Index No. CV-701018-20/RI

Plaintiff’s Counsel
Joseph Sparacio Attorney At Law PLLC
292 Nelson Avenue
Staten Island, NY 10308
(718) 966-0055

Defendant’s Counsel
Law Offices of Tina Newson-Lee
PO Box 2904
Hartford, CT 06104
(917) 778-6500

MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”).

Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” [*2](“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary.

On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law § 5102[a][1].

Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor.

The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law § 5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties.

Discussion

Under Insurance Law § 5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law § 5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital … [and] surgical … services’ (id. § 5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.'” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d [*3]978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])).

The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor.

The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary.

Accordingly, it is hereby

ORDERED that judgment is rendered in favor of Defendant; and it is

ORDERED that the matter is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 25, 2022
_____________________________
Staten Island, New York
Hon. Brendan T. Lantry
Judge of the Civil Court

Index No. CV-750591-18/KI

Attorney for Plaintiff:
Zachary Whiting, Esq.
Law Office of Zara Javakov Esq., P.C.
100 Livingston St, Fl 4
Brooklyn, NY 11201

Attorney for Defendant:
William Ross Van Tuyl, Esq.
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue, Suite 300
East Meadow, NY 11554

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

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment on ground that plaintiff’s assignor failed to appear for Independent Medical Examinations (“IMEs”). Plaintiff opposes the defendant’s motion and cross moves for summary judgment in its favor. The following bill is at issue:

Upon the forgoing cited papers, and after oral argument, the Decision/Order on defendant’s motion for summary judgment and plaintiff’s cross motion is as follows:

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.
(Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 175 (2019) (internal citations and quotation marks omitted)).

I. IME No-Show

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy.” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006)). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require.'” (Id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant must establish that: (1) it properly mailed scheduling letters for IMEs to plaintiff’s assignor; (2) the IME was timely scheduled; (3) the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and (4) defendant timely denied the claim on that ground. (Motionpro Physical Therapy v. Hereford Ins. Co., 58 Misc 3d 159(A) (App Term 2018)).

Here, the defendant contends that it issued proper and timely denials based on the assignor’s failure to appear for three scheduled IMEs. Defendant submitted the affidavit of its claims representative, Christopher Stewart to explain why defendant requested the IMEs. (See defendant’s exhibit D, Stewart aff). Stewart attested that defendant requested an IME after receiving notice that plaintiff’s assignor was involved in an accident on March 22, 2018. (Id. at ¶ 14). Thereafter, defendant requested a third-party company, ExamWorks, Inc. to schedule an initial IME on June 12, 2018 at 2:15pm. (Id. at ¶ 15). ExamWorks, Inc. also rescheduled follow-up IMEs for July 10, 2018 at 1:00 pm and August 14, 2018 at 1:00 pm. ((Id.).

“Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee.” (Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co.,114 AD3d 33, 46 (2d Dept 2013)). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547 (2d Dept 2006) quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept 2001). To the extent that proof of mailing is based upon a standard office practice or procedure, the burden is on the insurer to present an affidavit of an employee who personally mailed the items, or an employee with personal knowledge of the office’s mailing practices and [*2]procedures. (Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc 3d 1210(A) (Civ Ct 2013)). This individual “must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim.” (Id.)

Here, defendant relies on the affidavit of Georgianna Michios, a litigation manager at ExamWorks Inc. to establish proof of timely mailing of the IME scheduling letters. (See defendant’s exhibit I, Michios aff). The Court finds that defendant’s submission of Michios’ affidavit is insufficient to establish that the IME scheduling letters were timely and properly mailed. The Court agrees with plaintiff that the affidavit is conclusory. Michios merely states that an employee places the scheduling letters in a properly addressed envelope and mails the letter via regular mail and/ or certified mail. (Id. at ¶ 5). This affidavit fails to explicitly state ExamWorks, Inc. practices and procedures for mailing the scheduling letters.

Further, defendant’s submission of the three delivery confirmation receipt is also insufficient to prove that the IME scheduling letters were timely and properly mailed. (See defendant’s exhibit G, IME Scheduling Letters). The Appellate Division, Second Department found that defendant’s submission of a certified mail receipt and “Track & confirm” printout were insufficient where there was no evidence presented that the item purportedly mailed to the plaintiff was mailed under the proffered certified receipt number. (New York and Presbyt. Hosp., 29 AD3d 547). Here, the three delivery confirmation receipts submitted by the defendant state that the items were delivered on May 23, 2016, June 18, 2018 and July 27, 2018, respectively. However, there was no evidence presented that the items purportedly mailed to the plaintiff were mailed under the proffered certified receipt number listed on each delivery confirmation receipt. Thus, the defendant failed to establish timely mailing of the IME scheduling letters.

