 F2d 1264, 1270-1271 [7th Cir 1988] [violation of briefing schedule is a serious breach]; People v Velit, 2002 NY Slip Op 50066[U] [Crim Ct, Queens County 2002] [briefing schedule is not a mere precatory guideline]; see generally, Pueblo Med. Treatment, 2005 NY Slip Op 50287[U], *3, supra [court, in rejecting a second chance to take a so-ordered deposition, stated: “Any other result . . . would send a mischievous message that apparent finality actually does not mean final”]).

Second, this court is concerned about Baker Barshay’s repeated attempts to sidestep its obligations of providing court-ordered discovery. Freiberg & Peck now has had to bring three motions to compel discovery, in this action alone, on a matter as basic as a deposition. Hardly any discovery has been exchanged, no witnesses have been produced, and this Civil Court action is still languishing—now almost three years since the service of the summons and complaint—despite the efforts of two judges reviewing three motions, three cross motions, and two so-ordered stipulations. [*5]

Whenever this court identifies conduct that is inconsistent with professional norms and then comments on a lawyer’s negligent lapses or active breaches, it does not do so in an effort to upbraid, embarrass, and humiliate, but rather to help eliminate the disrespect exhibited by some lawyers to their obligations, their adversaries, and the courts. By identifying and exposing such conduct, this court hopes to educate the bar and thereby deter similar lapses by other lawyers. The public’s confidence in the operation and integrity of the courts requires no less.

Holmes’s intriguing maxim that “[t]he life of the law has not been logic: it has been experience” (O.W. Holmes, Jr., The Common Law, at 1 [Little, Brown & Co. 1st ed 1881]) can be appreciated by a contextual understanding of events, depicting ruthless posturing even in the cottage industry of the no-fault first-party benefits bar (see, Vladimir Zlatnick, M.D., P.C., 2 Misc 3d 347, 348 [2003], supra). In a seminal case during the proliferation of no-fault first-party benefits litigation, Albatros Med. v Government Empls. Ins. Co. (196 Misc 2d 656 [Civ Ct, Queens County 2003]), discussed in further detail below, Baker Barshay was unsuccessful in arguing to Judge Edgar G. Walker that EBTs were unnecessary in such civil actions. Following Albatros, Baker Barshay and other plaintiffs’ law firms were then hit with tidal waves of EBT notices by defense firms. The service of an EBT notice, together with an answer, is now an automatic, reflexive knee-jerk reaction by every defense firm in the no-fault first-party benefits field (see, Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co., 2 Misc 3d at 348, supra). As discussed below, the EBT notices, like anything else in life, serve a salutary purpose, but are also capable of being abused, even apart from the content of the entire deposition itself.

The next step in the evolution of the use of EBT notices in a no-fault first-party benefits case was the court’s holding in Vladimir Zlatnick, M.D., P.C. (id.). Zlatnick attempted to curb, in no-fault cases, the defense bar’s resorting en masse to EBT notices, coupled to a demand for answers to a set of written interrogatories. In Zlatnick, where Baker Barshay represented the plaintiff, the court, as stated above, prohibited a party from simultaneously serving an EBT notice and a demand for answers to written interrogatories. The court in Zlatnick, employing a line of reasoning from commercial litigation, prohibited such wasteful duplication of discovery. Under Zlatnick, a party would be permitted resort to a second discovery device, either an EBT or interrogatories, solely to fill in any gaps following the use of the first form of disclosure. Thus, if plaintiff provided answers to interrogatories, defendant’s resort to an EBT, if truly needed, should be strictly confined to completing any gaps in the prior disclosure and not be manipulated into a vehicle to harass a plaintiff by taking discovery de novo over the same terrain.

Despite the Zlatnick holding, some litigants, principally defendant insurers, continue to serve simultaneously an EBT notice and a demand to answer a set of interrogatories. To halt such violations of Zlatnick and to put enforcement muscle to that ruling, the court in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 [2005], supra) recently made clear, inter alia, that it would penalize a Zlatnick violation by striking one or both of the offending, duplicative notices.

In the face of multitudinous defense discovery motions demanding EBTs, Baker Barshay entered into many so-ordered stipulations in this court, agreeing to an EBT and to preclusion of evidence for failure of its plaintiff clients to attend a deposition. Only later, presumably overwhelmed by the number of obligations into which it had contractually entered and eventually cognizant of the full sweep and import of its actions, Baker Barshay sought to sidestep or ignore [*6]the so-ordered stipulations and even tried to redefine the word “preclusion.”

Out of fairness to Baker Barshay, it is conceivable that its attempt to discount its own stipulations may have been the product of client realities. Specifically, the stratagem of some, not all, defense counsel, in many litigations for no-fault first-party benefits, following Albatros, was to serve an EBT notice upon a plaintiff health care provider, not in a genuine desire to procure essential disclosure; it was served to force the plaintiffs’ no-fault bar to buckle under the weight of attending depositions in countless cases for innumerable hours, without any parameters, when each action sought only relatively little amounts of money, such as the sum of $1,061.62 in the present case (see, Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d at 686, supra [“As a practical consideration, one must surely wonder whether in claims for minor sums of money, such as those in three of the six cases, seeking $202.20, $575, and $505.50 (the other three cases each involving only about $1,800), whether a plaintiff’s counsel will even consider it affordable or ‘smart business’ to spend several hours in drafting opposition papers and traveling to and attending court appearances to challenge a patently oppressive demand”]).

A principal of a plaintiff health care provider, its doctors, and managerial staff, moreover, could be pulled away from their practices and livelihoods for a time period that could entail days, litigating over minor sums. Health care providers would bewail their plight to their counsel, whereas defense counsel, well compensated by insurance carriers for both attending and stretching out a deposition, would experience no discomfort.

Mindful of the aforementioned maxim by Holmes, this is the hard core reality of no-fault first-party benefits litigation as it is currently practiced. In many cases, an EBT in a no-fault case may conceivably yield helpful information pertinent to a defense that was specifically contained in a timely served NF-10. However, the undersigned, in over three years of presiding over no-fault first-party benefits bench and jury trials, cannot recall a single instance of a defendant insurer attempting to use a plaintiff’s EBT transcript at trial, either in its case-in-chief or by way of impeachment.

In making the aforementioned observations, this court is not imputing any bad motive to Freiberg & Peck in this action. Quite the contrary, the court believes that Freiberg & Peck was sincere in its desire and genuine in its need, throughout the present case, to depose the health care provider about the psychological services allegedly rendered so that it could competently defend its client. The aforementioned observations are meant solely (1) to supply a backdrop as to Baker Barshay’s actions, although a failure to meet one’s commitments cannot be excused, especially when expressed in a court-ordered stipulation, and (2) to illuminate the latent abuse of EBTs in a no-fault first-party benefits case.

Baker Barshay’s attempts to renounce, sidestep, or wriggle out of its so-ordered commitments went without success, resulting only in dismissals of its cases and judicial condemnation of its practices (see, e.g., Pueblo Med. Treatment, 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [2005], supra; Hoss Med. Servs., P.C. v Government Empls. Ins. Co., 4 Misc 3d 521 [Civ Ct, Queens County 2004, Walker & Siegal, JJ.]).

This court now has to discern how to approach Socrates’s cross motion for summary judgment. Three options are available. One approach would be to reject it summarily. It could [*7]well be argued that the cross motion, following two so-ordered stipulations, was nothing more than plaintiff’s ploy to invoke the automatic stay of discovery that attaches upon making a dispositive motion, thereby further delaying Socrates’s EBT. The two so-ordered stipulations did not contain any language directing that discovery proceed notwithstanding the pendency of any dispositive motion (CPLR 3214 [b]). In the absence of such indispensable language, the fact that the two discovery stipulations in this action were so ordered by a court still does not permit an exception to the general rule that a dispositive motion stays all discovery (see, Rizz Mgt. Inc. v Kemper Ins. Co., 4 Misc 3d 1005[A], 2004 NY Slip Op 50723[U] [Civ Ct, Queens County 2004, Siegal, J.] [reviving a so-ordered stipulation following the denial of a summary judgment motion]).

This court, in its discretion, in light of the procedural history of this case, as a second alternative, could also deny the cross motion for summary judgment without prejudice to its renewal following the completion of the so-ordered discovery (see, McGlynn v Palace Co., 262 AD2d 116, 117 [1st Dept 1999]). However, in light of the circumstances of this case, especially the years of antagonism and hostilities between the parties’ counsel that have produced a lot of motions—but no movement—in this case, this court opts for a third alternative, of tackling Socrates’s present cross motion on its merits.

The court must deny the cross motion for two reasons. First, plaintiff’s counsel failed to include the entire denial of claim form, the NF-10. The copy of the NF-10 attached as an exhibit to plaintiff’s cross motion contained only one sheet of the denial, but it surely must have contained more than one sheet because, in the space provided for stating the reason for the denial, the insurer typed in “see attached.” Perhaps Baker Barshay believed that the chambers of the undersigned was overwhelmed with paper and did not want to further burden the court with the remainder of the exhibit. Obviously, plaintiff’s counsel’s omission raises disturbing questions about either its carelessness or level of candor with the court. This court insists on seeing an entire NF-10 and not simply the page containing only the dates of the claim’s mailing and its receipt by the insurer.

Second, the date of the bill, as reflected on the sole sheet of the NF-10 provided by plaintiff’s counsel, is January 15, 2001. The NF-10 continues, however, to state that the insurer received the bill on June 29, 2001 and allegedly denied it on July 19, 2001. The plaintiff failed to make a prima facie case for summary judgment because it did not include proof of mailing of the claim and also did not offer a proper explanation of the relevant dates (see, SZ Med. P.C. v State-Wide Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [App Term, 2d Dept 2005]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d Dept 2005]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d Dept 2004]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d Dept 2004]; Amaze Med. Supply v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d Dept 2004]; Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 2d Dept 2004]; PDG Psychological P.C. v State Farm Mut. Ins. Co., 6 Misc 3d 1022[A], 2005 NY Slip Op 50150[U] [Civ Ct, Kings County 2005]; Allstate Social Work & Psychological Svcs PLLC v GEICO Gen. [*8]Ins. Co., 6 Misc 3d 1010[A], 2005 NY Slip Op 50024[U] [Civ Ct, Kings County 2005]).

“[T]he court’s role in a motion for summary judgment is one of issue spotting and not one of issue determination” (Scanlon v Travelers Ins. Co., 849 F Supp 836, 839 [ND NY 1994]; accord, Adickes v S.H. Kress & Co., 398 US 144, 157 [1970] [movant on summary judgment has “the burden of showing the absence of a genuine issue as to any material fact”]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [court’s role on such a motion is issue finding, not issue determination]; Rivera v 2160 Realty Co., L.L.C., 10 AD3d 503, 505 [1st Dept 2004]). The plaintiff’s cross motion for summary judgment is, accordingly, denied.

Since discovery needs to continue in this three-year-old litigation, the court next addresses the primary issue in this case, and one of first impression in this state, of the appropriate parameters of depositions in no-fault first-party benefits litigation. In studying the matter, the court has reviewed each of the pleadings and all the motions and cross motions in the prior proceedings. Baker Barshay, as stated, in opposing the present defense motion, voiced its fear that Freiberg & Peck would not be satiated by one EBT of a managerial employee of a plaintiff health care provider, but predictably would take that deposition and then, claiming dissatisfaction with the testimony procured from the first witness, would demand to depose the doctor or professional who rendered the services.

