[*1]

Civil Court of the City of New York, Queens County, June 17, 2004

APPEARANCES OF COUNSEL

Teresa Spina, Woodbury, for defendant. Baker & Barshay, LLP, Hauppauge, for plaintiffs.

{**4 Misc 3d at 521} OPINION OF THE COURT

Edgar G. Walker and Bernice D. Siegal, JJ.{**4 Misc 3d at 522}

The above-captioned actions (still in the discovery stage), commenced to recover first-party no-fault benefits, have been consolidated, sua sponte, for the sole purpose of deciding the motions brought by defendant to dismiss plaintiffs’ complaints pursuant to CPLR 3126. Although it is not unusual to consolidate matters presenting the same issues before one judge, it is perhaps unorthodox for two judges in Civil Court to join in an opinion deciding motions submitted to them individually for decision. In the interest of judicial economy and as all these motions present one manifest legal conundrum within the identical procedural posture, as will become clear, we join in granting defendant’s motion and, accordingly, dismiss plaintiffs’ complaints.

The actions were commenced by service of summons and complaint. Along with its answer, defendant served various discovery demands upon plaintiffs including a notice to take a deposition upon oral examination. Each such demand was noticed for a specific date, whereupon the plaintiffs did not appear. Upon plaintiffs’ default, defendant made its initial motion to dismiss for failure to appear at said depositions. Each motion was resolved by a stipulation, drafted and executed by respective counsel, wherein the plaintiffs agreed to produce, for examination before trial (EBT), on or before a date certain, an individual with personal knowledge to establish its prima facie case and, if “medical necessity” was the basis of defendant’s denial, an individual having “personal knowledge of the treatment allegedly rendered.” The parties further agreed that “[i]n the event that plaintiff fails to appear for said examination or fails to produce someone with personal knowledge as to the medical necessity of the services allegedly provided (if so required) plaintiff will be precluded from offering evidence at trial” (emphasis added).

The stipulation was then “so ordered” by the judge sitting in Special Term. [*2]Defendant, by affirmation of the attorney with personal knowledge of the steps taken to ensure compliance, indicated telephonic and written communication to plaintiffs’ counsel concerning the depositions. Upon plaintiffs’ failure to appear on the outside dates, a record of default was taken and these motions ensued. To date no one has appeared for any of the depositions on behalf of plaintiffs herein.

The issue is not, as noted by plaintiffs’ attorney in his affirmation in opposition, “what penalty is appropriate for plaintiff[s’] non-compliance.” That question was answered by the parties {**4 Misc 3d at 523}themselves when they entered into the stipulations. 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. (Nishman v De Marco, 76 AD2d 360 [2d Dept 1980]; Siltan v City of New York, 300 AD2d 298 [2d Dept 2002]; Matter of Evelyn P., 135 AD2d 716 [2d Dept 1987].)

What is striking about plaintiffs’ papers is the utter lack of showing of any excuse or reason for their failure to appear or produce any witness for the agreed upon depositions, nor is there any commitment to do so if given still another opportunity. Even at this stage of the litigation, the court might have considered yet another conditional order, if plaintiffs had requested same and offered a sufficient excuse for their failure to comply with the prior order and provided reasonable assurances that they would comply in the future. (See e.g., Bohlman v Reichman, 97 AD2d 426 [2d Dept 1983].)

Rather, plaintiffs seek to be relieved of the consequences of an agreement, which, in hindsight they regret having made. It may well be that had plaintiffs not entered into the stipulations to resolve the prior motions, the court would not have ordered depositions or imposed the sanction specified in the stipulations for plaintiffs’ failure to comply. However, the 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. (Tinter v Tinter, 96 AD2d 556 [2d Dept 1983]; Siltan v City of New York, supra.) Plaintiffs, not having pursued their arguments that defendant was not entitled to an EBT in opposition to the initial motion, may not now raise those arguments to excuse their failure to comply with the stipulation.

The so-ordered stipulations functioned as conditional orders of preclusion, which became absolute upon the plaintiffs’ failure to comply. (Id.) If preclusion will prevent plaintiffs from making a prima facie case, the motion to dismiss should be granted. (Jenkinson v Naccarato, 286 AD2d 420 [2d Dept 2001].)

Plaintiffs argue that they can prove their prima facie case by calling an employee of the defendant to testify at trial. However, what is provided for in the stipulation is evidence preclusion, not merely witness preclusion. The plaintiffs are precluded from “offering evidence,” not merely calling a specified witness. Therefore, {**4 Misc 3d at 524}the plaintiffs will be unable to establish a prima facie case.

Defendant’s motions to dismiss are granted.

[*1]

Civil Court of the City of New York, Queens County, June 2, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck (Samuel S. Marcus of counsel), for plaintiffs. Freiberg & Peck, New York City (Meredith Gursky of counsel), for defendant.

{**4 Misc 3d at 444} OPINION OF THE COURT

Edgar G. Walker, J.

{**4 Misc 3d at 445}In this action to recover unpaid benefits claimed to be due for medical services allegedly rendered to its assignor, plaintiff^[FN*] has moved for summary judgment. In support of the motion plaintiff has annexed, inter alia, the claim form it submitted to the defendant which it claims was neither timely paid nor denied. Defendant, in opposition, claims, inter alia, the form is not the prescribed New York State form N-F 3. Rather, plaintiff has utilized the generic health insurance claim form, HCFA/CMS 1500.

The claim form is signed by the treating doctor, Myung Choi. However, Dr. Choi is not a plaintiff herein nor is he the applicant patient’s assignee. The claim was assigned to the plaintiff which submitted the claim form to the defendant. Where, as in this case, the treating provider is different than the billing provider, form N-F 3 (item 16) requires disclosure of the business relationship between the treating provider and the billing provider (employee, independent contractor, other). Form 1500 does not call for such information nor is the relationship disclosed anywhere on the form submitted by the plaintiff to the defendant.

A complete proof of claim is a prerequisite to entitlement to no-fault benefits. (St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2000]; Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569 [1989].) While a form other than the prescribed form may be used, it must contain “substantially the same information as the prescribed form.” (11 NYCRR 65.15 [d] [5].) The court must, therefore, determine whether, in the absence of the information called for in item 16 of form N-F 3, the form submitted by plaintiff is sufficient to establish its right to payment from the defendant.

Plaintiff submitted this claim as the assignee of the applicant for no-fault benefits, but no-[*2]fault benefits are not freely assignable to any person or entity without restriction. The Insurance Department regulations provide, in relevant part, for direct payment of benefits “directly to the applicant . . . or, upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1] [emphasis supplied]). Pursuant to this regulation, plaintiff would be entitled to payment from the defendant as assignee only if it was the provider of the services billed {**4 Misc 3d at 446}for. If the treating provider was an employee of the billing provider, the billing provider would be considered a provider of services, through its employee, and thereby entitled under the regulation to direct payment. If, however, the treating provider was an independent contractor, the billing provider would not be entitled to direct payment under the regulation since it did not provide services to the applicant patient.

The significance of the information required by item 16 of form N-F 3 is apparent. It relates directly to the right of the billing provider to receive direct payment from the insurer as the assignee of the applicant. At least where, as in this case, the billing provider is not the treating provider, the submission of form 1500 does not constitute a complete proof of claim.

Since plaintiff did not submit a proper proof of claim, it failed to establish a prima facie case of entitlement to payment of no-fault benefits. The motion must, therefore, be denied regardless of the sufficiency of the opposing papers. (Alvarez v Prospect Hosp., 68 NY2d 320 [1986].)

Footnotes

Footnote *: Although there are two named plaintiffs in the caption, the moving papers make no reference to Jamil M. Abraham M.D. P.C., doing business as Park Health Center. As used herein “plaintiff” refers solely to Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center.

[*1]

Civil Court of the City of New York, Kings County, May 3, 2004

APPEARANCES OF COUNSEL

Teresa Spina, Woodbury (Kevin Barry of counsel), for defendant. Anatta Levinsky, P.C., Brooklyn, for plaintiff.

{**4 Misc 3d at 185} OPINION OF THE COURT

Ellen Gesmer, J.

{**4 Misc 3d at 186}Defendant has moved to dismiss plaintiff’s complaint pursuant to CPLR 3126 because plaintiff failed to appear at an examination before trial (EBT) scheduled by defendant. Defendant’s motion is granted unless the plaintiff appears for an EBT under the terms set forth below.

Procedural History and Facts

In this action, plaintiff is seeking payment of first-party no-fault benefits for medical equipment provided by it to Leonie Joiles, who assigned to plaintiff her rights to no-fault benefits from defendant, her insurer.^[FN*] The defendant timely denied payment, on the grounds of medical necessity, based on an independent medical peer review. [*2]

Plaintiff commenced this action on or about March 20, 2003. Simultaneously with the service of its answer on April 9, 2003, defendant served plaintiff with a demand for verified interrogatories and a notice to take deposition upon oral examination. The answers to the interrogatories were due 20 days later and the deposition was scheduled for June 18, 2003, more than 60 days later. At plaintiff’s request, defendant rescheduled the deposition to August 26, 2003. Plaintiff failed to appear.

Analysis

Although the CPLR permits a party to utilize both written interrogatories and oral depositions in pretrial discovery, a party should generally complete one form of discovery before invoking another (Giffords Oil Co. v Spinogatti, 96 AD2d 851 [2d Dept 1983]; Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Indeed, the Second Department has held that “the noticing of an oral deposition prior to reviewing the answers interposed to the interrogatories and without a determination of the necessity for further disclosure, verges on an abuse of the judicial system.” (Barouh Eaton Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874 [2d Dept 1980].) In this case, although the defendant noticed the deposition at the same time that it sent the demand for {**4 Misc 3d at 187}interrogatories, it did not take any action to enforce its request for a deposition until well after receiving the interrogatories. Moreover, in support of its motion, defendant’s counsel affirmatively asserts that “the examination before trial of plaintiff is necessary and material in order to defend this action properly,” thus meeting the standard set by the Second Department for using a second discovery device (Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized”]). Consequently, defendant has established a prima facie case that it is entitled to go forward with its deposition.

In opposition to defendant’s motion, plaintiff initially argues that it made a demand for verified interrogatories to which defendant did not respond. Plaintiff has failed, however, to show why defendant’s failure to respond to interrogatories would excuse its failure to attend a deposition or serve as a defense to a motion to compel. In any event, this argument is particularly weak because plaintiff’s deposition was scheduled for August 26, 2003, well before the responses to plaintiff’s demand for interrogatories were even due.

More substantially, plaintiff argues, relying on Ostia Med. v Government Empls. Ins. Co. (1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau Dist Ct 2003]) and Zlatnick v Government Empls. Ins. Co. (2 Misc 3d 347 [Civ Ct, Queens County 2003]), that defendant may not proceed with its deposition because it failed to advise plaintiff that its answers to defendant’s demand for verified interrogatories were “inadequate, incomplete or defective.” The court rejects this argument for several reasons.

First, unlike the plaintiff medical providers in Ostia and Zlatnick, the plaintiff in this case did not move for a protective order with regard to the deposition, pursuant to CPLR 3103, and still has not done so. While there is no absolute time limit for moving for a protective order, the [*3]court may imply a standard of reasonableness, especially where the time for the scheduled deposition has long passed (Philip v Monarch Knitting Mach. Corp., 169 AD2d 603 [1st Dept 1991]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). Plaintiff is in a particularly poor position to complain about being compelled to appear at the deposition since it took no action to object to the deposition either before it was scheduled or in the eight months since. While that would not prevent {**4 Misc 3d at 188}plaintiff from opposing this motion, it would certainly have been the better practice for plaintiff to move for a protective order rather than to just ignore defendant’s deposition notice.

Secondly, this court disagrees with the rulings in Ostia and Zlatnick that the burden is on the defendant insurance company to justify its need for a deposition. Indeed, that conclusion seems inconsistent with the holding in Ostia that a medical provider which brings an action in Civil Court to obtain no-fault benefits has the same discovery obligations under article 31 of the CPLR as any other litigant (Ostia, 2003 NY Slip Op 51560[U], *12; see also Albatros Med. v Government Empls. Ins. Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). As set forth above, the general rule is that if a litigant determines that the responses to interrogatories from the other side do “not adequately disclose all evidence material and necessary to the prosecution or defense of the action,” then it may utilize depositions or any other available remedy, without first seeking court permission (Katz v Posner, 23 AD2d at 775). If the other party moves for a protective order, it must then bear the burden of showing that the discovery sought is not necessary, consistent with the well-established principle that “the burden of demonstrating an immunity from discovery is on the party asserting the immunity.” (Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627, 628 [1st Dept 1984]; see also Koump v Smith, 25 NY2d 287, 294 [1969]; Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689, 690 [1st Dept 1993]; Jarvis v Jarvis, 141 Misc 2d 404, 406 [Sup Ct, NY County 1988].) The decisions in Ostia and Zlatnick improperly shift the burden to the party seeking discovery to justify a request for discovery, rather than imposing the burden on the party seeking to avoid discovery to show that the discovery sought is not necessary. In this case, plaintiff has certainly not met its burden of showing that the discovery sought is not proper.