Even if defendant had demonstrated timely mailing of the scheduling letters, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs. Here, defendant submitted the affidavit of John Iozzio, a licensed chiropractor and acupuncturist. (See defendant’s exhibit H, Iozzio aff). The basis of Iozzio’s information is his personal knowledge of his office policy, and review of the physical file and computer records. (Id. at ¶ 3). Iozzio’s business practice is to make a notation in the file, if the individual fails to appear. (Id. at ¶ 4). Iozzio stated that he personally recorded each of Keandre Black’s nonappearance at the scheduled IMEs. (Id. at ¶¶ 6,8,10). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay.’ “

Further, Iozzio stated that he was present at each scheduled IME. According to Iozzio, the assignor failed to appear for the initial IME on June 12, 2018, and rescheduled follow-up IMEs on July 10, 2018 and August 14, 2018. (See Iozzio aff Iozzio at6,8,10). Iozzio neither stated how and whether he would have been able to identify the insured, or that no one appeared at the office at the time of each scheduled IME. (Longevity Medical Supply, Inc., 68 Misc 3d at 748). Therefore, the court agrees with plaintiff that Iozzio’s affidavit lacked personal [*3]knowledge regarding the assignor’s nonappearance.

Thus, defendant failed to establish that plaintiff’s assignor failed to appear at the IMEs on June 12, 2018, July 10, 2018 and August 14, 2018.

II. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim.” (Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 AD3d 862, 864 (2d Dept. 2009) [internal citations omitted]).

Defendant contends that on June 12, 2018 it received a bill from plaintiff for the dates of service on May 17, 2018 through June 6, 2018. The bill was in the amount of $1049.79. According to defendant, after plaintiff’s assignor failed to appear for IMEs on June 12, 2018 and August 14, 2018, a general denial form dated August 22, 2018 was mailed to plaintiff on August 23, 2022. This denial falls within the 30-days period. Also, another denial of claim form dated September 20, 2018 was mailed to plaintiff on September 21, 2018.

To establish proper mailing, defendant submits the affidavit of Carlton Lewis, a mailing manager, and certificates of mailing report. (See defendant’s exhibit E, Lewis aff; defendant’s exhibit C, Denials). According to Lewis, the items were either generated and mailed from mailing centers in Chino, California or Caledonia, Michigan. (Lewis aff ¶ 3). Lewis further stated that both denials were delivered to the U.S. Post Office, and there were no notations on the certificate of mailing reports that either denial was delayed or there were any malfunctions. (Id. at ¶¶ 9,10,15). Lewis’ affidavit and certificates of mailing reports establish proof of mailing of the denial claims forms on August 23, 2022 and September 21, 2018, in accordance with a standard office procedure. (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001); Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 27 Misc 3d 141(A) (App Term 2010)).

Contrary to plaintiff’s arguments, Lewis demonstrated personal knowledge of the mailing procedures. Lewis was employed as the mailing manager at both the Caledonia and Chin mailing centers (Curtin aff ¶ 1). Also, he is responsible for ensuring that the standard mailing practices and procedures are followed. (Id. at ¶ 2). Further, Lewis’ affidavit properly laid the foundation for the admission of the denial of claim forms and certificates of mailing reports as business records.

Thus, defendant timely issued denial of claim forms for the dates of service on May 17, 2018 through June 6, 2018. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on May 23, 2016, June 18, 2018 and July 27, 2018.

Accordingly, defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s claim.

A no-fault provider establishes its prima facie entitlement to summary judgment by (1) proof of the submission to the defendant of a claim form; (2) proof of the fact and the amount of the loss sustained; and (3) proof either that the defendant had failed to pay or deny the claim within the requisite 30—days period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See Insurance Law § 5106(a)); Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 (2010); see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2006)). Once plaintiff meets its prima facie [*4]burden, the burden shifts to defendant to raise a triable issue fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)).

To establish proper mailing, plaintiff submits the affidavit of its owner, Albert Khaimov to describe its’s standard office and procedures for generating and mailing bills. (See plaintiff’s exhibit C, Khaimov aff). Khaimov stated that he created a bill in the amount of $1049.79 for the dates of service on May 17, 2018 through June 6, 2018. (Id. at 20). However, he does not state when the bill was mailed to defendant. The court may, in its discretion, rely on defendant’s documentary submissions to establish defendant’s receipt of plaintiff’s claims. (Devonshire Surgical Facility v. GEICO, 16 Misc 3d 130(A) (App Term 2007)). Here, defendant’s claim representative affidavit established receipt of plaintiff’s bill on June 12, 2018. (Stewart aff 18). Further, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills. (Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135(A) (App Term 2016); see Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc 3d 74 (App Term 2006); Longevity Med. Supply, Inc., 68 Misc 3d at 758). Therefore, defendant’s claim representative affidavit and denial of claims forms established receipt of plaintiff’s claim. Further, Khaimov stated that the bill was neither paid nor denied within the 30-days period. (Khaimov aff 20).

Defendant proved that it timely denied plaintiff’s claim by timely mailing denial of claim forms. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at duly scheduled IMEs. Therefore, the issue that is presented here is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient. The court in Longevity Med. Supply, Inc. v. Progressive Ins. Co discussed how two Appellate Term, Second Department decisions reached opposite results on this issue. (See Longevity Med. Supply, Inc., 68 Misc 3d at 759-60. The court discussed that,

[In Rockaway Med. and Diagnostic, P.C. v. Country-Wide Ins. Co., 29 Misc 3d 136(A) (App Term 2010)], once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds. [Three years later in Shara Acupuncture, P.C. v. Allstate Ins. Co., 41 Misc 3d 129(A) (App Term 2013), once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment. Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment.

(Longevity Med. Supply, Inc., 68 Misc 3d at 760) (internal citations omitted.)