Baker Barshay’s concern is well-founded. In a prior motion in this case, Freiberg & Peck not only quoted, but put in prominent and isolated boldface type, almost by way of sending a menacing message, the following quotation from Judge Walker’s opinion in Albatros (196 Misc 2d 656, 658 [2003], supra): “Plaintiff, having elected to proceed by way of litigation in the courts, must comply with CPLR article 31. In rejecting the expeditious and economical option of arbitration, plaintiff cannot now seek to use the rules of arbitration in the courts.”

First, Judge Walker’s seminal opinion in Albatros granted to insurers the right to take EBTs in civil actions for no-fault first-party benefits, rejecting Baker Barshay’s position in that case. However, contrary to the implication of defense counsel, nothing in Albatros provides a defendant insurance carrier the right to distort a deposition into a wholesale inquisition of a plaintiff health care provider, to keep its staff hostage under questioning for days, or to demand, as a matter of entitlement in every no-fault case, to take successive EBTs. The Albatros court’s reference to the “expeditious and economical” route afforded by arbitration was not intended as some reason for punishing a plaintiff for not having so proceeded. It was no more than an observation kindred to that given to litigants on a typical evening in the Small Claims Part of this court that if they opt to be heard by an arbitrator, rather than insist upon trial before a judge of the court, their case will be heard quickly and efficiently. Sure, if a litigant chooses, whatever the nature of the dispute, to commence and maintain a civil action, as opposed to proceeding to arbitration, a court will clothe the parties with the panoply of protections provided by law, here, those disclosure devices available under the CPLR.

Baker Barshay’s opposition to the present defense motion to strike also has a substantial basis because of many defendants’ improper use of the various discovery devices afforded by article 31 of the CPLR. The court, in Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (7 Misc 3d 675 25063 [2005], supra), illustrated, by demonstrating in six different motions consolidated for purposes [*9]of the decision, how defense firms in no-fault first-party benefits cases were ignoring the particular purposes of each type of notice of discovery and using them interchangeably, thereby abusing plaintiffs. The court in Metropolitan Radiological refused to condone the practice and the patently abusive demands contained in the notices and denied each of the six defense motions to compel production, to preclude evidence, or to strike a pleading, although made on default. In light of the prevalent abuses of discovery notices by defense firms in that case—and two of the consolidated six cases in Metropolitan Radiological involved motions by Freiberg & Peck—Baker Barshay’s concern that EBTs will similarly be abused in the present case was not paranoid.

The court in Metropolitan Radiological analyzed, under pertinent appellate rulings, that the lodestar for determining a no-fault first-party benefits case is the denial of claim, the NF-10. To avoid a plaintiff’s successful motion for summary judgment, an insurer must state, with a high degree of specificity, in its NF-10, any applicable defense, except for fraud (presently defined only as a staged accident)^[FN2] or lack of coverage, and must stand or fall upon those defenses. If not raised in a timely fashion and with specificity, those defenses will not be entertained later, no matter how meritorious they may be in substance (Metropolitan Radiological, 7 Misc 3d 675 [2005], supra [citing cases]; see, Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]; Socrates Psychological Servs., P.C. v Lumbermans Mut. Cas. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50690[U] [App Term, 1st Dept 2004] [per curiam]).

The court in Metropolitan Radiological continued that the NF-10 is the only appropriate yardstick for measuring a discovery device’s propriety, not a perusal of any number of the “separate and complete” or “separate and distinct” affirmative defenses contained in the defendant insurer’s answer. The court stated:

“In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and [*10]was done so timely. . . .

“Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.” (Metropolitan Radiological, 7 Misc 3d at 679-680.)

The reasoning of Metropolitan Radiological applies equally to the present situation of the appropriate scope of an EBT. This court holds that, apart from eliciting appropriate pedigree and background information of the witness, the subject matter of a deposition in a no-fault first-party benefits case is to be limited to the defenses that were specifically raised in the NF-10. The four corners of the denial of claim form, the NF-10, and defenses there stated with a high degree of specificity (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]), should yield the examining attorney at an EBT sufficient and fertile avenues of disclosure.

The questioning at an EBT in appropriate cases of fraud and lack of coverage—as defined by appellate courts as exceptions to the general rule that defenses not specifically and timely asserted in the denial of claim, the NF-10, are deemed waived—is not to be limited to the NF-10, especially in light of the Court of Appeals’ avowed public policy to help combat fraudulent no-fault first-party benefits claims (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; accord, United States v Lucien, 347 F3d 45 [2d Cir 2003] [affirming convictions of defendants who participated as passengers in staged automobile accidents designed to exploit New York’s no-fault automobile insurance regime]; see, e.g., Hempstead Pain & Med. Servs., P.C. v Progressive Cas. Ins. Co., 2003 NY Slip Op 51319[U] [Nassau Dist Ct 2003] [ordering EBT of medical provider]; Matter of National Grange Mut. Ins. Co. v Vitebskaya, 1 Misc 3d 774 [Sup Ct, Kings County 2003] [petitioner insurer’s request to stay arbitration was granted in view of showing that collision was staged]). The present case does not involve any allegations of fraud or lack of coverage.

As to Freiberg & Peck’s alleged penchant for needlessly taking successive EBTs, not every no-fault first-party benefits case will require a deposition of the actual health care professional. A deposition of the professional could be required where defenses of medical necessity or concurrent care were specifically and timely asserted in the NF-10. In all other cases, the EBT of a managerial or administrative employee of the plaintiff health care provider should be sufficient as to the contents of the health care file on the assignor, its authentication, and the dates of mailing and receipt of pertinent insurance forms. At any rate, this court, for present purposes, considering the issue of first impression of the appropriate contours of an EBT in an action for no-fault first-party benefits, does not need to establish rules for every permutation and nuance that may arise in other cases.

In this case, the court determines that Freiberg & Peck is entitled to depose Socrates, by taking the EBTs of both a managerial employee and the health care professional who actually rendered the services. Since the dates of the mailing and receipt of various important insurance forms, including the claim, the all-important denial of claim form (11 NYCRR 65-3.8), any timely demand for verification, the NF-3 or NF-5, or demand for additional verification (11 NYCRR 65-3.5), may be important at the trial of this action, an EBT of Socrates’s managerial [*11]person with such knowledge is appropriate and hereby ordered. The court also orders the deposition of the psychologist who allegedly rendered the services. Baker Barshay’s inclusion, in its present cross motion, of only the first page of the NF-10 was, as indicated, not forthcoming in candor, and this court thus draws the inference that the sole page’s reference to “see attached [sheets]” regarding the reasons for the claim’s denial, would permit ample justification for the psychologist’s EBT.

Defense counsel, in the present case, should not question the witness as to affirmative defenses raised in the answer that were not included in the NF-10, unless the case involves the currently recognized exemptions of fraud (e.g., staged accident) and lack of coverage. Questions that seek irrelevant facts, such as the number of rooms in the plaintiff health care facility, the plaintiff’s monthly rent, the number of persons in plaintiff’s employ, trivial information, or the reasons that propelled the health care professional to enter schooling in his/her field of expertise, will not be tolerated.

This court cautions members of the defense bar, in no-fault first-party benefits litigation, who move to compel an EBT, to preclude evidence, or to strike a complaint based on the plaintiff’s failure to appear for a noticed deposition, to append a complete copy of the denial of claim form, the NF-10, as an exhibit to the motion—except for a situation identified in the motion papers as involving the exemptions to the rule of waiver of fraud (e.g., staged accident) and lack of coverage. Absent a legitimate, compelling justification for not attaching it, the failure to include the NF-10 as an exhibit will constitute summary grounds for the motion’s denial (see, Metropolitan Radiological Imaging, P.C., 7 Misc 3d 675 [2005], supra). Even on motions to enforce a prior so-ordered stipulation, inclusion of the entire NF-10 is helpful to a court in determining the appropriate relief.

Finally, while appreciating Baker Barshay’s reluctance to proceed to EBTs in this case for the justifiable grounds set forth above, this court is not content with its failure to adhere to the terms of so-ordered stipulations. No citation to a case involving stipulations should be necessary to remind plaintiff’s counsel of the importance of meeting, at the very least, its written commitments and obligations, let alone those bearing the imprimatur of a court (if Baker Barshay needs such reminders, it should consult both Pueblo Med. Treatment, 6 Misc 3d 1033[A], 2005 NY Slip Op 50287[U] [2005], supra, and Hoss Med. Servs., 4 Misc 3d 521 [2004], supra). Plaintiff’s counsel need look only at the namesake of its own client, the Athenian philosopher of the fifth century B.C.E., Socrates, who both lived and died in a manner reflecting an unwavering commitment to truth and integrity. The corporate Socrates in the present case might not be condemned to drink a cup of poisonous hemlock, but it is, by this court’s order, forced to proceed to the deposition to which it had previously committed itself in two so-ordered stipulations.

In light of the evident antagonism between counsel, in this and other pending litigation, and their refusal to budge and seek accommodation, this court is constrained to detail the terms of engagement for discovery. This court directs and orders that, no later than April 20, 2005, with regard to the set of interrogatories served by Baker Barshay on October 17, 2002, Progressive is to serve complete answers upon Socrates to all of plaintiff’s interrogatories. Each answer is to be prefaced by a restatement of the interrogatory, and the set of Progressive’s answers must be served in verified form, so as to be usable by Socrates at an EBT or trial. If Progressive’s answers are not served timely, Socrates’s counsel shall settle an order, upon notice, for the [*12]undersigned’s signature, striking defendant’s answer with prejudice and entering judgment for plaintiff in the amount of $1,061.62, with statutory monthly interest and statutory attorneys fees, and the costs and disbursements of the action. Such a proposed order shall be submitted initially to the Clerk of Special Term, in room 357, for initial review before onward transmission to chambers.

This court agrees with Socrates’s contention that, pursuant to the plain terms of the so-ordered stipulation dated October 27, 2003, and filed with the Clerk of the Court on October 28, 2003, the holding of any EBTs was contingent upon Progressive’s production of discovery, which defendant failed to do. In this regard, and only because of its failure to provide court-ordered disclosure to Socrates in advance of EBTs, Progressive’s demand for sanctions is, in all respects, denied. Before a party invokes sanctions—and this court would unhesitatingly issue such relief in an appropriate case, and for a sum far greater than that demanded in the present motion—a party should be ready to show its “clean hands,” which was not done here. Should another sanctions motion become necessary in this case by either party, it shall be referred to the undersigned for determination. The court puts both counsel on notice that, henceforth, if improper conduct is committed, the sum awarded in sanctions may well include the attorneys’ fees and related costs of all the prior motions, including the preparation of papers and court appearances, and any amount assessed upon a law firm may not be passed on as a charge to its client.

Also, no later than April 20, 2005, and to the extent not previously provided (although the court believes, on the papers provided, that Socrates has done so), Baker Barshay shall mail to defense counsel the complete health care file maintained by Socrates on the assignor.