Third, even if the court were to find that the burden is on defendant to show that the discovery is justified, it would find that defendant had met its burden. First, defendant has shown that it made a timely denial based on medical necessity, so defendant has preserved issues on which discovery is appropriate (Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Ostia, 2003 NY Slip Op 51560[U], *11). Secondly, plaintiff’s responses to defendant’s interrogatories are insufficient on their face for at least two reasons. As an initial matter, the responses to {**4 Misc 3d at 189}the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney. Consequently, as formulated, the interrogatories do not subject plaintiff or its principals to cross-examination, as would properly verified interrogatories. Finally, plaintiff fails to set forth any responses to the interrogatories concerning the medical necessity of the equipment provided. Since that is the crux of the issue in this case, defendant is entitled to conduct a deposition of plaintiff to obtain the information. [*4]

Conclusion

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has disobeyed a court order is a matter within the discretion of the court (Jaffe v Hubbard, 299 AD2d 395, 396 [2d Dept 2002]). Although the court has rejected plaintiff’s arguments, the court finds that plaintiff presented a good faith argument for its failure to attend the scheduled deposition. Accordingly, the court holds that the correct remedy in this case is to permit plaintiff an opportunity to appear for a deposition, subject to the penalty of dismissal of plaintiff’s case if it fails to do so. The plaintiff shall appear for a deposition at a date, time and place to be agreed to between the parties, or, failing agreement, at 10:00 a.m. on June 14, 2004 at the courthouse located at 141 Livingston St., Brooklyn, New York. In the event that plaintiff does not appear for a deposition on the date agreed to by the parties or on the date set by the court, defendant may settle an order on notice, pursuant to 22 NYCRR 208.33, dismissing the action.

Footnotes

Footnote *: The complaint does not allege that Ms. Joiles was injured in a car accident, which is an essential element of a claim under the No-Fault Law (Insurance Law § 5103). Accordingly, the court could dismiss the complaint sua sponte for failure to state a cause of action. The complaint refers to an annexed claim for payment, which was not attached to the copy of the complaint submitted with the moving papers. The claim for payment may have provided the missing information, since the denial of the claim refers to Ms. Joiles as the “injured person” and refers to an accident on May 18, 2000. Accordingly, the court will not dismiss the complaint, but cautions counsel to include the necessary allegations in their complaints.

[*1]

Civil Court of the City of New York, Queens County, April 12, 2004

APPEARANCES OF COUNSEL

Meiselman, Denlea, Packman & Eberz P.C., White Plains (James G. Eberz of counsel), for defendant. Baker & Barshay, LLP, Hauppauge (Gil McLean of counsel), for plaintiff.

{**3 Misc 3d at 926} OPINION OF THE COURT

Charles J. Markey, J.

The principal issue in defendant Republic Western Insurance Company’s motion to reargue—incorrectly labeled a motion to renew—is the propriety of this court, in its prior decision of July 7, 2003 (reported electronically at 2003 NY Slip Op 51070[U] [2003]), in employing information made available on a state governmental Web site and examining and using admissions, statements made by both Republic and its sibling corporation, U-Haul, on their Internet Web sites. This motion to reargue appears to be the first in the nation to challenge a court’s use of the Internet to deflate the sails of a party’s arguments.

In the prior opinion, this court, addressing an issue of then first impression in this state, rejected a motion by Republic to dismiss for lack of subject matter jurisdiction, pursuant to New York Civil Court Act § 404, or to dismiss for forum non conveniens. The plaintiff health care provider, N.Y.C. Medical and Neurodiagnostic, P.C., is the assignee of no-fault first-party benefits. The vehicle that was involved in the accident causing injury was owned by U-Haul International, Inc., famous for its rental of vehicles, and was leased or rented from a U-Haul facility in the City of New York, and was insured by defendant Republic. The basis of Republic’s prior motion to dismiss was that its underwriting of all U-Haul vehicles was done in the State of Arizona, it is incorporated in the State of Arizona, and that the sole office out of which it conducts business in the State of New York is located in the Town of Purchase, in the County of Westchester.{**3 Misc 3d at 927} According to Republic’s logic and prior arguments, the facts that the U-Haul vehicle was rented in New York City, the U-Haul vehicle was insured by Republic, the accident occurred in New York City, the persons involved in the accident reside in New York City, and the health care provider from which the assignor sought treatment—under a state-[*2]controlled system of no-fault benefits—is located in Queens County, in New York City, are all entitled to no weight.

According to Republic, the only places where the plaintiff health care provider could litigate the issue of reimbursement against insurer Republic would be in either Westchester County or the State of Arizona. Since this court does not agree that the tail wags the dog, under the proverbial adage, it rejected totally Republic’s motion to dismiss. This court’s seminal decision on the issue on whether the Civil Court of the City of New York has jurisdiction will soon be argued before the Appellate Term, Second and Eleventh Judicial Districts (case No. 2003-1472).

As an initial matter, counsel for Republic moves to renew this court’s prior decision. The fact that James G. Eberz, Esq., a partner of the firm representing Republic, calls this motion one to renew is not dispositive (see, Alpert v Wolf, 194 Misc 2d 126, 133 [Civ Ct, NY County 2002]). A trial court has an obligation to appellate justices to correct any mislabeling of a motion, so as not to add to the burdens of the reviewing justices. Fundamental differences exist between a motion to reargue and one to renew. The motion to reargue simply states that the court overlooked or misapprehended the facts or the law. The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the court originally (see discussion in Alpert v Wolf, 194 Misc 2d at 133; D. Siegel, NY Prac § 254 [3d ed 1999]). Republic, however, fails to set forth any new facts and simply rehashes its old and rejected arguments. This court doubts that Mr. Eberz and his law firm are ignorant of the distinctions, since the denial of a motion to renew is appealable, whereas the denial of a motion to reargue is not appealable (see, Pizarro v Evergreen Estates Hous., 5 AD3d 143 [1st Dept 2004]; Ruddock v Boland Rentals, 5 AD3d 368 [2d Dept 2004]).^{[FN1]{**3 Misc 3d at 928}}

The present motion to reargue, as it ought to have been denominated, assails this court, for two reasons. First, Republic’s motion states that the court should not have looked for the information posted on the Web site of the Department of Insurance of the State of New York (, cited in the prior opinion, 2004 NY Slip Op 51070[U], *6), disclosing that it is authorized to engage in the business of insurance in the State of New York. Second, Republic’s counsel contends that this court erred in searching the Web sites of Republic and its sibling corporation, [*3]U-Haul.

Turning first to the contention that this court’s use of a state governmental Web site was improper, the examples of court decisions making similar citations are legion. In Efam Enters. v Travelers Indem. Co. of Am. (2002 WL 1148830, 2002 US Dist LEXIS 10046 [SD NY, May 29, 2002]), for example, the federal court referred to both the Web sites of the New York State and Connecticut Departments of Insurance to verify the defendant insurer’s identity and corporate status (accord, United States Postal Serv. v Flamingo Indus. [USA], Ltd., 540 US —, —, 124 S Ct 1321, 1329 [2004] [unanimous Supreme Court referred to revenue and business of the United States Postal Service, as detailed on its Web site]; Verizon Communications Inc. v Law Offices of Curtis V. Trinko, LLP, 540 US —, —, 124 S Ct 872, 877 [2004] [referring to consent decree on Web site of the Federal Communications Commission]; Doe v Merten, 219 FRD 387, 396 n 28 [ED Va 2004] [citing statistics on a Web site compiled by the Bureau of Citizenship and Immigration Services of the United States Department of Homeland Security]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 234 n 1, 238 n 7 [2001] [citing homicide statistics maintained by governmental agencies and explanation of tracing a gun’s ownership from the Web site of the Bureau of Alcohol, Tobacco and Firearms]).

Legislative bodies, courts, governmental agencies, and public entities have commendably made information available on {**3 Misc 3d at 929}Web sites that have dramatically facilitated the quick location of information. Just as computerized research of Westlaw and LEXIS have made resort to more time-consuming conventional research secondary, factual information and data that, in the past, would have taken days and hours to retrieve, are now available in a matter of seconds. Technological breakthroughs, including the immediate scanning of important documents and the tapping of a few strokes on a computer keyboard, speed fact-finding, ensure that documents will not be lost, misplaced, or stolen, and are highly reliable. For a researcher not to employ information placed on a governmental Web site, by a civil servant, for the benefit of the public would, indeed, be negligent and ridiculous. For a judge to ignore these new technological changes, made available by government and encouraged by court systems, would be to blind oneself.

Mr. Eberz, however, suggests that the references on the Web site posted by the Superintendent of Insurance of the State of New York may be incorrect in that Republic is not “licensed” to do business in the State of New York, but only “admitted” to do so. Mr. Eberz does not spell out the distinction or any pragmatic difference between the two terms.

First, Mr. Eberz’s attorney’s affirmation would be insufficient, as a matter of law, to spell out the difference between the two terms, assuming arguendo that there is one. At any rate, Republic is authorized, whether “admitted” or “licensed,” to do insurance business in New York (see, Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County, Nov. 19, 2003], and subsequent order, Index No. 50078/2003, Jan. 6, 2004). The records of the Superintendent of Insurance of the State of New York, posted on a governmental Web site and available to not only the undersigned, but also anyone else with access to the Internet, demonstrate that Republic is authorized to engage in the business of insurance in the State of New York.

The defendant’s argument regarding this court’s use of Republic’s Web site and that of U-Haul, its sibling company, fares no better. Republic’s argument is that this court, using the Web [*4]sites of U-Haul and Republic, found that U-Haul has numerous facilities in each of the five boroughs of the City of New York and that each of those U-Haul vehicles is insured by Republic.

The term “www” stands for the “world wide web” (see, Hill & Assoc. v Compuserve, Inc., 2003 WL 22327827, 2003 US Dist {**3 Misc 3d at 930}LEXIS 18187 [SD Ind, Sept. 26, 2003]). The statements placed on the Web sites of Republic and U-Haul were made, not by this court or some bystander, but by Republic and U-Haul and operate as admissions (see, Intel Corp. v Hamidi, 30 Cal 4th 1342, 1353, 71 P3d 296, 304 [2003] [statement posted on company’s Web site operated as an admission against it]). Second, by the very definition of “the world wide web,” the postings made by Republic and U-Haul were not simply targeted to a select few, to be privately guarded, but were electronically made available for everyone on the face of the earth with access to a computer to see.

Third, this court did not undertake its own personal investigation. Neither the undersigned nor any of its representatives or agents went to a U-Haul facility to take an application for a rental car or inquire about insurance for such a vehicle. This court, moreover, did not undertake its own poll or even send law clerks to the reading room of the main branch of the New York Public Library on Fifth Avenue to dig for statistics, articles, news accounts, or information written by a third party in a remote treatise. The facts secured by this court, furthermore, were not derived by framing term requests on any of the modern, popular search engines—such as Google, MSN Search, Yahoo Search, or Ask Jeeves—and, based on the information derived therefrom, used to fashion a factual argument to sandbag counsel.

Rather, the court, on its own initiative, explored the Web site of a party to this litigation and that of its sibling corporation. The statements made by Republic on its Internet site (www.repwest.com) were made by Republic itself, and, similarly, the statements made by U-Haul on its Web site (www.uhaul.com) were made by U-Haul itself. Republic’s counsel does not even challenge their accuracy. The research of and citation to a publicly posted Web site of a party to this litigation and that of its sibling corporation are proper. Moreover, those publicly available Web site statements merely reiterated what counsel for those two companies have already advised the Appellate Division in Matter of Wausau Ins. Co. v Ogochukwu (295 AD2d 280 [1st Dept 2002]) that Republic insures all U-Haul vehicles.

Republic’s reliance on the case of Central Hanover Bank & Trust Co. v Eisner (276 NY 121 [1937]) is misplaced. In that case, the lower court, disagreeing with the report of the special referee regarding the valuation of a parcel of property, made its own {**3 Misc 3d at 931}viewing of the real estate and noted facts that were not alluded to in the testimony and not directly having to do with the property in question. That type of personal investigation is a far cry from the facts of the instant case, where Republic and its sibling company, U-Haul, have made world wide declarations, on their Web sites, that Republic insures every vehicle rented and leased by U-Haul in the United States.

Fourth, this court’s research, framing a request of ” ‘world wide web’ or ‘www.!’ ” on Westlaw, as of April 12, 2004, resulted in 98 published judicial opinions in reported New York State cases (the NY-CS database) referring to a Web site, 38 such opinions by the Supreme Court of the United States (the SCT database), 1,314 officially reported opinions by all state courts (the allstates database) making such references, and a number of judicial opinions far too vast for Westlaw to retrieve in the databases of all federal courts (allfeds) and the New [*5]York Law Journal. Of the cases found by the framed search terms, this court has not reviewed each of them and, therefore, does not warrant that it involves a citation to an Internet Web site invoked by a court, on its own initiative. A perusal of some of the great number of cases, however, indicates that federal and state courts, throughout the country, readily and without apology, will refer to a Web site whenever necessary or helpful to make a point.