Shara Acupuncture, P.C. controls here. As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-days period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128(A) (App Term 2011)). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely [*5]denial, then the court should consider whether plaintiff met the prima facie burden under the second method. (Longevity Med. Supply, Inc., 68 Misc 3d at 760 citing Longevity Med. Supply, Inc. v. Glob. Liberty Ins. Co., 67 Misc 3d 135(A) (App Term 2020)).

Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-days period. However, the defendant established that it timely denied plaintiff’s bill. Because plaintiff had not demonstrated that the denials were conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor.

Thus, plaintiff’s cross motion for summary judgment is granted to the extent that it established timely submission of the bill to defendant, and that it remains unpaid.

Plaintiff met its prima facie case by establishing timely mailing of the bill to defendant, and that it remains unpaid. Defendant met its prima facie case by establishing timely denial.

Accordingly, the defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s bill. The plaintiff’s cross motion for summary judgment is granted to the extent it established timely submission of the claim to defendant, and the bill remains unpaid. The issue left for trial is defendant’s IME no-show defense.

This constitutes the decision and order of the court.

Index No. CV-009422-20/NY

Peter C. Merani, P.C. (Adam Waknine, of counsel), New York City, for petitioner.

Samandarov & Associates, P.C. (David M. Gottlieb, of counsel), New York City, for respondent.

In this special proceeding arising out of a no-fault arbitration, petitioner American Transit Insurance Company (ATIC) seeks to vacate the determination of a master arbitrator affirming the award of a no-fault arbitrator, which awarded respondent first-party no-fault benefits (Motion Seq. No. 001). Respondent Mark S. McMahon MD, P.C. a/a/o Rubin Gomez opposes the petition and seeks attorney’s fees incurred in opposing the petition.

BACKGROUND

Respondent Mark S. McMahon MD, P.C is the assignee of claims for no-fault benefits for arthroscopic surgery performed on the right knee of Rubin Gomez on October 31, 2017 , for injuries allegedly arising out of an automobile accident on June 3, 2017 (see petitioner’s exhibit B, NF-10 form and Explanation of Benefits). ATIC denied the claims on the ground that the [*2]surgery and surgically related services to the right knew were not causally related to the accident, based on a peer review, and “no medical necessity and no causal relationship between the accident and the shoulder surgery of 10/31/17” (see id.). Respondent then submitted the claims to no-fault arbitration (see petitioner’s exhibit D, no-fault arbitration request).

A no-fault arbitration hearing of respondent’s claims was held before the American Arbitration Association on January 8, 2020 (see petitioner’s exhibit A, no-fault arbitrator award).

Arbitrator Marcie Glasser ruled in favor of respondent, finding that “Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances” (see id. at 5). The no-fault arbitration award dated January 14, 2020 states, in relevant part:

“With regard to medical necessity defense, I find that [ATIC]’s Peer Review Report is sufficient to meet its burden of proof and to rebut [respondent]’s evidence. Thereafter, the burden shifts back to [respondent] to present competent medical proof as to the medical necessity for the knee arthroscopy, by a preponderance of the credible evidence. . . . Ultimately, the burden of proof rests with the [respondent].

* * *

I find that this burden as to medical necessity has been met by [respondent]’s medical records, the Rebuttal Report, Letter of Medical Necessity of Dr. McMahon, and the evidence collectively. I am convinced that the Claimant attempted an ample course of non-operative conservative treatment measures including physical therapy under the circumstances, and the decision to perform arthroscopic knee surgery was reasonable to repair the meniscus tear. Moreover, this finding is supported by the fact that the credibility of the Peer Review Report is diminished as it is found to be conclusory in nature, and because Dr. Skolnick primarily relied upon the independent radiology report of Dr. Fitzpatrick which bears minimal weight in this determination. The treating radiologist and the treating orthopedist both reviewed the MRI which showed a tear of the posterior horn of the medial meniscus. The Rebuttal Report appropriately addressed the issues of the Peer Review Report. The orthopedic surgeon, Dr. McMahon, based on his professional experience, examination and treatment of the Claimant determined that the surgery for the meniscus tear was in accordance with the standard of care. I find that the Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances”

“I find that Respondent has not adequately demonstrated lack of causation, and therefore, the defense cannot be sustained. The Peer Review Report of Dr. Skolnick is found to be conclusory with regard to the issue of causation. Moreover, Dr. Skolnick relied on the Independent Radiology Evaluation of Dr. Fitzpatrick, which states that the MRI findings, specifically the cartilage thinning, are degenerative in nature, but the Independent Radiology Evaluation, was not specific as to the tear in relation to the thinning cartilage. In the Addendum, Dr. Skolnick stated that he agrees with the treating radiologist’s report that the MRI showed a tear of the meniscus; however, according to the independent radiology review of Dr. Fitzpatrick, there was no evidence of traumatic injury. I find that [*3]Dr. Skolnick’s determination that the MRI showed no traumatic injury is without appropriate reliance on the independent radiology review of Dr. Fitzpatrick. The Peer Reviewer himself interpreted the MRI as showing a meniscus tear, which is in accordance with the interpretation of the MRI by the treating orthopedist and the treating radiologist. The independent radiologist did not state with specificity that the meniscus tear is degenerative in nature and there is a lack of support for the opinion that the injury is not causally related to the accident. I find that the reliance on the Independent Radiology Review is misplaced, and Dr. Skolnick’s finding of lack of causation is conclusory”

The arbitrator also awarded interest from the date of 1/21/2019, and attorney’s fees in the amount “in accordance with newly promulgate 11 NYCRR 65-4.6(d) on the amount awarded of $4,702.03 at a rate of 2% per month, simple and ending with the date of payment of the Award” (id. at 7). The arbitrator also directed ATIC to pay respondent $40 for reimbursement of the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award (id.).