Provided that the aforementioned directions are followed, Progressive shall depose the plaintiff on May 11 and 12, 2005. First, on May 11, 2005, at 10:00 a.m., at a deposition facility in Queens County, Progressive shall depose a managerial person of Socrates, focusing principally on the dates of the issuance and receipt of the claim, the denial of claim, and the requests for verification and additional verification. Then on May 11, 2005, at 12:00 noon, and continuing on May 12, 2005, at 10:00 a.m., only if necessary, Progressive shall depose Dr. Mitchell Philip Flaum, Ph.D., as to the psychological services provided. Dr. Flaum’s deposition, aside from obtaining relevant pedigree and background information from the psychologist, shall be strictly limited to exploring the defenses asserted in Progressive’s denial of claim form, the NF-10.

On May 18, 2005, at 10:00 a.m., at a deposition facility in Queens County, Socrates shall depose an employee of Progressive with knowledge of the particular dates of mailing and receipt of the aforementioned claim, the denial of claim, and the requests for verification and additional verification. On May 18, at 12:00 noon, and continuing on May 19, at 10:00 a.m., only if necessary, Socrates shall also depose the claims examiner of Progressive who is in charge of the assignor’s file and possesses knowledge of the facts underlying all of the denials contained in the NF-10.

Only for good cause shown, the court may extend any of the above deadlines by the sending of a letter application to chambers, preferably with the consent of both counsel, requesting and marking a designated space for a so-ordered endorsement, provided that it contains dates certain for all of the aforementioned EBTs.

Should the parties require immediate rulings on the appropriateness of any question or [*13]direction not to answer, during any of the aforementioned EBTs, they, in the presence of the court reporter, and by speaker phone if available, shall call the chambers of the undersigned. Only in the event that the undersigned is unavailable for rulings, both counsel shall appear, with the court stenographer and copies of this decision and order, in room 357 of this court, at 3:00 p.m. of the date of the EBT, and request to be heard by the judge then presiding in Special Term, Part II. The court also cautions both law firms that if it determines and concludes that any party or its counsel is being disruptive, it will, after hearing arguments, strike that party’s pleading and also schedule a hearing to determine the amount of sanctions to be assessed against the law firm itself.

Following the conclusion of all depositions, Socrates shall serve and file a notice of trial. No further motions for summary judgment may be filed by either party in this action.

The defendant’s motion is thus granted only to the extent indicated above.

Footnotes

Footnote 1: The adjournment of eight months in Part 41 given by Judge Butler was the standard adjournment given to nearly all cases, barring exceptional circumstances, that appeared on the Part’s August 6, 2004 calendar. When the undersigned presided in the Part on March 3, 2005, the next standard adjournment was over nine months later, requiring counsel to return in mid-December 2005. The lengthy adjournments are given even on simple motions. They reflect the overflowing dockets of no-fault first-party benefits cases. The return dates are understandably intolerably long, and they would, in fact, be longer but for a rule of this court that bars a law firm from filing more than 10 motions in one day. The Clerk of Special Term and the Part Clerk strictly enforce that rule. Where a law firm in a no-fault first-party benefits case has filed more than 10 motions in one day, the excess gets “marked off” during the call of the calendar “as a violation of the Court’s Rules.” This entire situation may warrant the Legislature’s attention and the Office of Court Administration’s scrutiny on how to better control the massive dockets and yet reduce the lengthy adjournments given on even routine motions. For example, if the parties, on the original return date, get an automatic adjournment as of right of over nine months until the next court appearance—when the judge presiding in Part 41 may take a motion on submission, a litigant’s options are paralyzed for a length of time that defeats justice. These reflections about the current morass echo the observations articulated by other courts (see, Vladimir Zlatnick, M.D., P.C., 2 Misc 3d at 348, 354, supra [current, abusive litigation practices represent a “subversion of the legislative scheme” for speedy payment, disputation, and resolution]; Ostia Med. v Government Empls. Ins. Co., 1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003, Asarch, J.] [court “swamped” with no-fault litigation]; Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352, 352-353 [Civ Ct, Queens County 2003] [teeming dockets threaten “to engulf the state judiciary”]).

Footnote 2: One legal issue that has not been definitively resolved by the Court of Appeals is whether a fraud of a health care provider that is accused, not of excessive or unnecessary billing, but of submitting claims to an insurance carrier for services that were never rendered, should be likened to a staged accident and, therefore, exempt from the general rule of waiver, even though the defense of such a scheme’s existence was not timely and specifically asserted in the NF-10 (but see, Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d Dept 2004]).

[*1]

Civil Court of the City of New York, Kings County, March 10, 2005

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn, for plaintiff. Bruno, Gerbino & Soriano LLP, Melville, for defendant.

OPINION OF THE COURT

Arlene P. Bluth, J.

Plaintiff moves for summary judgment pursuant to CPLR 3212. For the following reasons, the plaintiff’s motion is denied. [*2]

In this action, plaintiff Vista Surgical Supplies, Inc. seeks to recover first-party no-fault benefits in the amount of $1,282, plus statutory fees, interest, costs, and attorneys’ fees, for medical supplies it allegedly furnished to plaintiff’s assignor, Julian Rosario, on February 5, 2003. Plaintiff argues that defendant failed to timely deny its no-fault claims.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986].) The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts. (See CPLR 3212 [b].) If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied. (See Rebecchi v Whitmore, 172 AD2d 600 [2d Dept 1991].)

In a no-fault context, a health care provider establishes prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that it is an assignee under a properly executed assignment, that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was mailed to and received by the defendant, and that payment of no-fault benefits is overdue. (See 11 NYCRR 65-3.11 [b] [2]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]; Triboro Chiropractic & Acupuncture P.L.L.C. v Electric Ins. Co., 2 Misc 3d 135[A], 2004 NY Slip Op 50215[U] [App Term, 2d & 11th Jud Dists 2004].) If the plaintiff makes out its prima facie case, the burden then shifts to the defendant.

In support of the motion, plaintiff submits the affirmation of its attorney and affidavit from an officer of plaintiff. It is axiomatic that a party’s attorney “who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment.” (Peters v City of New York, 5 Misc 3d 1020[A], 2004 NY Slip Op 51469, *8 [Sup Ct, Kings County 2004]; see also Zuckerman v City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply Inc. v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists 2004]; Lupinsky v Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002].)

The affidavit of Igor Kats, an officer of Vista Surgical Supplies, is also insufficient. Mr. Kats’ affidavit contains no recitations of fact particular to this case, such as the dates of service, the supplies allegedly provided, dates of mailing or amount outstanding. Rather, Mr. Kats’ affidavit contains boilerplate language^[FN*] about the authenticity of nonspecified bills and assignment from a nonspecified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date. Instead of setting forth the facts in admissible form, Mr. Kats merely adopts the statements of plaintiff’s counsel as contained in the attorney’s affirmation. By adopting the contents of an affirmation which has no probative value, the plaintiff’s affidavit—itself barren of material facts—is also of no probative value.

Moreover, in his affidavit, Mr. Kats declares that “[t]he above is the same testimony that I would present to this court at trial.” If it came to that, plaintiff would lose at trial for failure to set forth a prima facie case. At trial, Mr. Kats would not be able to say, “I adopt whatever my attorney said.”

Because plaintiff’s affidavit does not satisfy CPLR 3212 (b), plaintiff is not entitled to summary judgment. Accordingly, plaintiff’s motion is denied.

Footnotes

Footnote *: Indeed, Mr. Kats’ affidavit is identical to the one he submitted in at least two completely different cases (under Index Nos. 064662/04 and 056074/04), decided simultaneously herewith.

Civil Court of the City of New York, Kings County

062603/03

Arlene P. Bluth, J.

Upon the foregoing cited papers, defendant moves to vacate and set aside a judgment entered against it on August 12, 2004, to enforce an alleged settlement and discontinuance agreement, and for sanctions. Plaintiff cross-moves for sanctions and costs. For the following reasons, defendant’s motion and plaintiff’s cross-motion are denied. [*2]

The pertinent facts on this motion and cross-motion are as follows: On April 8, 2003, plaintiff Brooklyn Heights Medical, P.C. sued to recover first-party No-Fault benefits in the amount of $4,199.05 plus statutory interest, costs, and attorneys’ fees for healthcare services allegedly rendered to plaintiff’s assignor, Elene Barrow. On May 24, 2004, this Court, in an Order by the Hon. Sylvia Hinds-Radix after oral argument, awarded summary judgment to plaintiff in the amount of $4,199.05 “as set forth in the summons and complaint.” Thereafter, the parties negotiated a settlement of the case for $3,000, apparently to facilitate swifter payment to plaintiff than by execution of the judgment, albeit of a lesser sum. On June 9, 2004, plaintiff’s counsel faxed to defendant’s counsel a typed, unsigned stipulation of settlement and discontinuance. The first page stated: “Please sign for confirmation and fax back to our office ASAP.” The stipulation of discontinuance also provided that if full payment was not made within 30 days, the stipulation would become null and void.

Defendant’s counsel telephoned plaintiff’s counsel requesting that signed stipulations be forwarded. Plaintiff’s counsel informed him that the firm’s policy was to require that the opposing party sign the documents first. On July 8, 2004, plaintiff’s counsel faxed a letter to

defendant’s counsel stating that, although 30 days had passed with no payment on the settlement forthcoming, defendant’s counsel would be given an additional seven days to submit payment and return the signed documents. Otherwise, the letter warned, the settlement would be deemed null and void. Defendant’s counsel did not submit payment or sign the stipulation. Defendant’s counsel claims he faxed a letter to plaintiff’s counsel on July 19, 2004 demanding a signed stipulation; however, the fax report appended to defendant’s exhibit indicates a failed transmission.

Defendant’s attempt to escape the judgment against it by breathing life into an unconsummated settlement has no legal support. The CPLR is clear that “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” CPLR § 2104. Neither plaintiff nor plaintiff’s counsel ever “subscribed” i.e., signed the stipulation at issue. Therefore, plaintiff is not bound by the settlement.

Plaintiff was free to attach any conditions it wished to its settlement offer. Likewise, defendant was free to reject the offer based on objections to any of plaintiff’s terms. By failing to sign the stipulation and forward payment thereunder, defendant effectively rejected plaintiff’s offer, and allowed it to lapse on its terms.^[FN1] The case law cited by defendant is inapposite. Although detrimental reliance on an oral stipulation may preclude the application of CPLR [*3]

§ 2104, that exception does not apply on these facts. See La Marque v. North Shore Univ. Hosp., 120 AD2d 572, 573 [2nd Dept 1986].

Accordingly, defendant’s motion to vacate the judgment against it and enforce the settlement is denied. Because the Court does not find that either party acted in bad faith, defendant’s motion for sanctions and plaintiff’s cross-motion for sanctions and costs are both denied.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

Footnotes

Footnote 1: The Court notes that if defendant’s counsel would have in fact signed and returned the stipulation, it would have been binding on plaintiff even without signature by plaintiff or its counsel. See Stefaniw v. Cerrone, 130 AD2d 483 [2nd Dept 1987].

Civil Court of the City of New York, Kings County

035013/04

Arlene P. Bluth, J.

Upon the foregoing cited papers, plaintiff moves for summary judgment pursuant to CPLR § 3212, and defendant cross-moves to compel depositions of plaintiff, plaintiff’s assignor, and plaintiff’s treating physicians pursuant to CPLR § 3124 and 3126. For the following reasons, plaintiff’s motion is granted, and defendant’s motion [*2]is denied as moot.^[FN1]

In this action, plaintiff Vital Points Acupuncture, P.C. seeks to recover first-party No-Fault benefits in the amount of $2,299 plus statutory, interest, costs, and attorneys’ fees, for healthcare services it allegedly rendered to plaintiff’s assignor, Muller Pierre, from May 28, 2003 to August 6, 2003, following an alleged accident on May 16, 2003.