The United States Supreme Court, in Reno v American Civ. Liberties Union (521 US 844, 853 [1997]), discussing the importance of the Web, stated: “From the publisher’s point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers” (id. at 853, quoted by the Court of Appeals with approval in Firth v State of New York, 98 NY2d 365, 370 [2002]; see, e.g., Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 342 [1999] [Court of Appeals referred to a study published on a Web site when discussing the cash value of life insurance policies]).

The Supreme Court’s observation about the Internet’s power and scope is not lost on Republic and U-Haul, companies that smartly employ a Web site in order to drum up business. Corporations want their Web sites to be read, not ignored, and, indeed, are constantly devising ways for search engines to catapult their Web sites to the top of a search request. Republic and U-Haul posted the information on their Web sites, hoping to attract the attention of literally millions of persons spanning the {**3 Misc 3d at 932}globe “for an indefinite period of time” (Firth v State, 98 NY2d at 370). If U-Haul were, indeed, so private about the information contained on its Web site, it would not have emblazoned its Web address so prominently on each of its seemingly ubiquitous vehicles.

Fifth, this court notes that the research on the Web sites was done not on some private personal computer, but on Internet access provided by the Office of Court Administration to the undersigned and every other judge of this state, reflecting a policy that courts utilize emerging technology in dispensing justice.

Finally, the implication of Republic’s argument, that the court was acting as plaintiff’s advocate in constructing an argument, has no merit. In the prior opinion (2003 NY Slip Op 51070[U], *3), marking the seminal decision rejecting Republic’s contention that it did not transact business in the City of New York, this court expressed its dissatisfaction with the initial presentations of both parties to this litigation and directed further submissions. This court then discussed some of the supplemental information supplied by both counsel (at *3-4). This court’s references to the U-Haul and Republic Web sites were thus not the sole foundation for its decision and order.

Trying to minimize its nexus with U-Haul, Republic contends, in its motion to reargue, that there is really no connection, and the fact that there are two sibling companies under one umbrella, “mega corporation,” Amerco, should have no weight. The comparison by Republic’s counsel of the relation of U-Haul and Republic to the sibling companies of other “mega corporations” (citing Cendant and Altria) is unavailing, because the examples of other sibling companies cited in Republic’s papers truly are independent and do not depend on the other’s existence.

In the present case, in stark comparison, it is incontestable that U-Haul would not be able to operate business in the City of New York and the State of New York unless each of its [*6]vehicles had the minimum insurance required by law (Vehicle and Traffic Law § 370 [3]). Each of the U-Haul vehicles could not be rented, would remain idle in the many U-Haul rental facilities located in the City of New York, and would not be permitted to exit their gates onto the thoroughfares of this City, unless it was insured.

In ELRAC, Inc. v Ward (96 NY2d 58 [2001]), a unanimous Court of Appeals explained that, pursuant to Vehicle and Traffic Law {**3 Misc 3d at 933}§ 388, the owner of a motor vehicle may be held civilly liable for any damage caused by the permissive user of the vehicle (96 NY2d at 72-73). Turning to the issue before it in ELRAC, the Court of Appeals continued that Vehicle and Traffic Law § 370 barred a rental or leasing company from pursuing an action for indemnification from its renters for amounts up to the minimum liability requirements (id. at 73). Section 370 (3) requires rental agencies to obtain a minimum amount of insurance for its vehicles (Vehicle and Traffic Law § 370 [3]).

Chief Judge Kaye, speaking for the entire Court in ELRAC, stated:

“The language of section 370 is plain and precise. Common carriers, including rental car companies, are required to obtain insurance for their vehicles . . . Furthermore, the policy must ‘inure to the benefit‘ of any permissive user of the vehicle (Vehicle and Traffic Law § 370 [1] [b] [emphasis added]). A renter is, of course, a permissive user. Thus, section 370 clearly requires the rental company to provide the renter with this minimum level of coverage.” (96 NY2d at 73; accord, Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004], supra [Second Department affirmed determination that defendant vehicle rental company “as a ‘corporation engaged in the business of renting or leasing rental vehicles to be operated upon the public highways,’ ” quoting Vehicle and Traffic Law § 370 (3), must provide primary insurance to permissive users of its vehicles].)

The insurance demanded by Vehicle and Traffic Law § 370 (3) and § 388, in the present case, is supplied by Republic, U-Haul’s sibling company, thereby enabling U-Haul to collect substantial revenues from New York City customers and to maintain the many U-Haul rental facilities that operate in this City. Without the insurance furnished by Republic, its sibling company, U-Haul could take out all the Yellow Pages advertisements it likes, but it legally could not rent a single car in the State of New York. Republic’s counsel does not seem to challenge that fact. It is surreal for Republic to pretend that the World Wide Web does not exist, U-Haul can rent vehicles without insurance, and that the ties between Republic and U-Haul are nebulous.

Every single U-Haul vehicle rented by it in the United States is insured by Republic. Indeed, as stated above, in front of a panel of Justices of the Appellate Division, First Department,{**3 Misc 3d at 934} when there was confusion as to the insurer of the U-Haul vehicle, the attorneys for U-Haul and Republic advised the Court that all U-Haul vehicles are insured by defendant Republic (Matter of Wausau Ins. Co. v Ogochukwu, 295 AD2d 280 [2002], supra).

The entire policy behind the New York Legislature’s scheme for providing no-fault first-party benefits, the prompt payment or speedy disposition of such claims, would crumble if health [*7]care professionals were forced to run from all parts of this state to Westchester County or to travel to Arizona to litigate their right to reimbursement (see discussion of the hypothetical examples posited in the prior opinion, 2003 NY Slip Op 51070[U], *9; see generally, Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], *3 [App Term, 2d Dept, Dec. 24, 2003] [“to hold otherwise would undermine the clear legislative mandate to facilitate the prompt and efficient resolution of first-party no-fault claims”]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 2d Dept, Dec. 24, 2003]; Zlatnick v Government Empls. Ins. Co., 2 Misc 3d 347 [Civ Ct, Queens County 2003] [regarding the general undermining of the policy of the no-fault laws]).

As stated at the outset of this opinion, the tail does not wag the dog, and this court also rejects the alternative argument of Republic’s counsel, on this motion to reargue, that a special exception should be carved for this self-styled “relatively small out of state carrier” (Eberz affirmation ¶ 9).

Republic’s motion to dismiss strikes at the heart of the Court of Appeals ELRAC decision (96 NY2d 58, 72-74 [2001], supra). Defendant Republic collects revenue by insuring the vehicles of its sibling corporation, U-Haul, in the City of New York, but, when an accident occurs, shirks its responsibilities under the no-fault scheme, and, indeed, frustrates and undermines the purpose of the no-fault laws, by trying to making it difficult for a health care provider to collect reimbursement for its services.

When Republic’s insurance makes it possible for U-Haul vehicles to be rented in all five boroughs of the City of New York and to circulate on the City’s highways and streets, and in its traffic, it does not matter whether the policy of insurance was written in Arizona, Alabama, or Alaska or whether Republic’s office in this state is located in Purchase, Plattsburgh, or Parkchester.

Republic has filed numerous similar motions to dismiss for lack of jurisdiction in the courts of inferior jurisdiction. As seen in {**3 Misc 3d at 935}some unreported opinions that preceded this court’s prior opinion, Republic’s arguments have convinced other courts to grant its motion to dismiss (see, e.g., PLP Acupuncture v Republic W. Ins. Co., Nassau Dist Ct, Feb. 25, 2003, Index No. 24863/2002 [no indication provided by plaintiff’s counsel what connection the case had to Nassau County]; Viva Massage Therapy v Republic W. Ins. Co., Civ Ct, Queens County, Feb. 25, 2003, Index No. 84410/2002 [motion to dismiss granted on default]; Ostia Med. v Republic W. Ins. Co., Civ Ct, Queens County, May 20, 2003, Index No. 66847/2002 [lamenting that plaintiff had not presented any evidence and had it done so “this Court may have rendered a different decision”]).

This court notes that, following the reporting of its prior opinion electronically in Westlaw and LEXIS and in print by the New York Law Journal, several courts, citing the decision, agreed with this court’s reasoning and began denying the same motion to dismiss by Republic (see, e.g., Heritage Med. Servs. v Republic W. Ins. Co., NYLJ, Mar. 9, 2004, at 19, col 1 [Civ Ct, Kings County]; Diagnostic Rehab. Med. Serv. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U], supra; West Tremont Med. Diagnostics v Republic W. Ins. Co., Civ Ct, Bronx County, Aug. 29, 2003, Index No. 72381/2002).

In the opinion of the undersigned, adoption of Republic’s arguments would result in the dessication and evisceration of the no-fault scheme. Only the Appellate Term’s forthcoming [*8]review of the issue will permit a dispositive holding to avoid the inconsistent results now being reached.

Republic’s arguments about this court’s citations to Republic’s and U-Haul’s admissions made on the World Wide Web are vacuous. The story goes that Abraham Lincoln once asked a crowd how many legs a sheep would have if we called its tail a leg. When the crowd yelled back, “Five,” Lincoln shot back, answering his own question, “No, four, because calling a tail a leg doesn’t make it one.” Similarly, Republic’s repeated claims of lack of jurisdiction for its insurance of a U-Haul vehicle rented in New York City ought to fall on deaf ears.

Footnotes

Footnote *: Another possible reason why Republic sought renewal, instead of reargument, is that its counsel may have believed that a motion to reargue would be untimely, since the date of its motion to renew is August 28, 2003, well past 30 days following the date of service of the notice of entry on July 10, 2003 (see, CPLR 5513). Plaintiff’s counsel, however, in serving the notice of entry, failed to append a copy of the order bearing the clerk’s stamped date of entry of July 8, 2003, and, in the accompanying notice, incorrectly identified the date of entry as July 7 (which was only the date that the decision and order was signed). The notice of entry that was served upon Republic’s counsel thus was a nullity (see, Baranello v Westchester Sq. Med. Ctr., 282 AD2d 259 [1st Dept 2001]), and this motion to reargue is thus timely (see, CPLR 5513). Even if untimely, a court, under the provident exercise of its discretion, may entertain an untimely motion to reargue (see, e.g., Garcia v Jesuits of Fordham, 6 AD3d 163 [1st Dept 2004]).

Civil Court Of The City Of New York, Queens County

Index No. 81843/02

For Plaintiff: Alden Banniettis, Esq. 2972 Avenue X, Brooklyn, NY

11235

For Defendant: Jacobson & Schwartz, Esqs, 510 Merrick Rd., POB 46,

Rockville Centre, NY 11571

Denis J. Butler, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this motion for summary judgment:

Papers Numbered

Notice of Motion and Affidavits/Affirmations Annexed________1_________

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action to recover No-Fault benefits, plaintiff moves for summary judgment against defendant. Plaintiff submitted two timely and proper NF-3 claim forms on April 19, 2002 which were received by the defendant on April 29, 2002 and May 6, 2002. The plaintiff also submitted timely claim forms on April 24, 2002 and June 5, 2002, which insurer received on May 2, 2002 and June 10, 2002, respectively. Defendant issued denials for each of the aforementioned claims on June 27, 2002 and has failed to make payments on any of the bills.

Plaintiff contends that all of defendant’s denials were untimely except for the denial for the bill received on June 10, 2002. Plaintiff further argues that the denials are insufficient to raise a triable issue of fact since they are improperly based upon what the defendant labels a “Low Impact Study.”

Defendant does not dispute the timeliness of the denials, but argues that the injuries did not arise from a covered accident. Defendant contends that the accident at issue was a “Low Impact” accident and could not have caused the injuries alleged by the assignor. Defendant relies upon a report prepared by a private consultant retained by defendant which concludes that the speed of the assignor’s vehicle was “not sufficient to cause persistent injury to volunteer test [*2]subjects.” Defendant concludes that since the injuries allegedly sustained by the assignor could not have been caused by this accident, plaintiff’s claim is fraudulent and therefore did not arise from a covered accident. Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195. (despite an untimely denial, an insurer is not barred from raising as a defense that the “services rendered to treat the injuries at issue did not arise from a covered accident.”)

It is the holding of this court that the plaintiff’s motion for summary judgment is granted. Defendant submitted inadmissible reports and improperly denied plaintiff’s bills based upon a “Low Impact Study.” The case law is clear that in order to deny a claim on the theory that a particular accident was not a covered event the insurer must show that the accident was a deliberate event or a part of an insurance fraud scheme. As the evidence submitted by the defendant fails to establish that the accident was a deliberate event or part of an insurance fraud scheme the defendant’s claim that the accident was not a covered event is without merit.