On appeal, Master Arbitrator Robert Trestman affirmed the original arbitrator’s award in its entirety. The master arbitration award, dated March 24, 2020 states, in relevant part:

“I have carefully reviewed the parties’ briefs, the record on appeal, as presented by respondent and the pertinent case law, including the two cases hereinabove cited by respondent. The arbitrator’s detailed findings and conclusions as to the medical necessity and causal relationship issues were within the arbitrator’s sound discretion and rational interpretation of the evidence and which I do not find to be reversible error within my purview as a Master Arbitrator. . . . Within my powers as a Master Arbitrator, I cannot conduct a de novo review of the case and I cannot substitute my interpretation or my view as to the weight or credibility of the evidence over that of the lower arbitrator, especially as the arbitrator’s decision appears to be rational and based on the evidentiary record”

The master arbitrator also awarded $195 to the applicant for attorney’s fees for having prevailed in the master arbitrator’s review of the award (see id. at 5).

On July 29, 2020, ATIC commenced this proceeding pursuant to CPLR 7511 to vacate the master arbitrator’s award.

DISCUSSION

“Judicial review of a master arbitrator’s award is restricted, by the terms of the statute, to the grounds for review set forth in article seventy-five of the CPLR” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981] [internal quotation marks omitted]; Insurance Law § 5106 [c]). Pursuant to CPLR 7511 (b), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his, her, or their power or imperfectly executed it that a final or definite award was not made; or (4) the failure to follow [*4]the procedures of CPLR article 75. Additionally,

“[w]here, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason. This standard has been interpreted to mean that the relevant test is whether the evidence is sufficient, as a matter of law, to support the determination of the arbitrator, [and whether the determination] is rational and is not arbitrary and capricious”

According to ATIC, the arbitrators ignored explicit evidence that ATIC had submitted, failed to apply the proper evidentiary burdens, and rendered an award that was not final and definite that was prejudicial to petitioner (affirmation of petitioner’s counsel ¶ 62). Citing the standards applicable to an insurer’s motion for summary judgment on the ground of medical necessity, ATIC contends that, once it offered it peer review report of Dr. Skolnick, the burden should have shifted to respondent to rebut with evidence establishing that the services were medically necessary (see id. ¶¶ 21-23). ATIC contends that respondent failed to meet its burden because “Respondent offered no significant rebuttal to actually rebut the findings of Dr. Skolnick” (id. ¶ 34).

ATIC argues, “Dr. Skolnick submitted an addendum dated 3/7/19. In it, Dr. Skolnick directly addressed Dr. McMahon’s general statements concerning an alleged tear in the knee necessitating the surgery. Dr. Skolnick stated there was no right knee fracture or dislocation” (id. ¶ 31). According to ATIC, “[t]he no-fault arbitrator exceeded his bestowed powers as there was no basis simply to cast aside the entirety of petitioner’s evidence” (id. ¶ 38).

Respondent maintains that “ATIC’s evidence was not cast aside. It was carefully reviewed and found to be insufficient, in light of the facts and Respondent’s rebuttal (affirmation in opposition of respondent’s counsel ¶ 11). Respondent contends that petitioner’s disagreement with the arbitrator’s findings of fact is not a basis to vacate the award (id.). Respondent further argues, “Applicant was not required to prove that the motor vehicle [sic] exacerbated a pre-existing condition. That was ATIC’s burden if ATIC wanted to prove that the injury was not caused by the accident. . . .it is well-settled that exacerbation of a preexisting condition is compensable under no-fault.”

In reply, ATIC argues that the issue of causality was never considered (reply affirmation of petitioner’s counsel ¶ 7). ATIC submits that “the arbitrator failed to apply the rules in connection to a lack of causation defense” (id.. ¶ 10). According to ATIC, “lack of causation does not require a citation to medical rationales as to whether or not certain types of treatment should be administered. The causation issue is not whether or not a doctor should administer treatment” (id. ¶ 11). ATIC maintains, “the peer review doctor is not required to cite any medical authorization as to support his conclusion for lack of causation as the issue is not one regarding lack of medical necessity. The arbitrator confused the proof required with that of prima facie proof for a lack of medical necessity defense” (id. ¶ 17).

The court agrees with respondent.

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2d Dept 2002]). Where error of law is at issue, the [*5]test is “whether any reasonable hypothesis can be found to support the questioned interpretation. Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]); accord Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [2d Dept 1996]).

Here, ATIC fails to establish that the no-fault arbitrator’s award was so irrational as to require vacatur. First, the burden of proof applicable at trial involving medical necessity and an insurer’s burden on a motion for summary judgment are not described in the same terms.

“In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff [provider] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary”

Here, it is abundantly apparent that the no-fault arbitrator ruled that respondent had met its ultimate burden of demonstrating that the services at issue were medically necessary by a preponderance of the evidence (see petitioner’s exhibit A, no-fault arbitrator award, at 5).