Plaintiff submitted six bills to defendant, all of which were denied. The first four bills, mailed on June 10, 2003; June 25, 2003; July 15, 2003; July 28, 2003; and August 12, 2003, were each denied on August 15, 2003 on the ground that “medical justification ha[d] not been established”since plaintiff’s assignor had failed to appear for two independent medical examinations (IMEs). The last two bills were denied on September 22, 2003, and included an additional ground for denial: a so-called “low impact study” commissioned by the insurer and conducted on August 26, 2003, which found that the extent of injuries alleged could not have been caused by the accident.

To establish a prima facie entitlement to summary judgment as a matter of law, a plaintiff healthcare provider must submit proof in admissible form demonstrating that it is an assignee under a properly executed assignment, that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was mailed to and received by the defendant, and that payment of no-fault benefits is overdue. See NYCRR 65-3.11(b)(2); Mary Immaculate Hosp. v. Allstate Ins. Co. 5 AD3d 742 [2d Dept 2004]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A) [App Term, 2d & 11th Jud Dists 2004]. Plaintiff in this case has done so, thereby shifting the burden to defendant. The alleged defects in plaintiff’s proof of claim and assignment of benefits raised by defendant are without merit because defendant has waived any objections to plaintiff’s proof of claim and assignment form by not requesting verification of either during the prescribed 30-day period. See Park Health Ctr. v. Eveready Ins. Co., 2001 NY Slip Op 40665(U) [App Term, 2d and 11th Jud Dists 2001]; Mt. Sinai Hosp. v. Triboro Coach, 263 AD2d 11 [2d Dept 1999].

Further, defendant’s denials based on Mr. Pierre’s failure to attend IMEs were ineffective because defendant did not comply with the regulations governing requests for additional verification. The regulations treat a request for an IME as a request for additional verification. See 11 NYCRR 65-3.5(c). Thus, the insurer was required to give Mr. Pierre a second opportunity to undergo the requested IMEs by following up with a second verification request within 10 calendar days of the first request. See 11 NYCRR 65-3.6(b).

Irrespective of the untimeliness of its denials, however, defendant has raised a defense of lack of coverage. An insurer may assert at any time that the accident arises from an insurance fraud scheme or that the alleged injury was not caused by an insured incident and is therefore not covered under plaintiff’s policy. Central Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195 [1997]; Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]; Amaze Med. Supply, Inc. v. AIU Ins. Co., 5 Misc 3d 139(A) [App Term, 9th & 10th Jud Dists 2004]; S & M Supply, Inc. v. Nationwide Mut. Ins. Co., 3 Misc 3d 138(A) [App Term, 2nd & 11th Jud Dists 2004]. A defense based upon lack of coverage must be “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” See Central Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997]; see also A.B. Medical Svcs. P.L.L.C. v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 143(A) [App Term, 2d and 11th Jud Dists 2004] .

Defendant bases its lack of coverage defense on the results of a so-called low-impact study which claims to show that the alleged accident could not have caused the injuries allegedly suffered by plaintiff’s assignor. In support of its allegation, defendant submits the sworn affidavit of Alfred Cipriani, an employee of FTI/SEA Consulting Applied Science, the company that conducted the study at defendant’s request. The low-impact study by itself, [*3]however, does not create a triable issue of fraud or lack of coverage. See A.M. Med., P.C. v. New York Cent. Mut. Ins. Co., 2 Misc 3d 918 [Civ Ct, Queens Cty 2004]. Mr. Cipriani’s affidavit does not explain in any detail and in non-technical language how the study was conducted and what the results mean. It does not specify the documents or physical evidence FTI/SEA relied upon, and does not establish any factual basis for the study’s conclusions or why such conclusions are reliable. Mr. Cipriani does not explain how the test was conducted, nor does the affidavit explain how the injuries of plaintiff’s assignor are incompatible with the study results.

Likewise, the affidavit of Justin Barth, a no-fault specialist for the insurer, does not indicate why the insurer believed that the alleged injury did not arise out of an insured incident and decided to commission a low-impact study in this case. Further, it fails to specify whether the alleged fraudulent conduct was a staged accident or the provider’s unilateral scheme to obtain no-fault benefits for unnecessary or excessive medical treatment, the latter being precluded by defendant’s untimely denials. See Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92, [App Term, 2nd Dept 2004].

Therefore, defendant has failed in its opposition papers to allege facts with the requisite particularity to create triable issues of fraud or lack of coverage. See A.B. Medical Services PLLC v. State Farm Mutual Auto Ins. Co., 3 Misc 3d 130(A) [App Term, 2d & 11th Jud Dists 2004]; Amstel Chiropractic P.C. JYQ Acupuncture P.C. v. Omni Indemnity Co., 2 Misc 3d 129 [2d and 11th Jud Dists 2004] (finding that unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of the assignor’s fraud); cf. Ocean Diagnostic Imaging P.C. v. State Farm Mut. Ins. Co., 2004 NY Slip Op 24498 [2d and 11th Jud Dists 2004] (investigator’s affidavit set forth ample facts and founded beliefs to establish the existence of a triable issue of fact as to whether there was a lack of coverage).

Accordingly, plaintiff is awarded summary judgment in the amount of $2,299 plus statutory interest, costs, and attorneys’ fees.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

Footnotes

Footnote 1:This decision is issued in conjunction with this Court’s decision in a companion case, Vital Points Acupuncture, P.C. a/a/o Claudette Pierre v. New York Central Mutual Fire Insurance Company, Index Number 35007/04.

[*1]

Civil Court of the City of New York, Kings County, February 28, 2005

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, LLP (Scott H. Fisher of counsel), for plaintiff. Robert P. Tusa (Josephine M. Celano of counsel), for defendant.

OPINION OF THE COURT

Milagros A. Matos, J.

Facts

Plaintiff medical provider Dr. Jacob Nir, assignee of Josapphat Etienne, instituted this action to recover first-party no-fault benefits from defendant insurer Allstate. Dr. Nir, a neurologist, was denied payment by the insurer for diagnostic testing he performed on the patient/insured Josapphat Etienne. The patient was injured in an automobile accident on January 15, 2004. On February 6, 2004, Dr. Nir examined the patient and conducted electromyography and nerve conduction velocity (EMG/NCV) tests that revealed nerve injury in the patient’s lower back.

At the time the services were rendered, the patient Josapphat Etienne was insured under a no-fault insurance policy issued by defendant Allstate. The no-fault benefits were properly assigned to Dr. Nir, who submitted claim forms to Allstate in the amount of $2,227.71 on February 24, 2004. On April 7, 2004, Allstate made a partial payment to Dr. Nir in the amount of $211.85, leaving a balance of $2,015.86. Defendant denied the remaining claims based upon a peer review report stating that the tests were not medically necessary. Before trial the parties stipulated that the only issue for determination by the court was whether the diagnostic testing was medically necessary as defined by Insurance Law § 5102 (a) (1), and thus whether or not defendant properly denied payment of the claim. The court conducted a full trial of this matter on February 7, 2005.

At trial, both sides presented the testimony of a physician. For defendant, the doctor that had authored the peer review report testified that the diagnostic tests were not medically necessary based on his review of Dr. Nir’s medical reports. The peer review doctor did not examine the patient himself. Even though the diagnostic testing resulted in positive findings of neurological damage to the patient’s lower back, the peer review doctor found that the tests, performed three weeks after the accident, were “medically unnecessary.” Specifically, the peer review doctor testified that not enough time had elapsed from the time of the accident to the time [*2]of the testing, and therefore the testing was premature.

Plaintiff’s expert witness testified that the EMG/NCV testing was medically necessary based on his review of Dr. Nir’s medical report and accredited medical publications. He testified that the patient’s symptoms suggested that there was injury to the nerve. The patient presented complaints of persistent “radiating” pain in the cervical and lower back as well as numbness and tingling. The expert witness concluded that the tests were medically necessary to diagnose radiculopathy, or nerve damage. Finally, plaintiff’s witness testified that the timing of the testing was consistent with the generally accepted medical practices set forth by the American Association of Electrodiagnostic Medicine (AAEM) for both EMG and NCV testing.

Discussion

Although there have been no appellate court rulings on the issue, trial courts have consistently held that the insurer bears both the burden of production and the burden of persuasion with respect to medical necessity of the treatment or testing for which payment is sought. (King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004] [“(i)t is by now firmly established that the burden is on the insurer to prove that the medical services or supplies in question were medically unnecessary”]; Behavioral Diagnostics v Allstate Ins. Co., 3 Misc 3d 246 [Civ Ct, Kings County 2004]; A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003]; see also Karen B. Rothenberg and Jennifer R. Rapaport, No-Fault: The Litigation Epidemic, NYLJ, Jan. 5, 2004, at 4, col 4.) Therefore, once plaintiff has established its prima facie case, defendant must prove that the treating doctor’s services were not medically necessary. As an element of its proof defendant may use a peer review report, which is a medical professional’s written evaluation of the medical necessity of the services provided. In the summary judgment context, defendant may raise triable issues of fact for lack of medical necessity with a peer review report that “set[s] forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection.” (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; S & M Supply v Kemper Auto & Home Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50209[U] [App Term, 2d & 11th Jud Dists 2004].) In other words, “to withstand a motion for summary judgment, a peer review report must set forth a factual basis sufficient to establish, prima facie, the absence of medical necessity.” (Choicenet Chiropractic P.C. v Allstate Ins. Co., 2003 NY Slip Op 50672[U], *1 [App Term, 2d & 11th Jud Dists 2003].)

In the trial context, few decisions elucidate on defendant’s burden of proof, or what evidence may be sufficient to establish that the services were medically unnecessary. At a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services. (See CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608 [Civ Ct, Kings County 2004]; Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [Civ Ct 2004] [at trial, the defense that the claim was not medically necessary “must be supported by sufficient factual evidence or proof and cannot simply be conclusory”].) Therefore, if defendant [*3]provides an insufficient factual basis or medical rationale for its peer review report at trial, the court will afford the peer review report minimal weight, and defendant may fail to sustain its burden of proof.

A peer review report’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards. For example, the medical rationale may be insufficient if not supported by evidence of the “generally accepted medical/professional practice.” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608, 612 [Civ Ct, Kings County 2004].) “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d at 616, supra.) Alternatively, if the plaintiff offers evidence that its medical services were consistent with generally accepted medical practice, the defendant’s peer review report will be afforded less weight and defendant may fail to sustain its burden of proof at trial. (See Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U], *12 [Civ Ct 2003] [defendant peer review doctor’s conclusion that the electrodiagnostic testing was not “properly documented” did not contradict plaintiff’s testimony of medical necessity and defendant failed to carry its burden].)