The defendant, in its affirmation in opposition, merely relies on an affidavit by its claims adjuster dated January 21, 2004, wherein such adjuster asserts that the claims were timely denied based upon the “Low Impact Study” conducted by FTI/SEA Consulting. The affidavit fails to state whether the adjuster had actual knowledge of the “Low Impact Study”, whether she is an accident reconstruction expert or how she came to the conclusion that the injuries could not be related to the motor vehicle accident at issue. A.B. Medical Services PLL v. Lumbermans Mutual Casualty, N.Y.L.J September 30, 2003. (insurer cannot negate the careful proscriptions for expert proof in Central General Hospital in favor of mere speculation and debate).

Further, it is well established “that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 NY2D 557. The defendant submitted an unsworn to Accident Analysis Report. An unsworn report on which the defendant relied is not in admissible form and as such is not sufficient to defeat a motion for summary judgment. Washington v. City of Yonkers, 293 A.D.2d 741. Therefore, the defendant has failed to submit sufficient proof which would allow this court to determine whether the accident caused the alleged injuries.

Moreover, the basis for each of the insurer’s denials were that the results from a “Low Impact Study” had shown that the injuries alleged in the claim forms were not related to the motor vehicle accident in question and were inconsistent with a collision of that nature. The insurer posits that an accident at this speed could not have caused the alleged injuries and that therefore the claim is fraudulent and not covered.

Defendant relies upon the theory that if a collision was a deliberate event caused in the furtherance of an insurance fraud scheme, it would not be a covered accident. Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 A.D.2d 751; see also Westchester Medical Center v. Travelers Property Cas. Ins. Co., 309 A.D.2d 927. However, the defendant has failed to come forth with evidence that the accident was a deliberate event or a part of an insurance fraud scheme. Rather the defendant erroneously relies upon an inadmissible report which states that the injuries were caused by an accident which was “not sufficient to cause persistent injury to volunteer test subjects.” The report, even if admissible, fails to establish that the accident was a [*3]deliberate event caused in the furtherance of an insurance fraud scheme.

The No-Fault Law requires the carrier to either pay or deny the claim for No-Fault benefits within thirty days from the date the applicant supplies proof of claim. (Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). The bills received prior to June 10, 2002 were denied after thirty days. Without a valid “coverage” defense the court grants the plaintiff summary judgment as to each of those bills . Only the bill received by the insurer on June 10, 2002 was timely denied. As to the bill which was timely denied, the defendant has failed to submit sufficient proof in admissible form which would allow this court to determine whether the accident in question could cause the alleged injuries. An affidavit by a claims adjuster regarding the validity of a “Low Impact Study” and an unsworn report are insufficient to oppose a motion for summary judgment.

Accordingly, plaintiff’s motion for summary judgment is granted. The plaintiff is given leave to enter judgment against the defendant in the sum of $7,562.00 plus statutory attorneys’ fees and interest.

Judge, Civil Court

Decision Date: April 02, 2004

Civil Court Of The City Of New York, Richmond County

Index No. 40049/03

For Plaintiffs: Joseph Sparacio, Esq. 2555 Richmond Avenue Staten

Island, NY 10314

(718) 966-0055

For Defendants: Richard C. Mulle , Esq. Martin, Fallon & Mulle 100

East Carver Street Huntington, NY 11743 (631) 421-1211

PHILIP S. STRANIERE, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this

MOTIONS TO COMPEL.

Papers Numbered

Notices of Motion and Affidavits Annexed……………………………………..1&2

Order to Show Cause and Affidavits Annexed.………………………………

Answering Affidavits……………………………………………………………………

Replying Affidavits………………………………………………………………………

Exhibits………………………………………………………………………………………..

Other……………………………………………………………………………………………

[*2]Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

“The answer my friend is blowin’ in the wind. The answer is blowin’ in the wind.”

We all are familiar with this refrain from Bob Dylan’s 1960’s protest song. Unfortunately it has become the cry of too many litigants in New York City’s Civil Court. Currently before the Court are three motions made by defendant State Farm Mutual Automobile Insurance Company. In each motion the defendants sought to compel the plaintiff, Richmond Pain Management, P.C. as assignee of Kenneth Bevel (40049/03); as assignee of Clifford Whaley(40050/03); and as assignee of Lorna Sterling (40051/03) to provide discovery previously requested and to reimburse the defendant the $45.00 defendant had to

expend in each action to purchase an index number. The discovery issues were resolved by a “so ordered”stipulation in each action. The defendant however insisted on submitting the issue of its entitlement to be reimbursed the $45.00 to the Court for decision.

The Court is left to decide the rather novel ^[FN1] issue of whether or not a defendant who purchases an index number in Civil Court can recover that money either by making a motion or in a judgment issued at the end of the litigation.

The civil action part of the Civil Court, like some other courts of limited jurisdiction, retains a system for commencement of an action that is a relic of days gone by. The civil action part is governed by a “commence by service” statute, Civil Court Act Article 4. Not only is this system in conflict with “commence by filing” as provided in CPLR 304, it is also not in conformity with how in Civil Court a summary proceeding is commenced in the landlord-tenant part or a small claims action is started in that part. To commence a suit in either of these parts requires the litigant to purchase an index number from the clerk of the court. More importantly, when a self-represented litigant wants to commence an action, CCA 401(a) requires the clerk to issue the summons if “the plaintiff appears without an attorney” and collect the appropriate fee.^[FN2]

When the CPLR was amended to cover actions commenced in the Supreme and County Court, § 400 was added to the Civil Court Act to specifically preclude the Civil Court from the commence by filing provisions and preserve the out-dated system of commencement by service. This was done even though the civil jurisdiction of the County Court and Civil Court are practically identical (NY State Constitution Article 6 § 11 and 15). CCA 400 also provides that [*3]“a special proceeding is commenced by service of a notice of petition or order to show cause.” The implication of CCA 400 in regard to special proceedings, which are governed by CPLR Article 4, is that they too are commenced by service. However, that contradicts CCA 401 (c) which requires the notice of petition and petition in a summary proceeding to be issued by the Court. This sentence probably should read “a special proceeding, other than a summary proceeding commenced under CCA 204” since summary proceedings are currently commenced by filing the notice of petition and petition with the clerk (CCA 401 (c)).

This case points out the serious deficiency in retaining the current commencement by service system in the Civil Court. CCA 401(b) requires that any summons issued contain language that directs the defendant to file an answer with the clerk within 20 days if personally delivered to the defendant in the city of New York, and if served by a means other than personal delivery within the city if New York the defendant must file an answer within thirty days of the plaintiff filing proof of service with the clerk (CCA 402). Meanwhile CCA 409 requires the plaintiff to file a copy of the summons with proof of service with the clerk within fourteen days after service is made within the city of New York regardless of how it was served. This procedure is seemingly not that complicated. However, this is when theory and practice collide.

For instance, defendant is served on March 1 and on March 2 within the time set forth in the summons, files an answer as directed by the summons. The answer is received by the clerk who determines that there is no index number for the action since the plaintiff has not filed the summons. If the answer is personally delivered to the clerk and the clerk checks the filings immediately, perhaps the defendant can be told to hold onto the answer and file it later after the plaintiff comes in and files the summons. This of course punishes the diligent defendant and may require multiple trips to the courthouse for the defendant to protect his or her rights. What if the answer was filed by mail or the clerk accepts the in person filing of the answer and only later determines no index number has been purchased? Invariably after the clerks check the filing and learn there is no index number, the answer is held in the clerk’s office and as summonses are filed by the plaintiff, the clerk will often attempt to check and see if an answer has been filed. A number of times a match can be made. The problem of course is when the answer is received prior to the plaintiff purchasing an index number; the plaintiff finally purchases an index number and files the summons and proof of service as required by statute; a court file is created and the clerk cannot subsequently locate the filed answer from among hundreds if not thousands of other filed answers. In these cases, a default judgment may be entered against a defendant who timely filed an answer. The judgment might not be discovered until the defendant tries to obtain credit, purchase a house or buy a car. The Court will then be entertaining a motion to vacate a wrongfully entered default judgment against the defendant and possibly have to lift restraining orders and executions. All this is a waste of judicial and legal resources and imperils the rights of diligent defendants.

The Office of Court Administration has proposed eliminating commencement by filing in the Civil Court, District Courts and City Courts. In support of the change in the statute OCA pointed out: “Aside from the expenditure of time and resources, the current system causes a [*4]financial toll. The clerks’ futile searches for filed summonses are expenditures of time for which there is no revenue stream in return….A further concern is that the summonses are being served but intentionally not filed in an effort to harass or frighten defendants. Requiring that an index number be purchased before the service of papers would generate revenue, conserve clerks’s time, and protect defendants from untoward use of the suit commencement system….”

What further complicates these matters are the tens of thousands of “no-fault” reimbursement cases filed under the Insurance Law presently flooding the court system. The plaintiffs in hundreds of these cases, as in this case, may be the same medical service provider while the defendant is the same carrier. An additional problem is that the plaintiff may be the assignee of benefits from the same patient on more than one claim against the same defendant. So even if the clerk matches the parties based on the names from the caption, the complaint and answer may not coincide as the provider may have delivered service on more than one occasion to a particular insured. Why should the clerk of the court be burdened with matching the correct complaint to the correct answer as if it were some huge game of “Concentration?” Especially when the plaintiff is the party that caused the situation. The court system is becoming the uncompensated servant for some attorneys’ collection practices. This is not in the job description.

LEGAL ISSUES:

A. Is the Current System Constitutional?

As outlined above, CCA 400 excluded the Civil Court from the application of the commencement by filing statute of the CPLR. On their face CCA 400 and CCA 409 appear to be constitutional. However, it is apparent that in the implementation of the Civil Court’s commencement by service rules, due process and equal protection rights of individuals are being violated. In regard to civil actions, the statute permits lawyers to issue and serve summons without first purchasing an index number, while at the same time requiring a self-represented plaintiff to expend that money. The statute creates two classes of litigants potentially seeking the same relief with the criteria being the financial ability to retain an attorney. An individual who can afford to retain counsel can issue a summons and perhaps collect money due and owing merely by serving the process on the defendant, while a person too poor or for any other reason unable to retain counsel, such as the amount being sought not warranting the hiring of a lawyer, cannot use the threat of suit to collect the debt; that person must actually commence the suit and expend $45.00 for the suit. A credit card company, commercial collection agencies or other business that provides a large volume of litigation to an attorney obtains a benefit that an individual self-represented plaintiff does not get from the court system. Likewise, the defendant in the self-represented plaintiff commenced suit is incurring court costs that have to be reimbursed to the plaintiff that a represented person or entity might not have to pay. Considering that landlord-tenant summary proceedings and small claims actions both require the prepaying for an index number to commence a law suit, it can only be concluded that the statute as written and the system and practice it engendered create two classes of litigants in the Civil Court civil [*5]actions: paying and non-paying customers. This is a clear violation of the equal protection clause of the New York State Constitution Article 1 § 11. There is no reasonable or rational basis for such a distinction, especially when there exists a system used in all other parts of the Civil Court and in the Supreme and County Courts which eliminates these differences. This is an example as to why the New York Court system may be “unified” but not “uniform.”

It is also apparent that the current system violates the due process clause of the New York State Constitution, Article 1 § 6. The prevailing arrangement punishes a defendant who complies with the statute, takes steps to protect his or her rights and timely files an answer, while at the same time it may potentially reward a procrastinating plaintiff who does not immediately purchase an index number or who in an even worse case, purchases it after the statutory fourteen day period. The plaintiff who actually files the summons with proof of service after fourteen days must make a nunc pro tunc application for the late filing of the summons and then give notice to the defendant and an additional opportunity to answer. However, even in this scenario, why would the defendant think it necessary to re-file an answer, since the defendant would not necessarily know that the answer previously submitted was not linked by the clerk to the proper summons.

The current system suffers too many constitutional problems to continue in effect. It must be replaced. “Our cases further establish that a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question….(T)he right to a meaningful opportunity to be heard within the limits of practicality, must be protected against denial by particular laws that operate to jeopardize it for particular individuals…. (S)o too a cost requirement, valid on its face, may offend a particular party’s opportunity to be heard…the State owes to each individual that process, which in light of the values of a free society, can be characterized as due” (Boddie v Connecticut, 401 US 371, (1971)

B. Is the Defendant Entitled to Reimbursement?

In order to protect its rights, the defendant in these three actions purchased the index number so it could file an answer or otherwise move to take steps to protect its legal interests. In none of these cases did the plaintiff purchase an index number. In each case defendant waited thirty days after service of the process to file an answer and at that time learned that no index number was purchased. The defendant then expended $45.00 on each case in order to file its answer. CCA 1911 requires that the clerk collect as a court fee $45.00 upon the issuance of a summons (CCA 1911(a)) or upon the filing of a summons with proof of service or upon filing of the first paper in that county in any action (CCA 1911(b)). There does not appear to be any statutory or case law dealing specifically with the issue of whether the defendant can recover the $45.00 when it and not the plaintiff files the first paper. [*6]

CCA 1906 provides as follows: “Costs allowed by Court. The Court may in its discretion impose costs not exceeding fifty dollars in the following cases: (a) Upon granting or denying a motion….” Since defendant was required to make a motion to compel the plaintiff to comply with discovery demands and to pay the filing fee, the Court in its discretion could award the defendant “costs” involved in making the motion. But is a filing fee a legitimate “cost?”