The no-fault arbitrator also found that “[ATIC] has not adequately demonstrated lack of causation” (no-fault arbitrator award, at 5). The no-fault arbitrator thoroughly considered the evidence. A reasonable hypothesis can be found to support this interpretation. Insofar as there was no dispute that respondent had established its prima facie case, ATIC “had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident” (A & A Dental, P.C. v State Farm Ins. Co., 19 Misc 3d 135[A], 2008 NY Slip Op 50709[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

The no-fault arbitrator rejected as conclusory the Peer Review Report of Dr. Skolnick with regard to the issue of causation. It would appear that the no-fault arbitrator concluded that the tear was caused by trauma, given that “the independent radiologist did not state with specificity that the meniscus tear is degenerative in nature” (see petitioner’s exhibit A, no-fault arbitrator award, at 5). ATIC essentially argues that the no-fault arbitrator should not have found that the tear was caused by trauma because Dr. Skolnick stated in his Addendum that there was no evidence of a fracture or dislocation. However, the no-fault arbitrator’s finding that ATIC did not meet its burden that the surgery was not causally related to the accident is consistent with the no-fault arbitrator’s credibility determinations about Dr. Skolnick and Dr. Fitzpatrick.

Contrary to ATIC’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring ATIC’s evidence that services rendered Rubin Gomez were not medically necessary; the arbitrator simply made a factual determination that they were medically necessary (Miller, 170 AD3d at 437). ATIC argues, in essence, that the arbitrator’s determination was an error of law because the arbitrator did not resolve issues of credibility in ATIC’s favor. “However, where, as here, the evidence is conflicting and room for choice exists, this Court may not weigh the evidence or reject the choice made by the arbitrator” (Matter of Powell v Bd. of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955-56 [2d Dept 2012]). “Obviously, if a court cannot ‘weigh’ the evidence, it cannot weigh credibility, which in [*6]the end is simply a component of that evidence” (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1, 5 [1st Dept 1997]).

The fact that the no-fault arbitrator accepted respondent’s affirmed rebuttal letter over Dr. Skolnick’s peer review report and Addendum presented an issue of Dr. Skolnick’s credibility for the factfinder to resolve. These are not errors of law, notwithstanding that the ATIC’s peer review report and other evidence in the record might support a contrary result. The no-fault arbitrator credited the written testimony of respondent’s physician over that of ATIC’s peer reviewer.

To the extent that ATIC argues that the award “went against the entire weight of the unrebutted evidence” (see petition ¶ 38),

“[a] master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator”

Here, the master arbitrator correctly determined that the evidence was sufficient, as a matter of law, to support the original arbitration’s determination (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2d Dept 2008] [testimony of expert witness, who based his opinion upon his examination of defendant and his review of defendant’s relevant medical records, including, inter alia, CT scans and MRIs, was sufficient to establish that defendant’s condition was causally related to the accident]; cf. Advanced Orthopedics, PLLC v GEICO, 63 Misc 3d 136[A], 2019 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [record supported the dismissal of complaint because Civil Court found defendant’s expert witness credibly testified that the surgery was not causally related to accident in question]). Thus, the master arbitrator did not exceed his/their powers.

ATIC’s argument that the award was not final or definite is without merit. “An award is deficient in this regard and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]). Here, the no-fault arbitration award determined ATIC’s and [respondent]’s rights and obligations, resolved the claims submitted to arbitration, and did not create any new controversies.^[FN1]

Therefore, ATIC’s petition to vacate the master arbitrator’s award is denied.

CPLR 7511(e) mandates confirmation of the award upon denial of an application to [*7]vacate or modify the award (Blumenkopf v Proskauer Rose LLP, 95 AD3d 647, 648 [1st Dept 2012]). Therefore, the award is confirmed.

The no-fault arbitrator awarded respondent the amount of $4,702.03, with interest from 1/21/2019, plus attorney’s fees (petitioner’s exhibit A, no-fault arbitrator award at 6-7). Interest on overdue payments is fixed by regulation at the rate of 2 per cent per month (11 NYCRR 65-3.9 [a]). The total amount of interest due on $4,702.03 from 1/21/2019 until 1/14/2020 (the date of the award) is $1,106.86(2% x $4,702.03 x 11 months 24 days). The amount of attorney’s fees awarded by the no-fault arbitrator is therefore $1,161.78(20% x [$4,702.03 + $1,106.86) (11 NYCRR 65-4.6 [d]).

In addition, the master arbitrator awarded $195 in legal fees for the master arbitration (see petitioner’s exhibit A, master arbitrator award).

Respondent is also entitled to recover costs of the proceeding in the amount of $50.00, for the amount of the judgment is more than $6,000, and no notice of trial has been filed (CPLR 8101; NY City Civ Ct Act § 1901 [a], [b] [1]).

Citing 11 NYCRR 65-4.10 (j) (4), respondent also requests that the court award attorney’s fees in the amount of $1,000, for 2.5 hours (calculated at a rate of $400 per hour) spent to oppose the petition (see affirmation in opposition of respondent’s counsel ¶ 19).

ATIC opposes the request, claiming that $400.00 is a “marquee rate for private litigation” (reply affirmation of petitioner’s counsel ¶ 24). ATIC argues that the hourly rate for attorney’s fees should not exceed the hourly rates of attorney’s fees for a master arbitration, which are capped at $65.00 an hour, and $650.00 in total (id. ¶¶ 24-27).