A peer review report’s factual basis may be insufficient if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim. (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004].) For example, a defendant may not establish lack of medical necessity if the only reason for the denial was that the peer review doctor did not have enough information in the claim file upon which a determination could be made. (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 2d Dept 2004].) One court held that a peer review report may be insufficient if the peer review doctor merely reviewed records, rather than examining the insured patient, in preparing the peer review report. (Alliance Med. Off. v Allstate Ins. Co., 196 Misc 2d 268 [Civ Ct, Kings County 2003]; see also Fifth Ave. Pain Control Ctr. v Allstate Ins. Co., 196 Misc 2d 801 [Civ Ct, Queens County 2003].)

In this case, defendant’s doctor recommended denial of plaintiff’s claim because, in his opinion, the diagnostic testing performed by plaintiff Dr. Nir was done prematurely. During testimony the peer review doctor cited only a review of Dr. Nir’s medical reports as the basis for his peer review report. He did not physically examine the patient before writing the peer review report. He cited no medical authority, standard, or generally accepted medical practice as a medical rationale for his findings. Finally, defendant was not able to explain how the tests could be medically unnecessary when the tests did in fact yield positive findings of nerve damage. Such scant factual basis and medical rationale will not sustain defendant’s burden of proof.

Furthermore, defendant’s case was competently rebutted by plaintiff’s expert witness. Defendant could not establish its conclusory medical rationale, that the testing was done [*4]prematurely, in the face of plaintiff’s evidence of the generally accepted medical practice. Plaintiff’s witness testified that the AAEM recommends EMG/NCV testing either “acutely” after or “several weeks” after an accident occurs. On cross-examination, defendant’s peer review doctor agreed that the AAEM is authoritative in the field of electrodiagnostic medicine. The generally accepted medical practice cited by the AAEM was consistent with Dr. Nir’s practice in this case.

Conclusion

Based on the evidence, the court concludes that the testimony and peer review report of defendant’s peer review doctor were insufficient to sustain defendant’s burden of proof on the only issue before this court, lack of medical necessity. Judgment should be entered for the plaintiff in the amount of $2,015.86, plus interest from February 24, 2004 and attorneys’ fees as provided by the insurance regulations, together with the statutory costs and disbursements of this action.

Civil Court of the City of New York, Queens County

102975/2002

The Plaintiff: Baker, Barshay & Neuwirth, LLP, by Robert Baker, Esq., 1393 Veterans Memorial Highway, Suite 210N, Hauppauge, NY 11788

For the Defendant: Freiberg & Peck, LLP, by Adam C. Weitz, Esq., 12 East 41st Street, New York, New York 10017

Charles J. Markey, J.

The instant decision, in this action for no-fault first party benefits, addresses the question of the extent of efforts required of a movant before it can secure preclusion or dismissal against the party who failed to honor a so-ordered stipulation. In the present case, plaintiff does not dispute the fact of noncompliance. Yet, plaintiff’s counsel insists that defendant must show that it placed a statement on the record at the deposition session before a court can invoke preclusion.

The defendant moves for preclusion for plaintiff’s failure to comply with a so-ordered stipulation [Siegal, J.], requiring a deposition of the plaintiff on or before February 18, 2004, at a named court-reporting facility, Diamond Reporting, in Jamaica, New York. The defendant attempted to secure compliance by telephoning opposing counsel, on February 17, 2004, to confirm that the deposition would go forward on the next day. Plaintiff’s counsel said that it would not produce a witness.

Defendant did not go to the reporting service named in Judge Bernice Siegal’s order. Instead, it subsequently moved for preclusion of all evidence, the sanction specifically recited in the so-ordered stipulation.

Plaintiff contends that defendant should not be able to secure preclusion without having made a specific statement on the record of an attempted examination before trial (“EBT”) of the failure of plaintiff’s counsel or its client to show up. Plaintiff’s counsel, in papers opposing the motion, argues, in pertinent part:

The defendant’s ability to subsequently preclude the plaintiff from offering evidence should not be a default right. The defendant should be required to offer and prove its attempt at conducting the EBT via a default statement on the record indicating they “showed up.” For the defendant to be able to enter a stipulation naming preclusion as the penalty for plaintiff’s failure to appear and allowing [*2]defendant to successfully preclude plaintiff’s evidence without showing up and taking a default statement at their own EBT would be like “arming” defense counsel with a means with which to circumvent equitable discovery practices. [Affirmation of Robert J. Baker, Esq., page 2].

Plaintiff’s arguments bear no merit for several reasons. First, the reason why some attorneys decide to place the failure of an opposing party to appear at an EBT is to preserve or make a record, especially when the absence of the other party could not have been predicted or the date or circumstances surrounding the deposition are in dispute. The need in those cases to arrange for a court reporter and make a record of the absence of an opposing party is often indispensable as a groundwork for future motion practice.

In the case at bar, in contrast, defense counsel exercised the courtesy of calling opposing counsel the day before the deposition and was advised that neither plaintiff nor its attorneys would appear. In other words, there was no need for a court reporter because plaintiff’s counsel made an advance repudiation of its stipulated undertaking to be present at a deposition to be held on or before February 18, 2004. In the present case, sound lawyering would have required defense counsel to fax a letter to plaintiff’s counsel on February 17, 2004, confirming the conversation of plaintiff’s refusal to attend the Feb. 18 EBT. Nevertheless, such a letter is not necessary for the disposition of the instant motion because plaintiff does not dispute that it did not attend the EBT, but merely implores for another opportunity to attend such a deposition.

Second, to adopt plaintiff’s specious argument would thrust upon a litigant the expense and burden of hiring and paying court-reporting agencies and reserving rooms, even though counsel is advised ahead of time that an opposing party will not attend. Defense counsel would, in effect, be like the proverbial dog chasing its own tail. In other words, where a stipulation is plain on its face, advising a party of the consequences of the failure to appear, and a party notifies its adversary that it will not attend the court-ordered discovery session or deposition, there is no need to force upon a lawyer the expense and effort of making arrangements for a deposition that will never take place.

Third, plaintiff’s counsel’s argument is also a way to extract yet “another bite at the apple,” namely, yet another chance to attend the deposition. Judges Edgar Walker and Bernice Siegal, in their joint decision in Hoss Medical Services v. Government Employees Insurance Co. (4 Misc 3d 521 [NYC Civ Ct Queens County June 17, 2004]), made clear that parties in no fault first party benefits cases will be held accountable for the language they employed in a stipulation and that their failure to comply with a discovery request posed in a court-ordered stipulation will not be tolerated. In Hoss, a case involving the same plaintiff’s law firm, the court stated:

It has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except in certain limited circumstances not even alleged to be present in these cases [citations omitted].

* * * * *

. . . [T]he court is not free to reform the stipulations to conform to what it thinks is proper or to impose a sanction other than that agreed to.

Id. at 523.

It would serve no purpose after a plaintiff’s counsel failed to abide by a court-ordered stipulation to require defense counsel to secure a second stipulation for enforcement of the prior agreement or to make futile arrangements before enjoying the benefit of the penalty that was clearly prescribed in the first stipulation. Any other result would render a mockery of proceedings and of judicial orders and would send a mischievous message that apparent finality actually does not mean final.

In the present case, this Court holds that defense counsel was not required to undergo the expense and trouble of arranging for a deposition before it moves for preclusion or dismissal. Accordingly, the defendant’s motion is, in all respects, granted. The undersigned will enforce the terms of the instant stipulation, and, accordingly, full preclusion is accorded against the plaintiff, and the complaint is dismissed.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Judge, Civil Court, Queens County

Dated: Jamaica, New York

February 18, 2005

Appearances:

[*1]

Civil Court of the City of New York, Queens County, February 17, 2005

APPEARANCES OF COUNSEL

Rossillo & Licata, P.C., Garden City (Tara K. DeMaio of counsel), and Devitt Spellman Barrett, LLP, Smithtown (William J. Barrett of counsel), for State Farm Mutual Automobile Insurance Co. and another, defendants. Carman, Callahan & Ingham, LLP, Farmingdale (Demetrios A. Bothios of counsel), for General Assurance Insurance Co., defendant.[*2]Freiberg & Peck, LLP, New York (Erika Tobias of counsel), for Progressive Northeastern Insurance Co., defendant.

OPINION OF THE COURT

Charles J. Markey, J.

The instant controversy raises issues of immense importance governing the permissible [*3]scope of discovery in litigation for no-fault first-party benefits. To illustrate the significance of the legal issues posed, this court has consolidated six motions only for purposes of this decision.

The six cases have several common denominators. An insurer has served multiple discovery notices on a plaintiff assignee medical provider of no-fault first-party benefit services. In each of the six motions, an insurer seeks to strike plaintiff’s complaint or to preclude plaintiff from testifying at trial for failing to respond to the discovery notices or to compel answers to the various demands. In the six motions, although the movant insurers attached copies of the pleadings, they failed to attach copies of the NF-10, the all-important denial of claim form (11 NYCRR 65-3.8), or a timely demand for verification, the NF-3 or NF-5, or demand for additional verification (11 NYCRR 65-3.5). In none of the motions was there a discussion by the movant insurers of the relevancy of the information sought, especially in terms of a timely denial or a timely demand for verification. In each of the motions, however, the plaintiff’s counsel not only failed to cross-move for a protective order, but also did not oppose the motion or even appear in court on the return date.

The legal issues of first impression raised by the six consolidated motions require resolution of the permissible scope of discovery in no-fault litigation, definition of a barometer or yardstick by which to measure whether a discovery request in a no-fault action is legitimate or simply vexatious and oppressive, and, finally, a determination of the degree of judicial tolerance to be afforded to a palpably improper discovery demand despite a plaintiff’s inaction. These issues are of weighty magnitude because of the thousands of no-fault cases that arise each year throughout this state and the discovery disputes that arise therefrom.

In these six actions for no-fault benefits, a health care provider who rendered medical or chiropractic treatment to the plaintiff’s patient, in exchange for an assignment of the patient’s right to collect no-fault benefits, seeks recovery from a defendant insurer. The No-Fault Law replaced the common-law right to seek tort recovery with a statutory system designed to provide “a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of [automobile] accidents” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]).

Prior to discussing the specifics of each of the motions, a review of the rubrics in No-Fault Law is essential in arriving at judicial holdings in this controversy. First, an insurer must make a timely denial of benefits within 30 days of receipt of a claim in a denial of claim form, the NF-10, or must have timely demanded a verification. Failure to do so will result in a defendant insurer waiving all defenses—except for those of lack of coverage and fraud—to a claim and thus exposing itself to a successful plaintiff’s summary judgment motion (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d Dept 2004]; Diagnostic Rehab. Medicine Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 685 [App Term, 2d Dept 2004]; King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767 [Civ Ct, Kings County 2004]).

No better case illustrates the importance of mailing a timely denial or timely demand for a verification than the Court of Appeals decision in Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997] [4-3 decision]). In that case, although it was later established that the plaintiff’s assignor was legally drunk at the time of the motor vehicle accident, the High Court sustained a medical provider’s entitlement to summary judgment. [*4]The insurer’s failure to issue a timely denial or a timely demand for verification was deemed a waiver of all defenses and did not even entitle the insurer to responses to a demand for written interrogatories. During the requisite period for issuing a denial or demand for a verification, “the carrier chose to sit on its rights and do nothing in this respect” (id. at 280).

The Court of Appeals in Presbyterian Hosp. stated that “a core and essential objective” of the insurance regulations is “to provide a tightly timed process of claim, disputation and payment” (id. at 281). The Court of Appeals, in pertinent part, stated:

“No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits . . . The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices.” (Id. at 285.)