CCA 1908 permits a prevailing party or a party to whom costs are awarded to recover “disbursements.” All fees paid to the clerk are recoverable as a disbursement (CCA 1908(a)). Under this statute, the defendant, if a prevailing party, could recover as a disbursement the filing fee that it paid to the clerk. The question remains, can the defendant collect the filing fee at this stage of the litigation, that is, before there is a final judgment on the merits.

If the plaintiff bought the index number and prevailed in the suit, the plaintiff would recover the expense as a taxable disbursement under the statute. If the defendant prevailed, the issue would be moot since the defendant did not incur the expense, there would be no money to recover. If the defendant purchased the index number, and the defendant prevailed, the defendant would recover the filing fee. If the defendant purchased the index number and the plaintiff prevailed, the plaintiff would not be able to recover the fee since the plaintiff did not expend the money initially. Since the plaintiff was the one who instituted the suit, the plaintiff would be obtaining a benefit because the defendant purchased the index number in the action and in doing so, permitted the plaintiff to continue the case. There is something inherently unfair in requiring the defendant to subsidize the plaintiff’s cause of action out of a necessity to protect the defendant’s rights. The Court could award the defendant the $45.00 by labeling it as a reasonable cost to be awarded for the motion; however, that would not deal with the underlying issue of the plaintiffs using the Civil Court as its collection agency by filing suits and not purchasing index numbers. As a matter of public policy and to prevent plaintiffs from abusing the system, the defendant is entitled to be reimbursed at this stage of the litigation.

CONCLUSION:

Defendant’s motion in each action is granted to the extent that the plaintiff is directed to reimburse defendant the sum of $45.00 in each of these actions. Defendant’s application for sanctions of $100.00 on each cause of action is dismissed. If plaintiff continues this practice in the future, the Court will consider entertaining an application for sanctions. If plaintiff’s counsel is not being compensated sufficiently by his clients, then he either should not take the cases or re-negotiate his compensation schedule with them.

Since a consumer is not involved as a litigant, the Court does not address the issue of whether if it is shown that a plaintiff had a continuous pattern of not filing or late filing summonses, would such a pattern constitute a “deceptive business practice” under General Business Law 349.

The foregoing constitutes the decision and order of the Court.

[*7]Court Attorney to notify both sides of this Decision/Order.

Dated:

PHILIP S. STRANIERE

Judge, Civil Court

ASN by on

Dated: March 23, 2004

Decision Date: March 23, 2004

Footnotes

Footnote 1: Novel is being used in the sense of unique rather than a reference to a tome by Tolstoy.

Footnote 2: It should also be noted that a name change application in Civil Court requires a filing fee of $65.00. This is another proceeding that is primarily commenced by self-represented individuals. Although CPLR Article 11 provides for access to the courts by persons who qualify as “poor persons” this protection is not relevant to the issues of this case involving two classes of applicants to the Civil Court.

Civil Court Of The City Of New York, Kings County

Index No. 40021KCV2003

Baker & Barshay, LLP ( Joaquin J. Lopez, Esq.) for plaintiff.

McDonnell, Adels & Goodstein, P.C.( Joel D. Epstein, Esq.) for defendant.

Manuel J. Mendez, J.

Plaintiff, Advanced Medical Rehabilitation, P.C., brings this action to recover $4298.37 for first party no-fault benefits provided to its assignor David Briggs, pursuant to the No-Fault provision of his insurance policy (see Insurance Law art 51). A plaintiff assignee will be awarded judgment upon establishing a prima facie case. To establish a prima facie case, plaintiff assignee must show there was a policy in effect issued by defendant insurer covering the treated person and motor vehicle collision in which the person was involved, an assignment of policy benefits, presentation of claims to the insurer for medical expenses arising from the collision and defendant insurer’s failure to deny the claims within 30 days. (11 NYCRR §65.15 (g) (6); Westchester County Medical Center v New York Central Mut. Fire Ins. Co., 262 AD2d 553, 555 [2nd Dept]; Neuro Care Center II v Allstate Insurance Co., NYLJ, Jan. 28, 2003, at 19, col 5; AB Medical Services PLLC v Progressive Insurance, 2003 NY Slip Op 50790[U], 2003 NY Misc. Lexis 463; S&M Supply inc., v Geico Insurance, 2003 NY Slip Op 51192[U], 2003 NY Misc. 1067; AB Medical Services PLLC v Highland Insurance Co., NYLJ, May 27, 2003, at 21, col 3 ).

Valid assignments of insurance benefits to plaintiff health care providers authorized by their patients are key to plaintiff’s recovery of those benefits (A.B. Medical Services PLLC v Highland, supra). To be valid, the assignor’s signature on the assignment of benefits must be authenticated (A.B. Medical Services PLLC v Highland, supra; Acevedo v Audubon Management, 280 AD2d 91 (1st Dept 2001); Fields v S&W Realty Assoc., 301 AD2d 625 (2nd Dept 2003); Neuro Care Center II v Allstate Ins. Co., supra).

The mere signature of the person listed as the assignor on an assignment document does not authenticate that signature (Neurocare Center II, supra., citing Freeman v Kirkland, 184 AD2d 331, 332 [1st Dept. 1992]; Fanelli v Lorenzo, 187 AD2d 1004, 1005 [4th Dept 1992]). Authentication of the signatures of plaintiffs’ assignor requires an attestation by a person familiar [*2]with the assignor’s signatures identifying them as such (Acevedo v Audubon Mgt., 280 AD2d 91, 95 (1st Dept 2001); Fields v S&W Realty Assoc., 301 AD2d 625 (2d Dept 2003); Neuro Care Center II, supra).

If a witness does not authenticate the executed assignment, it is inadmissible (Neurocare Center II, supra; citing People v Michallow, 201 AD2d 915 (4th Dept. 1994); People v Boswell, 167 AD2d 928 (4th Dept 1990) Wilson v Bodian, 130 AD2d 221 (2d Dept 1987).

Absent observing the assignor place his signature on the assignment, it is not sufficient that a witness merely recite that he is familiar with the assignor’s signature. (see Prince, Richardson Evidence §§9-103 at 703 [Farrell 11th ed] ). To admit the assignment in evidence, the witness must state, under oath, how it is that he has obtained familiarity with the assignor’s signature.

The assignee must establish that the claim was presented to the insurer (S&M Supply Inc. v Geico Insurance, 2003 NY Slip Op S1192[U]). Proof of mailing of the claim to the insurer may be established by testimony of the assignee’s employee who has personal knowledge that the claim was mailed (S&M Supply Inc., supra). Testimony of an employee regarding the general mailing practices of assignee’s office is insufficient (Hospital for Joint Diseases v Nationwide Mutual Ins. Co., 284 AD2d 374, 726 NYS2d 443).

This case was tried by the Court on February 19, 2004. Plaintiff presented one witness, Ruben Paez, an assistant office manager at Advanced Medical Rehabilitation. Mr. Paez testified to the practices and procedures utilized by plaintiff when a new patient comes into the office. Although it is the regular practice of the office to have the patient fill out an intake form and sign any required documentation at the initial visit, in this particular case, Mr. Paez did not witness Mr. Briggs sign the assignment or any other document and is not familiar with his signature. Furthermore, the assignment is undated and Mr. Paez could not recall the date when this assignment was actually signed.

CPLR 4518(a) codifies the business record exception to the hearsay rule. It sets forth the foundational requirements necessary to overcome a hearsay objection to the admission of certain documents. The proponent of the evidence must establish that the act, transaction, occurrence or event was made in the regular course of business; that it was the regular course of such business to make such act, transaction, occurrence or event and the entry was made at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.

The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business, as a business are inherently highly trustworthy because they are routine reflections of day to day operations and because the “entrant’s obligation” is to have them truthful and accurate for purposes of the conduct of the enterprise (Williams v Alexander, 309 NY 283, 286; People v Kennedy, 68 NY2d 569, 510 NYS2d 853, [1986]).

The Business Record Rule was not intended to permit the receipt in evidence of entries made by third parties not engaged in the business or under any duty to report (Johnson v Lutz, 253 NY 124 [Ct App 1930]). The rule should not be extended so to admit a mere private memorandum, not made in the pursuance of any duty owing by the person making it (Johnson v Lutz, supra at 128; Pector v County of Suffolk, 259 AD2d 605, 686 NYS2d 789 [2nd Dept 1999]).

The assignment of benefits is inadmissible as a business record for a number of reasons. [*3]First, the witness did not see Mr.Briggs sign the assignment and is not familiar with his signature; therefore, he could not properly authenticate the signature. Secondly, the assignment is not dated and the witness could not recall the date it was signed; thus, it could not be said that the assignment was made at the time of the events reflected in it or within a reasonable time thereafter. Finally, the assignment of benefits was made by Mr. Briggs who is not an employee of assignee or a person under a duty to report. Mr. Briggs is merely a third party not engaged in the business and under no duty to report as mandated by CPLR 4518(a). Therefore the assignment is not a business record admissible under the business record exception to the hearsay rule as embodied in CPLR 4518(a).

Mr. Paez testified that the bills for services provided to Mr. Briggs were prepared and mailed by a separate entity. When questioned during direct examination and also while being voir dired on the admissibility of the medical bills, Mr. Paez stated…. “they are not prepared by us, they are prepared for us and mailed.” He has no personal knowledge that the bills were mailed, when they were mailed or to whom. He has no personal knowledge of the general business practice of this billing entity. He is not qualified to testify as to the record keeping of an entity to which he is not related as an employee and about events over which he has no personal knowledge (Standard Textile Company, Inc. v National Equipment Rental, LTD., 80 AD2d 911, 437 NYS2d 398 [2nd dept 1981]; S&M Supply, Inc., supra).

Mr. Paez is not the proper witness to lay a foundation for the admissibility of the billing records. Plaintiff should have called an employee of the billing entity who is familiar with the general business practice of this entity and has personal knowledge that the claim was mailed (Standard Textile Company, Inc. v National Equipment Rental, LTD., supra).

CONCLUSION

The assignment of benefits form is inadmissible. It is not a business record made in the regular course of business by a person with a business duty to report. Furthermore, it was not properly authenticated or dated.

The medical bills are inadmissible because the witness is not qualified to testify as to the record keeping practices of an entity to which he is not related as an employee and about events over which he has no personal knowledge.

Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Plaintiff has failed to prove these essential elements. Plaintiff has failed to make out a prima facie case of its entitlement to recover no-fault first party benefits. Therefore, this action must be and it is hereby dismissed.

This constitutes the decision and judgment of this Court.

Dated: March 16, 2004

[*4]

Manuel J. Mendez

J.C.C.

Decision Date: March 16, 2004

[*1]

Civil Court of the City of New York, Kings County, February 11, 2004

APPEARANCES OF COUNSEL

Baker & Barshay, LLP, Hauppage (Joaquin Lopez of counsel), for plaintiff. Peter C. Merani, New York City (Samuel Kamara of counsel), for defendant.

{**3 Misc 3d at 246} OPINION OF THE COURT

Ellen Gesmer, J.

{**3 Misc 3d at 247}Plaintiff Behavioral Diagnostics brings this action to obtain payment from defendant Allstate for services rendered by plaintiff to three of its patients, Marina Shaulov, Dwayne Dowdell and Maria Arevalo.^[FN*] All three patients are insured by defendant Allstate under New York State No-Fault Insurance Law § 5101 et seq., and all three assigned their insurance benefits to plaintiff. The court conducted a full trial of this matter on January 26, 2004 and makes the following findings.

Facts and Procedural History

Plaintiff’s assignors were all in motor vehicle accidents. They each received medical treatment from plaintiff Behavioral Diagnostics. The parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by the regulations of the Insurance Department (11 NYCRR 65-2.4), to Allstate; that plaintiff was the assignee of the three patients; and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8. For each of the three patients, plaintiff sought payment from defendant for $194.57 for a diagnostic interview; $67.24 for “record evaluation”; $975.10 for seven hours of psychological testing; and $103.31 for “Interpretation/Explanation of Results.”

Allstate paid for the psychiatric interview for each patient, but denied payment of the other services based on its determination that they were not “medically necessary” as provided by 11 NYCRR 65-3.8 (b) (4).

Since the parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by 11 NYCRR 65-2.4, that plaintiff was the assignee of the three patients, and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8, plaintiff met its burden of proving its claim (see Amaze Med. Supply Inc. v [*2]Eagle Ins. Co., 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; Liberty Queens Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002]).