Respondent correctly indicates that it is entitled to recovery attorney’s fees incurred in the Article 75 proceeding. If a valid claim for first-party no-fault benefits is overdue, the claimant is entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations (Insurance Law § 5106 [a]). No-fault regulations provide that “[t]he attorney’s fee for services rendered … in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR § 65-4.10[j][4] ). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [1st Dept 2020]).

ATIC’s argument raises a threshold issue of whether there any regulatory limits on amount of attorney’s fees incurred in connection with Article 75 proceeding to vacate or confirm a master arbitration award.

As ATIC points out, the no-fault regulations limit the amount of attorney’s fees recoverable for services rendered in connection with the master arbitration itself. For example, for preparatory services, the attorney is entitled to “a fee of up to $65 per hour, subject to a maximum fee of $650,” and “a fee of up to $80 per hour for oral argument before the master arbitrator” (see 11 NYCRR 65-4.10 [j] [2] [i], [ii]). For disputes subject to arbitration or court proceedings involving a “policy issue,” the no-fault regulations also limit the attorney’s fee for the arbitration or litigation of all issues to “a fee of up to $70 per hour, subject to a maximum fee of $1,400” (11 NYCRR 65-4.6 [c]; see Kamara Supplies v GEICO Gen. Ins. Co., 67 Misc 3d [*8]129[A], 2020 NY Slip Op 50414[U] [App Term, 1st Dept 2020]). ^[FN2]

However, there do not appear to be any no-fault regulations limiting the amount of attorney’s fees recoverable for services rendered in a proceeding taken pursuant to Article 75 of the CPLR to vacate or confirm a master arbitration award (see e.g. Matter of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]).

In Matter of Hempstead General Hospital, the Appellate Division, Second Department implicitly endorsed the calculation of the attorney’s fees upon a reasonable hourly rate without any limitations, for services rendered in a proceeding to vacate or confirm a master arbitration award. There, the Supreme Court had determined that petitioner was entitled to counsel fees in vacating a master arbitration award, and that the petitioner’s counsel’s work was worth $175 per hour, for a total of $7,000 (179 AD2d at 646). However, the Supreme Court reduced the award to $756, on the ground that it would only award a fee on that portion of the work performed directly on behalf of the client (id.). On appeal, the Appellate Division, Second Department, modified the Supreme Court’s order to increase the award of counsel fees to the full amount of $7,000 (id.).

The court finds that the time that respondent’s counsel spent on this Article 75 proceeding and the hourly rate were reasonable. Accordingly, respondent is awarded $1,000.00 in attorney’s fees for services rendered in opposing the petition.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED and ADJUDGED and the petition to vacate the arbitration award (Motion Seq. No. 001) is DENIED, and it is further

ADJUDGED that the award of the master arbitrator Robert Trestman, dated March 24, 2020 rendered in favor of respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez against petitioner American Transit Insurance Company, affirming the award of the no-fault arbitrator Marice Glasser issued on January 14, 2020 is confirmed; and it is further

ADJUDGED that respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez, having an address at 876 Park Avenue, New York, NY 10075, do recover from petitioner American Transit Insurance Company, having an address at 5 Broadway, Freeport, New York 11520, the amount of $4,702.03, plus interest at the rate of 2% per month from the date of 1/21/2019 until 1/14/2020, in the amount of $1,106.86, plus attorney’s fees in the amount $1,161.78, plus $40.00 as reimbursement for a fee previously paid by respondent, plus attorney’s fees incurred in the master arbitration in the amount of $195.00, plus attorney’s fees incurred in this proceeding in the amount of $1,000.00, together with costs of this proceeding in the amount of $50.00, for the [*9]total amount of $8,255.67, and that the respondent have execution therefor.

This constitutes the decision, order, and judgment of the court.

____________/s/__________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Although not raised by petitioner, the court notes that the fact that the no-fault arbitration award did not specify an exact amount of interest or attorney’s fees awarded does not render the award indefinite, because the amounts may be ascertained through computation of simple arithmetic (see Matter of Hunter [Proser], 274 AD 311, 312 [1st Dept 1948], affd 298 NY 828 [1949]).

Footnote 2: “‘[P]olicy issues’ enumerated on the denial of claim form at bar are clearly limited to include only: (1) the policy was not in force on the date of the accident (box 3); (2) the injured person is excluded under policy conditions or exclusion (box 4); (3) the policy conditions were violated, which is limited to two categories involving late submission of a notice of claim (box 5); (4) the injured person is not an eligible injured person (box 6); (5) and the injuries did not arise out of use or operation of a motor vehicle (box 7)” (Kamara Supplies, 67 Misc 3d 129[A], 2020 NY Slip Op 50414[U], *1).

ATIC does not contend that the arbitration involved a “policy issue.” No “policy issues” were checked off as reasons for denial on the denial of claim form (see petitioner’s exhibit B).

Index No. CV-718889-16/KI

The plaintiff was represented by Michael Nathan, Esq., Lewin & Baglio LLP, 1100 Shames Drive, Westbury, New York 11590, (T) 516-307-1777 ext. 121, (F)516-307-1770, Mnathan@lewinbaglio.com.