Although the insurer actually later procured proof that the assignor was legally drunk while operating a motor vehicle—certainly conduct that offends our State’s public policy and criminal law—the Court of Appeals refused to permit the assertion of a late defense of intoxication and even to allow discovery on the issue. Since the insurer failed to adhere to the “tightly timed process” (id. at 281), the Court of Appeals expressly did not let the defendant insurer “string out belated and extra bites at the apple” (id. at 286).

The importance of a timely denial is underscored by the Appellate Division’s recent decision forbidding an insurer from relying on a prior blanket denial that simply stated that it would dishonor further claims. In A & S Med. P.C. v Allstate Ins. Co. (15 AD3d 170 [1st Dept 2005]), an insurer’s failure to deny a specific claim in timely fashion, despite a previously issued blanket denial that advised that all future claims would be rejected, warranted the grant of a medical provider’s motion for summary judgment.

An insurer’s denial must be made “with a high degree of specificity of the ground or grounds on which the disclaimer is predicated,” and an insurer will not be permitted to assert a defense not specifically made in the NF-10, even though a denial of claim may have been previously issued in a timely manner (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979] [per curiam]; accord Paul M. Maintenance, Inc. v Transcontinental Ins. Co., 300 AD2d 209, 212 [1st Dept 2002]; see also, Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352, 354-355 [Civ Ct, Queens County 2003] [citing cases]). Thus, if an insurer’s NF-10 denied a claim only on grounds of intoxication, it cannot later be permitted to assert another defense, such as the invalidity of an assignment, which was not preserved in the denial of claim form (see, e.g., Bonetti v Integon Natl. Ins. Co., 269 AD2d 413 [2d Dept 2000] [defense of allegedly unnecessary surgeries not preserved]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996] [defense of invalid assignment not preserved]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [2d Dept 1994] [insurer’s failure to deny claim in 30 days]).

In accord with the Presbyterian Hosp. holding preventing an insurer from stringing out the process by prejudicial, dilatory practices and taking extra bites at the apple (90 NY2d at 285-[*5]286), the bottom line is that a defendant insurer “must ‘stand or fall upon the defense upon which it based its refusal to pay’ ” (King v State Farm Mut. Auto. Ins. Co., 218 AD2d 863, 865 [3d Dept 1995], quoting Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, 194 [3d Dept 1957], appeal dismissed 2 NY2d 990 [1957]). The Appellate Division, Second Department, has repeatedly warned insurers against either repudiating liability or defending on one particular ground and then, shifting gears, creating new means or defenses to avoid payment (see, Lee v American Tr. Ins. Co., 304 AD2d 713, 714 [2003]; Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219, 220-221 [1999]; accord Subia v Cosmopolitan Mut. Ins. Co., 80 Misc 2d 1090, 1092 [Sup Ct, Queens County 1975] [striking defense from answer that was not raised in the denial of claim form]).

Comprehension of the foregoing principles is essential for illuminating the way on what matter is discoverable in a litigation for no-fault first-party benefits. The Legislature created the No-Fault Law in derogation of the common law (Walton, 88 NY2d at 214), and Insurance Department regulations and case law make extra demands on the methods of denial, verification, payment, and disputation. If the foregoing holdings are ignored, then no-fault litigation would be treated like any other garden variety common-law litigation with a full panoply of discovery rights, turning no-fault litigation to its present condition—a Frankenstein monster that has assumed a life force of its own, becoming so unmanageable and uncontrollable that it acts out in ways never envisioned by its creator.

In none of the six motions did the movant attach a copy of a denial of claim, the NF-10, or a timely demand for verification. Interestingly, each insurer’s counsel appended the pleadings, including its answer so as to demonstrate, seemingly and superficially, that the demanded discovery of information and documents must surely come within some affirmative defenses contained therein. The discussion above, however, highlights that what is essential is not some invocation of a defense or the inclusion of an answer containing numerous affirmative defenses, but proof that a particularized defense was stated in a denial of claim with a high degree of specificity and was done so timely.

In an unreported short form order, Judge Kevin J. Kerrigan, in Lopes v Liberty Mut. Ins. Co. (Civ Ct, Queens County, Dec. 18, 2003, Index No. 67693/00), required parties to a discovery dispute in a no-fault first-party benefits litigation to include copies of all the pleadings and the denial of claim form. Although copies of the pleadings are desirable, especially if the remedy sought is to strike a pleading, Judge Kerrigan’s insistence for the NF-10 is irrefutable, if the Court of Appeals’ and Appellate Division’s holdings about the centrality of the denial of claim are to retain any vitality. Review of the NF-10 is indispensable; it is the appropriate yardstick for measuring the legitimacy of the demanded discovery.

This court is also persuaded by another unreported decision. In St. Luke’s Roosevelt Hosp. v American Tr. Ins. Co. (Sup Ct, Nassau County, Dec. 20, 2002, Index No. 8119/02), Justice Ute Wolff Lally, in granting plaintiff’s motion for summary judgment, precluded consideration of two affirmative defenses contained in an insurer’s answer and other objections raised by its counsel that were not specifically contained in the denial of claim or a timely demand for verification (accord Subia, 80 Misc 2d at 1092, supra). This court agrees with both Justice Lally and Judge Kerrigan.

Thus, as an initial matter, this court holds that failure by an insurer to include a copy of [*6]its denial or demand for verification in a discovery motion, whether seeking to strike pleadings, preclude evidence, or compel discovery, or to furnish a justifiable, compelling reason for not including it, will be per se grounds for denial of the motion.

Next, despite the failure by the movants to include proof of either the NF-10 or a timely demand for verification, the court will examine the nature of the discovery demanded by the insurer in each of the six motions.

1. Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co.

Plaintiff seeks the sum of $1,758.40 for radiological services. Defendant’s answer includes no less than 39 “separate and distinct” affirmative defenses to the entire action. Since the movant insurer failed to include a denial of claim form as an exhibit to its motion papers, it is impossible to determine whether all 39 defenses were previously stated, “with a high degree of specificity” (General Acc. Ins. Group v Cirucci, 46 NY2d at 864) in the NF-10 and in timely fashion. At any rate, the asserted 39 affirmative defenses run the gamut, ranging from an alleged invalid assignment to accord and satisfaction.

In the demand for written interrogatories, the defendant insurer, by its counsel, Rossillo & Licata, requires the plaintiff to “[s]tate the number of separate rooms maintained by the Plaintiff to render treatment as of the date of the treatment.” Even though an NF-10 was not provided, this court reviewed each of the 39 “separate and distinct” affirmative defenses contained in the answer and still cannot fathom, using a test of “usefulness and reason,” how this interrogatory can possibly lead to “needful” or “material and necessary” information (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-408 [1968]; accord Boone v Bender, 11 AD3d 496 [2d Dept 2004]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 238-239 [2d Dept 1984]; Siegel, NY Prac § 344 [3d ed 1999]). Knowing the number of rooms in the plaintiff health care facility is as helpful or “needful” as learning the shoe size of the medical provider’s principal or his/her spouse’s middle name or the make and model of the car that he/she drives. Unless defense counsel is hell-bent in reporting a local administrative fire code violation for excessive occupancy of persons, a request demanding the number of rooms in the plaintiff’s facility is patently abusive.

Defense counsel goes further. It requests that plaintiff supply any verifications that may have been sent to it by the defendant. This request is burdensome because the duty to make the demand for a verification is on the insurer, not the provider. Absent compelling reasons, such as a demonstrated destruction of records, an insurer should not make such a request of a plaintiff provider. Although the offending question was part of a set of interrogatories, a holding by the Appellate Division, Second Department, in condemning a demand for a bill of particulars, noted that defendant should not seek from plaintiff items on which the defendant has the burden of proof (Somma v Sears, Roebuck & Co., 52 AD2d 784, 785 [1976]). Since an insurer generates denial of claim forms (NF-10) and demands for verification (NF-3 and NF-5), and presumably maintains such records in the course of its business, it should not be requesting a plaintiff health care provider to provide those documents.

In another offending question, with 10 subparts, inquiring as to the number of plaintiff health care facility’s employees, the insurer demands to know the number of appointments made [*7]by the assignor, rather than the number of visits actually kept. This court cannot detect the relevancy of the request without knowing the precise defense and whether it was specifically and timely asserted in the NF-10.

In a notice for discovery and inspection, the insurer demands “the names of all individuals present when the subject treatment took place” and the name of any interpreter who may have been present. Overlooking the issue of relevancy—or, more to the point, the irrelevancy—of these demands, they do not belong in a notice for discovery and inspection, but rather in a demand for interrogatories. As will be seen in numerous instances, discussed below, it appears that counsel for defendants either do not have a clue as to the specific use of each of the various discovery notices included in article 31 of the CPLR or are deliberately reinventing them in haphazard fashion. They would be well-advised to study the particular purposes of each of the discovery notices (see, Durst-Fuchsberg-Kleiner, Modern New York Discovery [Lawyers Co-operative Publ. Co. 1983]).

Finally, the insurer served a demand for an examination before trial (EBT) together with a demand for written interrogatories. In Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]), the court banned the simultaneous use of a demand for written interrogatories and a demand for an examination before trial. Counsel should first proceed by use of either interrogatories or an EBT and resort only to the other discovery devices to fill in gaps, not to burden by requiring duplication of effort (id.; accord Ostia Med., P.C. v Government Empls. Ins. Co., 1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003, Asarch, J.]; see also, Di Lorenzo v Ellison, 114 AD2d 926 [2d Dept 1985] [did not require plaintiff to respond to many items contained in a discovery demand until the completion of EBTs and then only to complete the gaps in disclosure]).

In the present case, the court will deem the simultaneous use of the EBT notice and the demand for written interrogatories to be burdensome per se. For a Zlatnick violation, this court will not only not grant a motion to compel, but will strike the discovery demands.

2. A&J Ultimate Chiropractic, P.C. v General Assur. Co.

In this action, a chiropractic facility seeks the sum of $202.20. The insurer’s answer contains 15 affirmative defenses. Defense counsel has resorted to the simultaneous service of a demand of written interrogatories and an EBT notice, ignoring the holding in Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co. (2 Misc 3d 347 [2003], supra).

In its demand for discovery and inspection, the insurer requests copies of all denials from the health care provider. As stated above with regard to demands for verification, the duty of keeping and maintaining copies of the NF-10 is on the insurer, since it generated the denial of claim. These types of demands are harassing, burdensome, and palpably improper, absent a compelling justification.

The insurer’s demand for written interrogatories inquires how the rate of interest of 2% per month and attorneys’ fees were calculated, although these are legal remedies set forth by statute, regulations, and case law, and the amount of interest and attorneys’ fees are calculated only by the Clerk of the Court after a judgment is rendered.

3. and 4. Preferred Med. Imaging, P.C. v Progressive Northeastern Ins. Co. and Acupuncture Works, P.C. v Progressive Northeastern Ins. Co.

These are two separate actions involving the same plaintiff’s counsel, defense counsel, and defendant. In the action initiated by Preferred Med. Imaging, P.C., the facility seeks the recovery of $1,791.73. In the action commenced by Acupuncture Works, P.C., the health care provider seeks $575.