Consequently, the only issue to be determined at trial was whether the services rendered were medically necessary, as defined by Insurance Law § 5102 (a) (1). While there had been some uncertainty in the courts as to whether plaintiff bore the burden of showing medical necessity, or whether it was the defendant’s {**3 Misc 3d at 248}burden to show lack of medical necessity, it is now clear in this judicial district that the burden rests on defendant to prove that the services rendered were not medically necessary (Choicenet Chiropractic P.C. v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists 2003]; A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003]).

In support of its case, defendant presented the testimony of Dr. Michael Rosenfeld, who had conducted a peer review of the records of Ms. Shaulov, and Dr. Yakov Burstein, who had conducted peer reviews of Mr. Dowdell and Ms. Arevalo. Both Dr. Rosenfeld and Dr. Burstein are licensed psychologists with many years of experience in the field, and were qualified by the court to give expert testimony. Both Dr. Rosenfeld and Dr. Burstein testified that the diagnostic interviews were medically necessary. Dr. Burstein did not state any opinion as to the medical necessity for the record evaluation of Ms. Arevalo’s file. Both doctors testified with a reasonable degree of medical certainty that all of the other services rendered by plaintiff to the three patients were not medically necessary.

In rebuttal, plaintiff presented the testimony of Dr. Dimara Maksa, who has worked for plaintiff since June 2003, and became a co-owner of plaintiff in January 2004. The court qualified Dr. Maksa to render expert testimony. Dr. Maksa testified that all of the services rendered were medically necessary.

The Absence of a Definition of “Medical Necessity”

The No-Fault Insurance Law provides no definition for medical necessity. Rather, it states that claimants are entitled to recover for “basic economic loss,” which includes:

“(1) All necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses {**3 Misc 3d at 249}may be incurred as a result of the injury. For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.” (Insurance Law § 5102 [a] [1].)

The regulations, which set out the mandatory provisions for approved policies under the act, provide no additional guidance, and merely repeat the language [*3]of the statute (11 NYCRR 65.12 [e] [2]).

There is no appellate case law as yet on the subject. The increasing litigation on the issue confirms the comment of one court that it is not a “simple” issue (Albatros Med. v Government Empls. Ins. Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). The determination of the issue turns on credibility (General Psychiatric Evaluation & Care v Kemper Ins. Co., 1 Misc 3d 499 [Civ Ct, Queens County 2003]), since courts cannot rely solely on the examining physician (Oceanside Med. Healthcare v Progressive Ins., 2002 NY Slip Op 50188[U] [Civ Ct, Kings County 2002]; cf. Tudor v Metropolitan Life Ins. Co., 143 Misc 2d 180 [Nassau Dist Ct 1989]), but must consider whether the treatment had a “valid medical purpose” and resulted in an “actual medical benefit” (Sunrise Med. Imaging, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40091[U], *4 [Nassau Dist Ct 2001]).

Courts have taken care that their attempts to fashion a definition of “medical necessity” are consistent with the dual (and potentially contradictory) goals of the No-Fault Insurance Law of providing full compensation to motor vehicle accident victims who suffered “serious injury,” while simultaneously containing costs (Oceanside Med. Healthcare, P.C. v Progressive Ins., 2002 NY Slip Op 50188[U] [Civ Ct, Kings County 2002], citing Oberly v Bangs Ambulance, 96 NY2d 295 [2001], and Licari v Elliott, 57 NY2d 230 [1982]). The Oceanside court noted with approval the definition adopted by the New Jersey Supreme Court in Thermographic Diagnostics, Inc. v Allstate Ins. Co. (125 NJ 491, 512, 593 A2d 768, 780 [1991]):

“a necessary medical expense under the Act is one incurred for a treatment, procedure, or service ordered by a qualified physician based on the physician’s objectively reasonable belief that it will further the patient’s diagnosis and treatment. The use of the treatment, procedure, or service must be warranted by the circumstances and its medical value {**3 Misc 3d at 250}must be verified by credible and reliable evidence. That standard, in our view, is consistent with the reparation objectives of the Act in that it would allow reimbursement for innovative medical procedures warranted by the circumstances that have demonstrable medical value but have not yet attained general acceptance by a majority of the relevant medical community.”

That definition was also discussed with approval in Elm Med., P.C. v American Home Assur. Co. (2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]), and Medical Expertise v Trumbull Ins. Co. (196 Misc 2d 389, 395 [Civ Ct, Queens County 2003]). In Medical Expertise (at 395), Judge Siegal used the New Jersey definition to establish the following standard for determining the medical necessity of psychological tests: “could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances.” In Fifth Ave. Pain Control Ctr. v Allstate Ins. Co. (196 Misc 2d 801, 807-808 [Civ Ct, Queens County 2003]), Judge Agate, after considering the dictionary definitions and the text of a bill pending in the Legislature, formulated the following definition of medical necessity:

“treatment or services which are appropriate, suitable, proper and conducive to the end sought by the professional health service in consultation with the patient. It means more [*4]than merely convenient or useful treatment or services, but treatment or services that are reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluating and treating the patient.” (Id. at 807; internal quotation marks omitted.)

Consistent with this, Judge Agate went on to hold that “for treatment or services to be medically necessary, it must be reasonably determined by the health care professional in consultation with the patient, that the treatment or services are consistent with the patient’s condition, circumstances and best interest of the patient with regard to the type of treatment or services rendered, the amount of treatment or services rendered, and the duration of the treatment or services rendered.” (Id. [internal quotation marks omitted].)

Against this background, the court turns to the specific services at issue in this case.{**3 Misc 3d at 251}

Medical Necessity of Psychological Testing

Dr. Rosenfeld testified that, as a general matter, it is not medically necessary to conduct psychological tests at the intake stage unless the psychologist conducting the intake interview could not establish a diagnosis based on the clinical interview alone. In this case, Dr. Rosenfeld stated that the clinical interview of Ms. Shaulov had provided an adequate basis for formulating a diagnosis so it was not medically necessary to perform psychological tests. Dr. Rosenfeld further commented critically that the tests which were administered to Ms. Shaulov were self-reporting tests which essentially duplicated the clinical interview. He explained that, in those circumstances where a diagnosis could not be formulated based on the clinical interview alone, it would be most appropriate to perform psychological tests which were complementary to the interview, such as projective tests, rather than self-reporting tests.

Dr. Burstein testified similarly that it is generally not medically necessary to perform psychological tests when intake interviews are conducted, but that it may be appropriate to do so under certain circumstances. However, he testified that it was not medically necessary to perform psychological testing of either Mr. Dowdell or Ms. Arevalo because their mental status exams and intake interviews provided an adequate basis for planning their treatment.

Dr. Maksa, who became licensed as a psychologist in New York State in December 2003, has had no experience in clinical practice. She testified that she “felt” that it was necessary to conduct psychological testing for every patient. She based this on a study which she claimed showed that psychological testing is valid and that clinical interviews sometimes lead to erroneous diagnoses. She did not state any of her opinions with a reasonable degree of psychological certainty. Moreover, she did not cite any basis for her claim that it was necessary to perform psychological testing in every case in order to formulate a treatment plan, regardless of the content of the intake interview.

Essentially, plaintiff took the position that the standard of care requires that psychiatric testing be performed on every patient at the time of intake, regardless of the particular circumstances presented by the patient. In the context of the psychological tests at issue in this case, this court holds that psychological tests are medically necessary if either (1) they are within the standard of care for good and accepted medical practice for all patients in that circumstance, or (2) the treating physician {**3 Misc 3d at 252}made a reasoned and reasonable judgment, based on the particular [*5]circumstances of the patient, that the tests will assist the physician in formulating an accurate diagnosis and an appropriate treatment plan for the patient.

In order to apply this standard to these facts, the court must first assess the credibility of the doctors. The testimony of Dr. Rosenfeld and Dr. Burstein was credible, relevant and probative. Dr. Maksa, as the co-owner of the plaintiff, has an interest in the outcome of the action. In evaluating her testimony, I also considered that she has no clinical experience, and had been licensed for only one month at the time of trial. Accordingly, I do not credit her testimony that the standard of care required that psychological testing be performed on every patient at the time of intake. Moreover, Dr. Maksa did not successfully rebut the testimony of Dr. Rosenfeld and Dr. Burstein that the intake interviews of the three patients provided an ample basis for the formulation of a diagnosis and the establishment of a treatment plan. Indeed, Dr. Maksa demonstrated little familiarity with the records of the specific patients. She did not testify that the intake interviews created any uncertainty as to the diagnosis of the patients, nor did she testify that any of the psychological tests which were administered provided the treating doctors with any new information which affected their diagnoses or treatment plans for the patients. Moreover, while she testified that the Beck’s Anxiety Test may bring out different information than that elicited in a clinical exam, the plaintiff’s own claim forms indicate that the Beck’s Anxiety Scale was not administered to the patients in this case. Accordingly, the court holds that the psychological tests administered by the plaintiff were not medically necessary.

Medical Necessity of Record Review

Dr. Rosenfeld testified that since a psychologist should review records as an integral part of the diagnostic interview, it was not appropriate to bill for record evaluation as a separate item for Ms. Shaulov. Dr. Burstein testified similarly, with respect to Mr. Dowdell, that it was not necessary to examine medical records because the file did not list any medical records. Dr. Burstein did not testify as to the medical necessity of reviewing the medical records of Ms. Arevalo. Dr. Maksa did not rebut defendant’s showing that the record evaluations for Ms. Shaulov and Mr. Dowdell were not medically necessary. Indeed, when questioned about it, she responded, “What records?” Accordingly, the court finds that the record reviews were not medically necessary.{**3 Misc 3d at 253}

Medical Necessity of Explanation of Results

With regard to the billing for “Interpretation/Explanation of Results,” Dr. Rosenfeld testified that, ordinarily, psychologists will advise the patient of any findings as part of the initial consultation. Therefore, he testified that it would only be appropriate to bill separately for explaining results if the psychologist consulted with other family members, which would be appropriate, for example, if the patient were a minor. Dr. Rosenfeld noted that there was no documentation of any meetings with other family members. Similarly, Dr. Burstein interpreted the billing for “Interpretation/Explanation of Results” to mean that there had been a consultation with the patient’s family, but he noted that there was no entry in the files of either Mr. Dowdell or Ms. Arevalo that such a meeting had occurred. He also stated that family consultations are appropriate where the family’s cooperation with the treatment is essential, but the treatment plans in these cases did not require participation by the patients’ families. [*6]

In response, Dr. Maksa claimed that the billing for “Interpretation/Explanation of Results” reflected a charge for sending a letter to the patients regarding the results of the psychological tests. However, she did not introduce the alleged letters. Accordingly, I find that the “Interpretation/Explanation of Results” was not medically necessary.

Conclusion

Because defendant failed to proffer any testimony that the record evaluation of the file of Ms. Arevalo was not medically necessary, the court must find that it was medically necessary. The court holds that the remainder of the services billed by plaintiff were not medically necessary. Therefore, judgment should be entered in favor of the plaintiff in the amount of $67.24, together with statutory interest and attorneys’ fees, pursuant to 11 NYCRR 65.15 (h) and (i) and 65.17 (b) (6) (iii) and (v).

Footnotes

Footnote *: In its complaint, plaintiff sought payments on behalf of five of its patients, but stipulated at trial that it had settled its claims as to assignors La’lsha Hillian and Nino Palagashvili.

[*1]

Civil Court of the City of New York, Queens County, January 16, 2004

APPEARANCES OF COUNSEL

Israel & Israel, Great Neck, for plaintiff. Teresa Spina, Woodbury, for defendant.

{**2 Misc 3d at 907} OPINION OF THE COURT

Augustus C. Agate, J.

Plaintiff All Health Medical Care, P.C. brought suit to recover compensation under the No-Fault Law for medical services it provided to its assignor Eliyahu Malaev, an insured of defendant Government Employees Insurance Company. A trial was held {**2 Misc 3d at 908}before the court on October 31, 2003 and December 16, 2003. Plaintiff argued that it presented a timely and proper notice of claim which defendant failed to pay or deny. Defendant argued that it had no duty to pay or deny plaintiff’s claim because plaintiff failed to comply with defendant’s verification requests. For the foregoing reasons, the court finds in favor of plaintiff.

The facts adduced at trial were largely undisputed. Plaintiff submitted evidence of a prima facie case through defendant’s insurance adjuster, who admitted receipt of plaintiff’s claim on May 23, 2001. Defendant then issued a verification request on May 30, 2001 asking for specific information regarding the services provided. When plaintiff failed to respond to its initial verification request, defendant submitted a follow-up request for verification on June 29, 2001. On July 30, 2001, defendant sent a letter to plaintiff “closing” the matter, stating plaintiff failed to respond to defendant’s verification requests. However, on September 29, 2001, defendant received a response from plaintiff, including plaintiff’s sign-in sheets and acupuncture points. Defendant’s insurance adjuster testified that she found this response to be insufficient, as it did not provide plaintiff’s office notes, doctor’s re-exam narrative or information regarding acupuncture needles. Therefore, she inserted plaintiff’s response in the relevant file and took no further action. Upon receiving no denial or payment from defendant, plaintiff commenced this action.