The defendant was represented by Adam Waknine, Esq., Peter C. Merani, P.C., 1001 Avenue of the Americas, Suite 1800, New York, NY 10018, Phone: (212) 629-9690, Fax: (212)629-9664, E-Mail: awaknine@meranilaw.com.

After trial, held before me in the above captioned action on July 13, 2022, I find:

Plaintiff, James J. Kim, a licensed acupuncturist, commenced this no-fault action against defendant, Allstate Insurance Company (“Allstate”), following Allstate’s denial of plaintiff’s claims for no-fault benefits for acupuncture services provided from February 9, 2015, through December 7, 2015. Plaintiff’s assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based upon the report of an Independent Medical Examination (“IME”) conducted by Dr. Thomas McLaughlin on March 13, 2014. At trial, Allstate defended their denials based on lack of medical necessity by solely relying upon the IME report and live testimony of Dr. McLaughlin. The plaintiff rebutted the denial through the live testimony of Dr. Kim, as well as by cross-examining Dr. McLaughlin about the contents of his IME report. Each party also submitted trial packets for the court’s consideration which were introduced into evidence on consent and without objection.

Dr. McLaughlin examined Mr. Greengus on March 13, 2014. At that time, Mr. Greengus had been receiving acupuncture services for approximately three months. Mr. Greengus complained of pain in his left shoulder and neck. Dr. McLaughlin referred to those complaints in his report as “non-descript” but did not specify what, if any, questions he asked that were designed to elicit a detailed description of Mr. Greengus’ symptoms. The report notes that Mr. Greengus indicated that his symptoms had not improved with care.

In his report, Dr. McLaughlin included a section on acupuncture treatment under the heading “Traditional Chinese Medicine (TCM) Discussion.” In relevant part, Dr. McLaughlin concludes:

Combined with a full history and inspection the TCM practitioner will also study the quality of the patient’s pulse and tongue in order to determine not only if pathology is present and the type it is, but in order to devise a treatment protocol. Traditional Chinese [*2]Medicine, acupuncture being one facet of it, is then employed in order to rebalance the body and aid in the facilitation of health and wellness. The treatments are administered by applying needles, in the case of acupuncture, to acupoints along channels that course throughout the body and promote a physiologic response. Nine of the fourteen body channels used are named after organ systems in the body. With respect to Mr. Rick Greengus’s pulse, which has a rate of 64bpm, his tongue, and the channels are unremarkable with regard to a Qi and/or blood stagnation disorder according to the principles of TCM.

Based upon his examination findings, Dr. McLaughlin concluded that no further acupuncture care was necessary because Mr. Greengus’ examination did not reveal any objective findings of dysfunction or discomfort. His trial testimony echoed those findings to a certain extent. He opined that standard practice for an acupuncturist would be to evaluate the patient by taking a history and checking certain relevant factors such as pulse, the condition of the tongue and blood stagnation. Dr. McLaughlin testified that periodic evaluation or revaluation is warranted when there is an ongoing course of treatment in order to determine whether the medical provider needs to adjust the treatment being provided (Tr at 15, 17).

The plaintiff rebutted Dr. McLaughlin’s findings through the testimony of Dr. Kim the provider who opined that continued acupuncture treatment was medically necessary due to continued neck pain, shoulder pain and lower back pain. Dr, Kim also referenced the same traditional Chinese Medicine diagnosis referenced in Dr. McLaughlin’s IME report, i.e., blood stagnation and tongue diagnosis. Dr Kim also testified that he performed through evaluations of Mr. Greengus prior to each treatment session.

After considering the testimony and evidence presented at this trial, I find that the plaintiff should have judgment in its favor. The defense being asserted by the defendant insurer is commonly known as a “IME cut-off”. The court finds this terminology, although widely used in no-fault litigation, to be imprecise and arguably misleading. To the defendant, IME cut-off is the sole proper basis for the denials. The assertion is that after March 14, 2014, based upon the findings of Dr. McLaughlin after the IME, Mr. Greengus was perfectly healthy and no longer required any further treatment, specifically acupuncture and chiropractic related. The defendant would have the court believe that the injured party’s health and condition is frozen in time as of the date of the IME and, absent evidence from the plaintiff that rebuts the findings of the IME, the plaintiff has failed to meet its burden for recovery of no-fault benefits. This misstates the purpose and/or probative value of an IME.

An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party’s medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.

An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary (see Amato v State Farm Ins. Co., 40 Misc 3d 129(A) [App Term 2d Dept 2013], Unitrin Advantage Insurance Company v Lake Chiropractic, PLLC, [*3]64 Misc 3d 1201[A] [New York County Civ Ct 2019]; Amato v State Farm Ins. Co., 30 Misc 3d 238, 242 [NY Dist Ct 2013]; All-In-One Med. Care, P.C. v Govt. Employees Ins. Co., 43 Misc 3d 726, 734 [NY Dist Ct 2014]).

The defendant maintains that by not recognizing the IME as a fixed cut-off date for no-fault benefits deemed not medically necessary, the Court is allowing for the reimbursements of benefits indefinitely so long as the provider self-certifies that the treatment is providing medical benefits to the injured party. This is not the Court’s intention nor is it the practical result. Again, the only effect of the pre-claim IME on this litigation was to shift the burden to the plaintiff-provider to show that the treatment was medically necessary. If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME. The defendant is entitled to rely on that single IME if they wish, but the effect is no different than any other denial based on the alleged lack of medical necessity. It simply shifts the burden to the plaintiff, who can then rebut with credible testimony and shift the burden back to the defendant insurer.