The magnitude of defendant’s abusive requests is remarkable. Here, too, no NF-10 is included to help the court. Rather, an answer was asserted in each of these two actions containing the same 17 affirmative defenses, identical word-for-word. Computers and word processors were designed to make life more comfortable and efficient; they were not meant for lawyers to suspend their use of reason and judgment by mindlessly tapping the same buttons in every case. The use of generic forms or boiler plate, engaged by defense counsel here, was soundly criticized in King’s Med. Supply Inc. v Country-Wide Ins. Co. (5 Misc 3d at 771, supra).

The function of a demand for a bill of particulars is to amplify pleadings, limit proof, and prevent surprise at trial. It may not be used to call for evidentiary material (Havens v Tucker, 136 AD2d 814, 815 [3d Dept 1988]; Di Lorenzo, 114 AD2d at 926, supra; Somma, 52 AD2d at 784, supra). In both the Preferred and Acupuncture actions, defense counsel, Freiberg & Peck, in its demand for a bill, asserted the identically worded 20 questions calling for detailed evidentiary information, not amplification of a pleading. Again, the conclusion is inescapable that the draftsman of the demand has no understanding of the discovery device of a bill of particulars or consciously chose to defy conventional, well-settled legal usage and reinvent its purpose. Defense counsel, for example, requires a list of all “medical journals, reports, textbooks” relied upon by the medical provider in arriving at a diagnosis! There is no excuse for such a question, especially in the context of a demand for a bill of particulars.

The demands for a bill in the two cases go further. They demand the particulars of any possible revocation of the assignment, details of any treatment plan, details of possible, contemplated treatment plans, and the reasons why the unspecified, alternative treatment plans were not utilized. If deemed relevant, these questions can be explored either in interrogatories or at an EBT (but not at the same time under Zlatnick) if the issue of medical necessity were specifically and timely raised in the NF-10. The demand for a bill also requests whether the assignor was ever treated or examined by any doctor “associated with Assignee” prior to the accident, without defining “association.” Of course, to get this information, a health care facility assignee would have to ask its patient assignor for a complete list of every possible doctor he/she may have seen during his/her lifetime only for the assignee to know whether there was some sort of “association” with it. Again, such a blunderbuss, vague, oppressive demand is made without attaching a copy of the NF-10 to the motion.

5. and 6. Rapid Scan Radiology P.C. v State Farm Mut. Auto. Ins. Co. and GJW Chiropractic, P.C. v State Farm Ins. Co.

In its action, plaintiff Rapid Scan Radiology P.C. seeks $1,791.73. In the action commenced by the chiropractic facility, plaintiff seeks $505.50. Both cases are defended by the [*8]same law firm. In Rapid Scan, the answer sets forth 13 affirmative defenses, whereas in the action by the chiropractic provider, GJW, 14 affirmative defenses are included. Defense counsel exercised, at least, some selectivity, though not much, in approaching the two cases. In neither motion was a copy of a timely denial of claim or a timely demand for verification appended.

In both cases, an identically worded, improper demand for a bill of particulars was propounded. The nature of the evidentiary detail sought by the demands is sweeping. For instance, in inquiring about expenses, both questions one and two of both demands for a bill of particulars each contain subparts (a) through (v). Question three about lost earnings contains subparts (a) through (z) in both demands. Question four, also on the issue of expenses, of both demands contains subparts (a) through (v). The Appellate Division, Second Department, in Nazario v Fromchuck (90 AD2d 483 [1982]), reversing a lower court, granted a motion for a protective order where defendant served a demand for a bill of particulars consisting of 18 paragraphs and more than 60 separate requests, much of it calling for evidentiary material. Here, in action Nos. 5 and 6, the two demands for a bill each contain the identical 92 questions, all calling for detailed evidentiary information.

Defense counsel, Devitt Spellman Barrett, LLP, also served, in both actions, an identically worded “Combined Demands,” listing 12 questions. Question six demands that a plaintiff assignee specify the name, address, and telephone number of any other provider—including pharmacists and ambulance services—visited by the patient assignor as a result of the accident. An answer might be proper and required, but only to the extent that the assignee knows the information, without requiring it to chase its assignor to obtain it.

Other questions of the combined demands reach new depths of irrelevancy. Question seven demands the name, address, and telephone number of any health care provider, dentist, pharmacist, therapist, psychologist, or even ambulance service which provided any help to the patient assignor for a 10-year period prior to the accident. Question eight inquires as to the employment of the patient assignor at the time of the accident and requires particularized information about the reason for termination or resignation. Undeterred, defense counsel goes further. Question nine requires the specifics of every position of employment held by the patient assignor for the 10-year period preceding the accident, including the reasons for leaving the job.

It is axiomatic that discovery should be limited to information which bears upon matters in controversy or is reasonably calculated to reveal information regarding the issues (see, Allen, 21 NY2d 403 [1968], supra). The court finds that, in action Nos. 5 and 6, questions regarding the employment history of a patient assignor for the past 10 years and information of every “physician, dentist, hospital, ambulance service, pharmacist, chiropractor, psychologist, therapist and other provider of medical care, any medical treatment or any medical service [seen or used by the patient assignor] . . . during the 10 years which immediately preceded the occurrence” are patently abusive. Defendants, in those two actions, failed to attach a copy of the denial of claim and are, instead, approaching discovery with a shotgun. Answers to such burdensome, blunderbuss questions are of no value to defendants, who obviously set sail on some unchartered fishing expedition.

Similarly, in action Nos. 3 and 4, a recitation of every medical article, journal, and textbook ever read by a health care provider can provide no helpful information from which an [*9]insurer can mount a defense, putting aside the unknown contents of the undisclosed NF-10.

The sole purpose of defense counsel in posing such irrelevant questions and demands is transparent. The intention is to make life so vexatious, burdensome, overwhelming, and oppressive for a plaintiff’s counsel, its client—the health care provider—and also the patient, that they are bludgeoned into abandoning the claim for recovery of payment. If a health care provider cannot recover because of oppressive litigation, it may seek recovery from the patient, thereby totally undermining the intention of the No-Fault Law. The above questions were evidently posited by defense counsel for such purpose and in bad faith.

To the extent that the discovery demands also contained proper requests, it is well settled that a court will not prune an improper demand in order to save the nonobjectionable questions, but, instead, will reject the entire discovery demand (see, Haszinger v Praver, 12 AD3d 485 [2d Dept 2004]; Nazario, 90 AD2d at 484, supra; Forest Bay Homes v Kosinski, 65 AD2d 589 [2d Dept 1978]; Horn Constr. Co. v Icos Corp. of Am., 63 AD2d 939 [1st Dept 1978]).

The final issue is whether this court should strike the demands in the absence of any motion for a protective order. Counsel for the plaintiffs, indeed, did not submit opposition papers to the motions. As a practical consideration, one must surely wonder whether in claims for minor sums of money, such as those in three of the six cases, seeking $202.20, $575, and $505.50 (the other three cases each involving only about $1,800), whether a plaintiff’s counsel will even consider it affordable or “smart business” to spend several hours in drafting opposition papers and traveling to and attending court appearances to challenge a patently oppressive demand.

This court is familiar and disagrees with the holding in MOPS Med. Supply v GEICO Ins. Co. (4 Misc 3d 185 [Civ Ct, Kings County 2004]), requiring plaintiff’s counsel to make a motion for a protective order to deny or limit a patently harassing discovery demand. Although in most instances, the need for such a motion is desirable, the court in MOPS Med. lost sight of the fact that no-fault litigation is carved out by legislative fiat, is clothed with a set of technical and strictly construed Department of Insurance regulations, has a special mission defined in statute, regulations, and case law, carries statutory monthly interest and attorneys’ fees to a prevailing plaintiff, and, therefore, should not be likened to a garden variety litigation of a common-law action. Our appellate courts have further emphasized that, in no-fault litigation, the denial of claim form is the bedrock in resolving no-fault disputes, an insurer must “stand or fall” upon its denial (King v State Farm Mut. Auto. Ins. Co., 218 AD2d at 865, supra), and the entire procedure is to be streamlined, provided that insurers have sufficient opportunity to contest illegitimate and fraudulent claims (Presbyterian Hosp., 90 NY2d at 285).

The consolidated six motions were submitted on default. This court is not a rubberstamp for every motion that is taken on default. Each such motion must be reviewed to determine whether the movant is entitled to the relief sought. In the present case, in light of the interdictions from the Court of Appeals in Presbyterian Hosp. (90 NY2d 274 [1997], supra), this court would be remiss, even derelict, if it were blindly to give its imprimatur to discovery demands that thwart the basic tenets of the No-Fault Law. Since the no-fault enactment is endowed with a special objective, for this court to sustain, even on default, a patently burdensome set of demands would make it complicit in undermining the no-fault scheme and would simply embolden the defense bar to attempt to defeat recovery by unleashing a barrage of mindless, [*10]burdensome, and oppressive discovery demands.

Finally, the court wants to caution the defense bar that, in the future, it will require the inclusion of the NF-10 denial form or proof of a timely demand for verification, the NF-3 or NF-5, in any motion to compel or preclude or strike or dismiss based on alleged failure to cooperate in discovery. Since any reason for the denial of the claim must be specifically stated in the NF-10, that form must be included so that a reviewing court can pass on the propriety of the requested disclosure in an action for no-fault first-party benefits. The need for disclosure must be substantiated by the reasons for denial contained in the NF-10 and not simply predicated upon a plethora of unpreserved affirmative defenses asserted in the answer as an afterthought.

Each of the six motions, accordingly, is, in all respects, denied.

Civil Court of the City of New York, Kings County

97383/04

Eileen N. Nadelson, J.

Plaintiff instituted this action for first party benefits pursuant to New York’s No-Fault Insurance Law. Plaintiff allegedly provided its assignor with psychological services. Its bill was received by Defendant insurer on August 8, 2003, as evidenced by the statements appearing on its Denial of Claim Form.

According to Defendant, on the same day it received Plaintiff’s bill it mailed Plaintiff a verification request. This notice states:

We are writing to advise there will be a delay with regard to the disposition of

your Psychological claim.

Processing of this claim will be delayed pending our receipt of the results of an

independent medical examination scheduled to verify:

the injury is casually related to the motor vehicle accident [*2]

On September 10, 2003, Defendant avers that it mailed a second notice that states:

Pleased be advised we cannot consider payment due to the following:

We are delaying your bill pending the results of the causality IME

Plaintiff denies ever receiving these notices, and Defendant has not provided a legally sufficient proof of mailing said notices to Plaintiff.

On January 13, 2004, more than 30-days after receipt of the claim, Defendant issued its denial of claim, basing its denial of benefits on Plaintiff’s “failure to provide requested verification and examination under oath to support the rendition and necessity of services and to establish your entitlement to benefits.”

In its response to the instant motion, Defendant asserts that Plaintiff has engaged in a consistent pattern of fraud with respect to billing for psychological services under the No-Fault statute. In support of this contention, Defendant provides a form it sent to the Frauds Bureau of the New York State Insurance Department and the affidavits of various assignors in other claims who indicate that they did not receive the services billed for from Plaintiff. The court notes that no such affidavit is provided for the instant assignor.