The sole issue at trial was whether defendant had any duty to act after receiving plaintiff’s response to defendant’s verification requests. Defendant contends that it did not have to pay or deny plaintiff’s claim because plaintiff failed to comply with its timely verification requests. Defendant [*2]argues that it requested specific information regarding the acupuncture services plaintiff performed and that plaintiff’s response was late and insufficient. As plaintiff did not sufficiently comply with defendant’s verification request, defendant’s time to pay or deny plaintiff’s claim is not overdue and plaintiff is not entitled to compensation.

Plaintiff contends that defendant must pay its claim due to defendant’s failure to act after receiving plaintiff’s response. Plaintiff argues that it did provide a sufficient response to defendant’s verification request, and that it has no time frame under the no-fault regulations upon which to submit its response. Plaintiff further argues that while defendant did not have to issue a denial while the verification request was pending,{**2 Misc 3d at 909} once plaintiff submitted a response, defendant had a duty to either pay, deny or request further verification. Since defendant failed to act, it is precluded from presenting any defenses to plaintiff’s claim.

The court holds that defendant was derelict in failing to act upon receipt of plaintiff’s response to defendant’s verification request, and therefore plaintiff is entitled to payment. As long as plaintiff’s documentation is arguably responsive to defendant’s verification request, defendant must act within 30 days of receipt of plaintiff’s response, or will be precluded from presenting any noncoverage affirmative defenses. While the law is clear that defendant’s time to pay or deny is tolled pending receipt of some form of verification, once it has received verification, its time is no longer tolled and it has a duty to act. There is nothing in the no-fault regulations or case law that allows defendant to remain silent in the face of plaintiff’s response to its verification request. Defendant’s position defies the spirit and purpose of the No-Fault Law in promoting prompt resolution of matters. It is also inconsistent with the purpose behind verification requests in allowing defendant to investigate a claim and plaintiff the opportunity to fix any inadequacies in its claim. Further, since the no-fault regulations state that defendant should not issue a denial while a verification request is pending, defendant’s silence served to unfairly prejudice plaintiff by allowing the matter to remain in limbo because defendant found plaintiff’s good faith response insufficient. Defendant had numerous choices it could have made after receiving plaintiff’s response that would have preserved its right to challenge plaintiff’s claim. However, as defendant did nothing, its inaction constitutes a waiver of its defenses.

Under the no-fault regulations, an insurance company has 30 days from the date of receipt to either pay or deny a claim. (11 NYCRR 65.15 [g].) This time may be extended if the insurance company sends a verification request to the claimant within 10 days from the date of receipt of the claim. (11 NYCRR 65.15 [d] [1].) If the claimant does not respond to the insurance company’s request, the insurance company must send a follow-up request for verification to the claimant within 10 days of the claimant’s failure to respond. (11 NYCRR 65.15 [e] [2].) During this period, the insurance company’s time to pay or deny is tolled pending receipt of the requested information. Further, the insurance company shall not issue a denial until all requested verification is received. (11 NYCRR 65.15 [g] [1] [I].) Once the verification is {**2 Misc 3d at 910}received, then the insurance company has 30 days to pay or deny the claim. Failure to pay or deny a claim will result in preclusion of defendant’s affirmative defenses at trial. (See Presbyterian Hosp. v Maryland, 90 NY2d 274 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999].)

However, the regulations are silent as to what, if anything, the insurance company must do if it receives insufficient verification. The case law is also devoid of any obligation the insurance company has upon receipt of information it deems insufficient. Based upon the purpose of the No-[*3]Fault Law and controlling case law, though, it seems clear that the insurance company must affirmatively act once it receives a response to its verification requests.

The purpose of the no-fault statute is to ensure prompt payment of claims by accident victims. (Presbyterian v Maryland, 90 NY2d at 284; Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v New York City Tr. Auth., 151 AD2d 745 [2d Dept 1989].) In ensuring that legitimate accident victims receive swift compensation, the regulations are strictly construed and insurance companies have strict guidelines upon which they can act. (See Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 431 [2d Dept 1996], lv denied 90 NY2d 802 [1997].) An important aspect of that is allowing insurance companies to conduct investigations in order to determine the veracity and propriety of submitted claims. This can be furthered by requests for verification, which provide insurance companies with the opportunity to investigate and pay legitimate claims expeditiously. However, so as not to undermine the goals of prompt payment, insurance companies must issue these verification requests in accordance with the strict time requirements of the no-fault regulations. Further, to allow claimants the opportunity to rectify any deficiencies in their claims, insurance companies shall not issue denials while verification requests are pending. (See Boro Med. & Psych Treatment Servs., P.C. v Country Wide Ins. Co., 2002 NY Slip Op 50538[U] [App Term, 2d & 11th Jud Dists 2002].) This rule prevents prejudice to claimants, who otherwise might have legitimate claims denied for minor defects, and ensures insurance companies receive all relevant information necessary to pay or deny a claim.

As it is incumbent upon plaintiff to comply with all proper verification requests made by defendant in order to receive payment, it is equally incumbent upon defendant to expedite the processing of the claim. There is no provision of the no-fault regulations {**2 Misc 3d at 911}or case law that allows an insurance company to remain silent in the face of a legitimate, albeit insufficient, verification response. It is inconsistent with the goals of the No-Fault Law in encouraging swift payment of claims to allow an insurance company to ignore a response to its verification request merely because it believes the response to be inadequate. In Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553 [2d Dept 1999]), the Appellate Division, Second Department, admonished a plaintiff who failed to respond to a defendant’s verification request because it deemed the request to be “unintelligible.” The Court found that whether or not the request was confusing, it was clearly a verification request that plaintiff could not ignore without placing itself in peril. (See id. at 555.)

The present scenario is analogous to the facts of Westchester County Med., in that defendant did nothing because it believed plaintiff’s response to be incomplete. Based upon the Court’s decision, neither party may ignore communications from the other without risking its chance to prevail in the matter. (See id.) In this case, regardless of whether plaintiff fully responded to defendant’s claim, it was clear that the information plaintiff provided was in response to defendant’s request, and therefore defendant could not sit idly by and ignore it. By doing so, defendant placed itself in jeopardy by waiving its defenses to plaintiff’s claim. (See Presbyterian v Maryland, 90 NY2d at 280; Dermatossian, 67 NY2d at 225.)

Allowing defendant to do nothing in the face of a response to its verification request is overly prejudicial to plaintiff. If defendant cannot issue a denial because its verification request is outstanding, and defendant does not have to act upon receiving information from plaintiff, then defendant could allow a claim to be delayed indefinitely, while plaintiff believes it properly [*4]responded to defendant’s request. (See Atlantis Med., P.C. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40043[U] [Nassau Dist Ct 2002].) By allowing defendant to do nothing, the court would be assisting defendant in thwarting the very purpose of the No-Fault Law in ensuring swift resolution of claims. That purpose is clearly undermined by defendant’s failure to act on an otherwise legitimate claim. (See Metro Med. Diagnostics v Lumbermens Ins. Co., 189 Misc 2d 597, 598 [App Term 2001].) Further, it is overly prejudicial to claimants, who can only bring actions against insurance companies once there has been a determination that the claim is overdue. (See Westchester Med. Ctr. {**2 Misc 3d at 912}v Travelers Prop. & Cas. Ins. Co., 2001 NY Slip Op 50082[U] [Sup Ct, Nassau County 2001].) By allowing defendant to remain silent and not inform plaintiff of its reasons for failing to pay or deny a claim, the claim would be delayed indefinitely and no determination could ever be made if the claim was overdue. This might prevent plaintiff from commencing an action against defendant as premature, leaving the matter in limbo without any resolution. (See id.)

It is also unreasonable that defendant be rewarded for remaining silent and not having to act upon the receipt of information that plaintiff submitted in good faith in response to defendant’s request. It is important to note that in the cases where the courts have found the defendant’s time to pay or deny was tolled, it was because the plaintiff failed to respond in any manner to the defendant’s verification requests. (See New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]; Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].) In that circumstance, a plaintiff remaining silent and failing to act in the face of a proper verification request would be aware of the reason its claim had not been paid and a defendant would not need to take any further action. In the present matter, however, plaintiff attempted in good faith to respond to defendant’s verification request. While plaintiff’s response may have been months after receipt of the verification request, that delay only prejudiced plaintiff, who prolonged its time to be compensated for its claim. Defendant was not prejudiced by plaintiff’s failure to submit prompt verification responses, since defendant’s time was tolled during the period its request remained outstanding. (See id.) Therefore, it is unreasonable to allow defendant to ignore information plaintiff submitted in good faith without informing plaintiff of its deficiencies and allowing plaintiff an opportunity to submit the proper information. Defendant had a number of options that it could have pursued once it received plaintiff’s response rather than remaining silent. While an insurance company may not issue a denial of claim while its verification request remains outstanding, once it receives information from a claimant in response to its request, the ball is now in the insurance company’s court to act on the response. That action could be to pay the claim, deny the claim, or request further verification if it finds the provided response insufficient. The verification, however, does not remain outstanding simply because defendant only received some of the material {**2 Misc 3d at 913}it requested. Rather, an insufficient response requires action by the insurance company to either deny the claim for failure to provide all the requested information or, more appropriately in light of the goals of the No-Fault Law, to send a follow-up verification request, acknowledging the material received and further requesting the omitted material. (See Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].)

Defendant claimed that the information provided by plaintiff was incomplete and was insufficient to comply with defendant’s request. Rather than remaining silent, defendant could have requested further verification, submitted the information supplied for a peer review, or issued a [*5]denial based upon plaintiff’s failure to comply with verification requests.

Defendant could have issued a further request for verification, based upon the insufficiency of plaintiff’s response. It could have informed plaintiff that it still had not provided certain medical records defendant requested. It also could have asked for further clarification of the information plaintiff submitted which defendant’s insurance adjuster found incomplete. By submitting the additional verification request, defendant would have preserved its defenses and tolled its time to pay or deny plaintiff’s claim while the request remained outstanding. (See New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]; Westchester County Med. v New York Cent. Mut., 262 AD2d at 554; Boro Med., 2002 NY Slip Op 50538[U].)

Defendant could have presented plaintiff’s claim, including the response to its verification request, for a peer review. Since defendant’s insurance adjuster did not believe that the acupuncture report submitted by plaintiff was sufficient to comply with its request, defendant could have submitted the materials to a medical expert for review. That expert, with presumably more experience in the field of acupuncture than the insurance adjuster, could have informed defendant whether the information provided was responsive to defendant’s request, and made a determination whether the claim should be paid, denied, or if further verification was necessary.

Defendant also could have issued a denial, based upon plaintiff’s failure to comply with defendant’s verification requests. While the regulations prevent defendant from issuing a denial while a verification request remains outstanding, its request was no longer outstanding once it received plaintiff’s response.{**2 Misc 3d at 914} Since it is defendant’s position that plaintiff had numerous opportunities to comply with defendant’s verification request and failed to do so, defendant could have issued a timely denial for plaintiff’s failure to comply with verification requests without violating the no-fault regulations. Insurance companies often issue denials for other types of failure to comply with verification requests, such as when plaintiff assignors fail to appear at independent medical examinations or examinations under oath. (See Urban Med. Diagnostics, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40655[U] [App Term 2001]; Millennium Med. Diagnostics, P.C. v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term 2001].)

As defendant took no steps to preserve its defenses to plaintiff’s claim, this court finds that defendant failed to comply with the No-Fault Law by failing to either pay or deny the claim within 30 days from the date of receipt of plaintiff’s response. Accordingly, judgment is awarded to plaintiff in the amount set forth in the complaint with statutory interest and fees.

[*1]

Civil Court of the City of New York, Queens County, December 23, 2003

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Marina O’Leary of counsel), for defendant. Glinkenhouse, Floumanhaft & Queen, Cedarhurst (Philip S. Floumanhaft of counsel), for plaintiff.

{**3 Misc 3d at 181} OPINION OF THE COURT

Charles J. Markey, J.

The legal issue of first impression raised by this case is whether a plaintiff-assignee medical equipment supplier can recover no-fault first-party benefits where the prescription for such supplies was written by a chiropractor, and not a physician.{**3 Misc 3d at 182}

On May 16, 1999, Velez was injured in an automobile accident.^[FN1] The next day, Velez consulted with Kenneth Pieratti, Doctor of Chiropractic, of Monument Chiropractic, P.C. Dr. Pieratti prescribed a thermophore (heat treatment to alleviate pain and spasms), a lumbar support (to alleviate pain and prevent compression on nerve roots), a cervical pillow (for proper positioning), a massager (for mechanical massage), a transcutaneous electro-nerve stimulator (TENS) unit (to prevent the transmission of pain nerve impulses), ordered with four leads for larger area stimulation, conductive garment (needed for TENS delivery for larger area stimulation), solid seat insert (for better positioning of the lumbar area), and an ice cap or collar (to alleviate swelling). The chiropractor completed a[*2]“Physician Statement of Medical Necessity” and signed a separate “Letter of Medical Necessity.”