11 NYCRR sec. 65-3.3 states that an insurer must either pay or deny a claim for first party benefits under the No-Fault law within 30 days of receipt of a properly completed claim. This 30-day time period may be extended if the insurer requests verification of the claim, and until such verification is received the 30-day period is tolled. See generally Westchester County Medical Center v. New York Central Mut. Fire Ins. Co., 262 AD2d 553, 692 N.Y.S. 2d 665 (2d Dept. 1999)

I n order to meet the mandates of the regulations, the insurer must demonstrate that the request for verification was properly mailed to the claimant. See Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 AD2d 374, 726 N.Y.S. 2d 443 (2d Dept. 2001). In the instant case, Plaintiff denies ever receiving such requests and Defendant has not refuted that allegation with an affidavit of a person with personal knowledge of the mailing or of the insurer’s mailing procedures. Allstate Social Work and Psychological Svcs PLLC v. GEICO General Insurance Co., 2005 NY Slip Op. 50024(U), 2005 WL 107046 (NY City Civ. Ct). Therefore, for this reason alone the court may conclude that the 30-day period prescribed under 11 NYCRR sec. 65-3.3 was not properly tolled.

Furthermore, the wording of the notices as written above do not constitute proper verification requests. The notices, as submitted in the papers to the court, merely state that the processing of the claim will be delayed pending the results of the verification, but nowhere has Plaintiff been specifically asked to verify the claim. Consequently, these notices do not constitute proper verification requests that would toll the 30-day period pursuant to 11 NYCRR sec. 65-3.8. [*3]

However, even though Defendant failed to adhere to statutory time requirements, the court must still address Defendant’s argument that Plaintiff’s claims are not covered because of fraud. The lateness of a denial or the absence of a required denial does not prohibit the insurer from raising the defense of lack coverage based upon the fact or founded belief that the alleged injury did not arise out of an insured incident. A.M. Medical Services, P.C. v. AIU Insurance Company, 4 Misc 3d 1027A, 2004 NY Slip Op. 5108(U) (Nassau 2004). The issue of fraud is not intended to escape the notice of the court simply because of a late denial. Valley Psychological, P.C. v. Liberty Mutual Insurance Co., 195 Misc 2d 540, 760 N.Y.S. 2d 627 (Albany 2002). However, although the affidavits submitted indicate serious problems with Plaintiff’s billing practices and services, Defendant has failed to demonstrate any fraud with respect to the instant claim.

All of the documents appearing in the papers refer to different claims with different assignors, and the court cannot rule based on the adage that “where there’s smoke, there’s fire.” The burden is on the Defendant to provide the court with adequate evidence of potential fraud with respect to the parties before it in order for the court to substantiate its decision. Therefore, the court cannot conclude that there was any problem with respect to the claim at bar.

Based on the foregoing, the court is forced to conclude that Plaintiff is entitled to summary judgment in the amount of $1200.92 plus statutory interest, attorney’s fees and costs.

Dated: February 10, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court of the City of New York, Kings County

055906/04

Loren Baily-Schiffman, J.

Plaintiff moves for summary judgment on claims for first party No-Fault benefits.^[FN1] Plaintiff, a provider of health services and the assignee of its patient’s claims for payment, seeks $1,559.33 plus statutory interest and attorneys fees for three claims for acupuncture services. For the reasons stated below, Plaintiff’s motion is granted.

In order to establish a prima facie case on behalf of a provider, plaintiff must submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Pursuant to Insurance Law §5101 et seq. and the regulations promulgated [*2]thereunder, an insurer must either pay or deny a claim for No-Fault benefits within thirty (30) days of the date that the proof of claim is received. Insurance Law §5106; 11 NYCRR 65.15 (g)(3). The thirty (30) day period may be extended by an insurer’s request for verification of the claim within ten (10) business days for claims submitted prior to April 5, 2002 and fifteen (15) business days for subsequent claims. 11 NYCRR 65.15 (d) & (e). An insurer who fails to deny or pay a claim within the thirty (30) day period is precluded from raising any defenses to the claim, other than lack of coverage or fraud. Presbyterian Hospital v. Maryland Casualty Co., 90 NY2d 274 (1997); Presbyterian Hospital v. Aetna Casualty & Surety Co., 233 AD2d 433 (2d Dept., 1996); Central Hospital v. Chubb, 90 NY2d 195 (1997); Mt. Sinai v. Triboro Coach, 263 AD2d 11 (2d Dept., 1999). An insurer’s failure to raise objections within the ten (10) or (15) day verification period constitutes a waiver of defenses based thereon. Id.

A party moving for summary judgment must show by admissible proof that there are no material issues of fact in controversy and that they are entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York Univ. Medical Center, 64 NY2d 851 (1985). Once that showing is made, the burden shifts to the opponent of summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy that require a trial. Id.

Plaintiff asserts that it is entitled to summary judgment because defendant failed to pay any of the subject claims within thirty (30) days of receipt and denied the claims on an impermissible basis: failure of the assignor to appear for IME’s. Defendant opposes the motion on the following bases: 1) that plaintiff’s motion papers fail to prove the medical necessity of the services provided; 2) that the assignment of benefits is not authenticated; 3) the bills attached to the motion are not in admissible form and, as such, may not be considered in support of plaintiff’s motion; and 4) the claims were timely denied.

DISCUSSION

The case law in this Judicial District is clear that plaintiff need not prove medical necessity, authenticate the assignment of benefits or present its bills in admissible form in order to make out its prima facie case for summary judgment. Plaintiff need only submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Accordingly, the only issues which need be decided by the Court are the timeliness of defendant’s denials of the three claims that are the subject of this action and, if the Court finds any of the denials to be timely, whether failure to appear for IME’s is a proper basis on which to deny a claim.

Defendant responded to plaintiff’s claims dated June 26, 2002, July 23, 2002 and August 19, 2002 with one denial dated September 9, 2002. In that denial, defendant indicates that the June 26, 2002 claim was received on July 29, 2002; the July 23, 2002 claim was received on [*3]August 21, 2002; and the August 19, 2002 claim was received on August 26, 2002. Each of plaintiff’s claims is accompanied by a postal log stamped by the Postal Service indicating that the claim was mailed on the day it is dated. The explanation for why each claim was received by defendant weeks after it was mailed comes from the Affirmation of Gary Coore, a Litigation Supervisor employed by defendant. Mr. Coore states that defendant received the June 26, 2002 claim on July 1, 2002 and on July 18, 2002 sent plaintiff a letter indicating that defendant was delaying investigation of the claim pending receipt of certain identified information. Defendant states that this letter is a request for verification that was timely requested within the fifteen (15) business days permitted by NYCRR §65-3.5. According to Mr. Coore, the requested information was received on July 29, 2002. Independent medical examinations (IMEs) were then scheduled for the assignor, Mason Cory. Mr. Cory allegedly failed to appear for six (6) IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. A denial was issued on September 9, 2002 on the basis that the assignor failed to appear for IMEs. Defendant asserts that this denial was timely.

The Affidavit of Gary Coore states that the defendant received plaintiff’s July 23, 2002 claim on July 26, 2002 and on July 31, 2002 sent a delay letter to plaintiff requesting certain specified information. Mr. Coore also states that this claim was denied on September 9, 2002 for the assignor’s failure to appear at the IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. Mr. Coore states that plaintiff’s August 19, 2002 claim was received on August 21, 2002 and denied on September 9, 2002 for failure to appear at the aforementioned IMEs.

Timeliness of June 26, 2002 Claim

This claim was received by defendant on July 1, 2002 accordingly to the admission of Mr. Coore contained in his Affidavit in opposition to the instant motion. Mr. Coore states that a request for verification was sent on July 18, 2002, but no proof of mailing of this document is provided to permit the Court to determine whether the request was timely sent. Mr. Coore goes on to admit that responses to the request for verification were received on July 29, 2002. The claim was denied on September 9, 2002 on several bases: 1) that all No-Fault benefits for injured person were denied effective May 19, 2002; and 2) that the injured person failed to appear for IME’s on August 1, 2002 and August 15, 2002.

Pursuant to 11 NYCRR §65.15(c)(3), after receipt of requested verification information, an insurer has thirty (30) days within which to pay or deny the subject claim. Here, defendant has admitted that it received the requested verification information on July 29, 2002, yet the claim was not denied until September 9, 2002. The actions of the insurer in scheduling IME’s after receipt of the requested information did not extend its time to pay or deny the claim Choicenet Chiropractic, PC v. Elco Administrative Services Co., 2002 NY Slip Op. 40382 (Civil Court, Queens Co.), nor is the failure to appear for IME’s a permissible basis upon which to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co. 2001 NY [*4]Slip Op. 40655, (App. Term, 2d & 11th Jud. Dists, 2001); Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., 2001 NY Slip Op. 40654 (App. Term, 2d & 11th Jud. Dists., 2001). Accordingly, the July 26, 2002 claim was not timely denied.

Timeliness of July 23, 2002 Claim

The July 23, 2002 claim was received by the insurer on July 31, 2002 and denied on September 9, 2002. Annexed to Mr. Coore’s Affidavit is a document he refers to as a “pend letter” which by its terms requests that certain information be provided. However, there is no indication in the papers in opposition to the instant motion that this document was mailed to plaintiff, on what date or by what means it was mailed or if any response to the letter was received. Mr. Coore only states that IME’s were scheduled, the assignor failed to appear for the IME’s and a “timely denial” was issued on September 9, 2002.

As indicated above, the assignor’s failure to appear for IME’s is not a proper basis to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra. Moreover, as defendant has failed to prove that a request for verification was mailed to plaintiff, if the “pend letter” can be considered a request for verification, the thirty (30) day time period within which to deny a claim was never extended. The claim was received on July 31, 2002 and was not paid or denied within thirty (30) days thereafter. Accordingly, the denial of this claim is untimely.

Timeliness of August 19, 2002 Claim

This claim was received by the insurer on August 21, 2002. Defendant does not allege in its opposition papers that a request for verification of this claim was sent to plaintiff. Mr. Coore’s Affidavit states that IME’s were scheduled to be held prior to the receipt of this claim. The assignor failed to appear at these IME’s and

the insurer denied the claim on September 9, 2002 on the basis of the failure to appear at these previously scheduled IME’s. The insurer’s actions in response to this claim are analogous to situations where an insurer relies on a previous denial to deny a current claim. The Appellate Division, 1st Department, stated the following in A&S Medical, PC v. Allstate Ins. Co., 2005 NY Slip Op. 00505 (1 Dept., 2005)

When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.

Quoting Atlantis Medical, PC v. Liberty Mutual Ins. Co., 2002 NY Slip Op. 40043 (Dist Ct, Nassau Co,3d Dist, Great Neck Part). The statute and the regulations, similarly, do not permit the insurer after receipt of a claim to

simply sit mute” and deny the claim based upon an earlier failure to appear at IME’s. While this [*5]denial is timely, the basis for the denial is unavailable to defendant. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra.

For all the foregoing reasons, summary judgment is granted to plaintiff in the sum of $1559.33 plus statutory interest and attorneys to be computed by the Clerk of the Court.

This constitutes the Decision and Order of the Court.

Dated:February 9, 2005

__________________________

HON. LOREN BAILY-SCHIFFMAN

Footnotes

Footnote 1:Plaintiff has presented motion papers that are generic in nature and are more like a brief on No-Fault law than support for specific relief related to the claims and denials annexed as exhibits to the motion papers. The Court looks with disfavor on this practice which requires the Court to leaf through the exhibits to divine the factual basis for the relief sought in the motion.