Defendant GEICO General Insurance Company moves for summary judgment to dismiss the complaint, arguing that plaintiff-assignee ABC Medical Management, Inc. cannot maintain this action to recover no-fault first-party benefits for various items of equipment it furnished to its assignor Narmy Velez, since the prescription for such supplies was written by a chiropractor, and not a physician.

First, as an initial matter, although defense counsel states that she has attached copies of the pleadings, a review of the pertinent exhibit shows that only the answer is attached. CPLR 3212 (b) states that a copy of the pleadings must be attached as a prerequisite to a proper summary judgment motion. The cases in each department of the Appellate Division state that the failure to attach all the pleadings is sufficient grounds for denying the summary judgment motion, permitting leave to renew it (see, Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; Gallagher v TDS Telecom, 280 AD2d 991 [4th Dept 2001]; A & L Scientific Corp. v Latmore, 265 AD2d 355 [2d Dept 1999]; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]; accord Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 [1st Dept 2000]).

Although the foregoing authorities would be sufficient to deny GEICO’s motion, this court would be obliged to grant leave to renew {**3 Misc 3d at 183}which would only further congest the huge daily Special Term calendars, clogged by motions involving no-fault first-party benefits (see discussion in Zlatnick v GEICO, 2 Misc 3d 347 [Civ Ct, Queens County 2003]; Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352 [Civ Ct, Queens County 2003]). Rather than burden a colleague judge, for the sake of judicial economy, the court will address the heart of the defendant’s motion.

The substance of GEICO’s summary judgment motion is the defense contention that Education Law § 6551 prohibits a chiropractor from prescribing the aforementioned medical supplies and equipment. Education Law § 6551 (3), in pertinent part, states: “A license to practice chiropractic shall not permit the holder thereof . . . to prescribe, administer, dispense or use in his practice drugs or medicines . . . or to utilize electrical devices except those devices approved by the board as being appropriate to the practice of chiropractic.”

First, for purposes of this motion, the court will assume arguendo that section 6551 can be used by insurers to defeat recovery in a no-fault case—although the legal issue is not entirely free of doubt, has not been raised by counsel, and is not decided herein (see, State Farm Mut. Auto. Ins. Co. v Mallela, 2002 WL 31946762, *4, 2002 US Dist LEXIS 25187, *16-18 [ED NY 2002, Sifton, J.] [rejecting insurer’s view that a provision of New York’s Business Corporation Law intended to create a right to deny payment of no-fault benefit fees]; Matter of Pugliese v Hamburg, 223 AD2d 383 [1st Dept 1996]).

In King’s Med. Supply v Travelers Prop. Cas. Corp. (194 Misc 2d 667 [Civ Ct, Kings County 2003]), a thoughtful and seminal opinion discussing the prima facie burden of a medical supplier seeking to recover no-fault first-party benefits, the equipment at [*3]issue was virtually identical to that litigated herein. In King’s Med., the insurer simply contested the cost of a cervical pillow, lumbosacral support, thermophore, lumbar cushion, a 4-lead TENS, a cold pack, whirlpool, TENS unit, and a TENS belt (id. at 667-670). The court there observed: “[T]here is nothing unique about this equipment” (id. at 672).

This court’s independent legal research discloses that GEICO’s argument has been advanced by insurers and rejected, in principal part, by courts of other jurisdictions. In Haezebrouck v State Farm Mut. Auto. Ins. Co. (216 Ga App 809, 455 SE2d 842 [1995]), the appellate court reversed, in part, the lower court and held that a chiropractor could properly prescribe a TENS unit, {**3 Misc 3d at 184}a Lossing back and neck traction unit, a cervical collar, a cervical pillow, and knee support (216 Ga App at 810, 455 SE2d at 844). The court there noted that a statutory change permitted chiropractors to utilize hot and cold packs (id.; see also, SAIF Corp. v Ross, 191 Or App 212, 216, 82 P3d 1035, 1036 [2003] [approving chiropractor’s use of modalities of ice and warm compress]).

In Hofmann v Auto Club Ins. Assn. (211 Mich App 55, 535 NW2d 529 [1995], lv denied 452 Mich 870, 552 NW2d 170 [1996], reconsideration denied 452 Mich 870, 554 NW2d 313 [1996]), the court held that chiropractors were authorized to utilize cervical collars (to support and immobilize the spine), cervical pillows (to rehabilitate ligaments and musculature of the cervical spine), lumbar belts (to relieve the strain on the lumbar muscles and spine), and lumbar supports (to restore the normal curvature of the lumbar spine) (211 Mich App at 76-79, 535 NW2d at 541-542). The court in Hofmann, however, held that heat and cold were not included within the scope of chiropractic practice.

Cases in New York suggest that chiropractors may utilize thermophore and heat or cold therapy (see, Introna v Allstate Ins. Co., 850 F Supp 161, 165 [ED NY 1993] [“application of hot/cold packs . . . are neither ‘unusual’ nor ‘unique’ chiropractic services”]; see, e.g., Jimenez v Supermarket Serv. Corp., 2002 WL 662135, 2002 US Dist LEXIS 7029 [SD NY 2002]; Stanton v Hexam Gardens Constr. Co., 144 AD2d 132, 133 [3d Dept 1988]; see also, Everett v State Farm Indem. Co., 358 NJ Super 400, 402, 818 A2d 372, 373 [2002] [per curiam] [chiropractor may properly prescribe and recover “for a thermophore electric pad, commonly referred to as a heating pad, to relieve” strains and sprains], affd substantially on op below 175 NJ 567, 818 A2d 319 [2003] [per curiam] [5-2 decision]; see generally, King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d at 668, 672 [although not stating who prescribed the thermophore and other supplies, such equipment was not unique]).

This court holds that a chiropractor may prescribe TENS units, thermophore devices, cervical collars, cervical pillows, lumbar supports, massagers, ice packs, and similar supplies and equipment and that they do not constitute “drugs or medicines” within the meaning of the Education Law.

Further buttressing this court’s conclusion, although not cited by the parties, is the language of 11 NYCRR part 68, Appendix 17-C, part E (b) (1), stating: “For medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician{**3 Misc 3d at 185} or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.”

First, the above section provides essentially a fee schedule for equipment given by a physician or a medical equipment supplier. The plaintiff here, ABC, is a medical equipment supplier, and it provided the supplies to its assignor Velez. Dr. Pieratti, the chiropractor, did not furnish the supplies, and it is not the chiropractor who is seeking recovery for the supplies. Nothing in the foregoing regulation prohibits a chiropractor from prescribing the aforementioned supplies, to be dispensed by either a physician or a medical equipment supplier.

More important, the above-quoted provision of part E specifically lists “TENS units [and] soft cervical collars” as typical examples, denoted by the “e.g.” reference, of medical equipment and supplies.

This court has examined the cases cited by GEICO, and other cases, prohibiting chiropractors from performing electrotherapy (e.g., State v Wilson, 11 Wash App 916, 917, 528 P2d 279, 280 [1974], review denied 84 Wash 2d 1015, 528 P2d 279 [1974]; State v Boston, 226 Iowa 429, 278 NW 291 [1938]). These cases on electrotherapy are inapposite to the prescription of the unremarkable medical equipment prescribed herein. This court, at any rate, also notes that, under the terms of Education Law § 6551 (3), quoted above, New York permits chiropractors to utilize certain electrical devices that may be approved by the State Board for Chiropractors, and the 4-lead TENS unit at issue here is permissible.

The Insurance Law regulations specifically incorporate the fee schedules of the Workers’ Compensation Law (11 NYCRR 65.15 [o] [1]). The court has also reviewed, although not cited by either party, the Official New York Workers’ Compensation Chiropractic Fee Schedule (fee schedule), effective April 1, 2000 (see, 12 NYCRR 348.2 [a] [that provision of the Labor Law regulations specifically incorporates by reference the fee schedule]; 12 NYCRR 348.1, 348.2). The fee schedule specifically permits New York chiropractors to bill for electromyographic recordings, needle electromyography (EMG) tests, nerve conduction, and a host of other services.^[FN2]

Pertaining to medical equipment and supplies, the fee schedule, in its “General Ground Rules,” states:{**3 Misc 3d at 186}

“3. materials supplied by a chiropractor

“Supplies and materials provided by the chiropractor over and above those usually included with the office visit or other services rendered may be charged for separately. List drugs, trays, supplies [*4]and materials provided. Payment shall not exceed the invoice cost of the item(s), applicable taxes and any shipping and handling costs associated with delivery from the supplier of the item to the chiropractor’s office. There should be no additional ‘handling’ costs added to the total cost of the item. Bill using procedure code 99070.”

Since the fee schedule does not permit chiropractors to bill for a medical supply beyond the invoice cost, chiropractors apparently have little motivation to provide directly to the patient the needed equipment. Instead, the simple act of writing a prescription for the device by the chiropractor is more time-efficient for the chiropractor and more profitable for a medical supplier, under the aforementioned Insurance Law regulations that permit a charge of “150 percent of the documented cost of the equipment to the provider” (11 NYCRR part 68, Appendix 17-C, part E [b] [1]).

In moving for summary judgment, GEICO counsel used the following caption, which appeared in boldface type and underlined in its motion papers: “plaintiff has failed to prove medical need.” Despite the caption, suggesting that a discussion of its medical necessity defense would follow, GEICO did not develop the defense of medical necessity, did not include the peer review report cited in its answer, and restricted its argument to Dr. Pieratti’s alleged violation of Education Law § 6551 (3).

The cases are clear that in moving for summary judgment on the grounds of medical necessity, the burden is on the insurer to make a prima facie case by including the peer review report. Failure {**3 Misc 3d at 187}to include it warrants denial of the summary judgment motion (see, S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d Dept 2003] [peer review report would have been proper vehicle to assert and maintain defense of lack of medical necessity]; L.I. First Aid Med. Supply v Progressive Cas. Ins. Co., 196 Misc 2d 258 [Civ Ct, Queens County 2003]; S & M Supply v New York Cent. Mut. Fire Ins. Co., 193 Misc 2d 282, 284 [Civ Ct, Kings County 2002]). In the present case, it was plaintiff’s counsel, in opposition to the motion, who produced the peer review report. This court, accordingly, will discuss the alleged defense.

Louis Filardi, also a doctor of chiropractic and author of the peer review report, challenges Dr. Pieratti for prescribing all of the aforementioned medical equipment and supplies only one day after the accident. Citing Clinical Practice Guidelines No.14, published by the United States Department of Health and Human Services, Dr. Filardi states that 80%-90% of all individuals who complain of soft tissue injury have a resolution of their complaints in one month of the accident. He, therefore, expresses his astonishment for the necessity of prescribing “all of these durable medical goods” within 24 hours after the accident.

In the present case, the prescription, regardless of when it was written, may have been justified in light of the patient’s overall condition, not clearly disclosed on this record. The trier of fact ought to determine these contested issues. Accordingly, the defendant’s motion for summary judgment is, in all respects, denied.

Footnotes

Footnote 1: The peer review report submitted by GEICO maintains that the accident occurred on May 16, 1999. However, twice in Dr. Pieratti’s “Letter of Medical Necessity” the date of the accident is said to be April 16, 1999. Upon request by this court for confirmation, plaintiff’s counsel sent a fax disclosing that the accident was, indeed, on May 16, 1999.

Footnote 2: Under New York law, chiropractors may recover no-fault first-party benefits for conducting EMGs (see, Introna v Allstate Ins. Co., 890 F Supp 161, 165 [ED NY 1995]; Stephens v Allstate Ins. Co., 185 AD2d 338 [2d Dept 1992]; Studin v Allstate Ins. Co., 152 Misc 2d 221, 223-224 [Dist Ct, Suffolk County 1991] [chiropractors can recover for performing EMGs, citing Education Law § 6551 (3) and 8 NYCRR 73.3]; 12 Couch on Insurance 3d § 171:68 [1998] [chiropractor entitled to compensation for conducting surface EMGs]; see also, Posillico v Freeman, NYLJ, June 18, 1996, at 33, col 6 [Yonkers City Ct, Westchester County] [insurer did not contest chiropractor’s claim for electrical stimulation]; but cf. Downey v Barnhart, 294 F Supp 2d 495, 498, n 3 [SD NY 2003] [chiropractor was not an acceptable source for providing a medical interpretation of the EMG]; Machac v Anderson, 261 AD2d 811, 813 [3d Dept 1999] [chiropractor not licensed to interpret X rays]).