That is exactly what happened here. Dr. Kim credibly testified that he conducted an evaluation of the patient each time the patient came to see him before providing any treatment (Tr at 55, 60). This testimony is bolstered by the records in evidence of Dr. Kim’s treatment of the patient prior to the IME – which each contain notes regarding the current diagnosis of the patient and notes of what was evaluated. (Plaintiff’s Exh. D, pages 182-187, 332-356, 422-427, 451-456). The court credits the testimony of Dr. Kim that further medical treatment was necessary for the injured assignor, over the testimony of Dr. McLaughlin, that it was not medically necessary. The court finds that Dr. Kim properly performed additional evaluations of the patient, consistent with the very same standards of traditional Chinese Medicine referenced in Dr McLaughlin’s report, and Dr. Kim was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Kim possessed more information and was in a better position to make the determination than Dr. McLaughlin. I find that Dr. Kim’s testimony is sufficient to demonstrate, by a preponderance of the credible evidence, that the treatments at issue were medically necessary.

Accordingly, judgment is rendered for the plaintiff in the amount of $2018.77 — the amount the parties stipulate is correct under the fee schedule — plus statutory interest and attorney fees.

The clerk may enter judgment.

Index No. CV-711172-18/QU

Plaintiff’s Counsel:
Lewin & Baglio
1100 Shames Drive, Suite 100
Westbury, NY 11590

Defendant’s Counsel:
Travelers Insurance Company
3 Hunting Quadrangle
Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

II. Background

In a summons and complaint filed September 7, 2018, Plaintiff sued Defendant insurance company to recover $3,116.03 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Laporte from February 4 to May 4, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Granov, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Defendant timely paid Plaintiff’s claim according to the applicable fee schedule (CPLR 3212[b]). Plaintiff cross-moved for summary judgment on its claim against Defendant. The motions were assigned to this Court for determination on March 16, 2022.

III. Discussion

Automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

Defendant requested that the court take judicial notice of the various fee schedules. The party requesting judicial notice must furnish the court “sufficient information to enable it to comply with the request” (CPLR 4511[b]; see Ponnambalam v Sivaprakasapillai, 35 AD3d 571, 574 [2d Dept 2006]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] *1 [App Term 2d Dept 2017]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] * 2 [App Term 2d [*3]Dept 2011]). Here, Defendant presented a copy of the fee schedules upon which its witness relied (see Motion, Granov Aff., Ex. D).

Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). To support its motion, Defendant relied on the affidavit of Marchitte, Defendant’s Medical Appeals Analyst sworn September 24, 2019, in which she concluded that, based on the fee schedule, Plaintiff’s bills for the medical equipment exceeded the applicable fee schedule (Motion, Granov Aff., Ex. E).

To qualify as an expert, a witness must possess skill, training, knowledge, and experience to allow an assumption of the reliability of the opinion rendered (Price v. New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Matott v. Ward, 48 NY2d 455, 459 [1979]; DiLorenzo v. Zaso, 148 AD3d 1111, 1112-13 [2d Dept 2017]; Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847 [2d Dept 2016]). In her affidavit, Marchitte attested that her position as a Medical Appeals Analyst necessitated that she became familiar with specified billing codes. Since Marchitte did not identify how she became familiar with the billing codes whether through education, training or apprenticeship, she failed to specify her qualifications, which are necessary to establish that she was an expert (Chtchannikova v. City of New York, 174 AD3d 572, 573 [2d Dept 2019]; DiLorenzo v Zaso, 148 AD3d at 1115; Leicht v. City of NY Dept of Sanitation, 131 AD3d 515, 516 [2d Dept 2015]; Currie v Wilhouski, 93 AD3d 816, 817 [2d Dept 2012]). Since Defendant failed to support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount in controversy (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupunctrure, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Therefore, the court denies Defendant’s Motion for summary judgment.

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). To support its Cross-Motion, Plaintiff essentially relied on Defendant’s denial of claim forms which were sufficient to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). In our instant case, Defendant’s denial of claim forms demonstrated partial payment of defendant’s claims and timely denial of the remainder of the claims (see Motion, Granov Aff., Ex. F). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claims against Defendant, the court denies Plaintiff’s Cross-Motion for summary judgment.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

______________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

CV-708764-2020/KI

Attorney for Petitioner: Oleg Rybak, Esq.The Rybak Firm, PLLC1810 Voorhies Avenue, 3rd Floor, Suite 7 Brooklyn, NY 11235
Attorney for Respondent:Lola Klis, Esq. Law Office of Goldstein, Flecker & Hopkins 2 Huntington Quadrangle, Suite 2N01 Melville, NY 11747

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment, numbered as they appear on EDDS.

After argument, Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment are consolidated for disposition purposes only and decided jointly as follows:

In this action seeking assigned no-fault benefits, SB Chiropractic, P.C. a/a/o Rivera, Eddie (“Plaintiff”) seeks summary judgment against Geico Insurance Co. (“Defendant”), or in the alternative, an order limiting the issues of fact for trial and dismissing Defendant’s affirmative defenses. Defendant opposes the motion and cross-moves for summary judgment in its favor.

Plaintiff alleges that it provided medical care to Eddie Rivera (“Assignor”) from July, 2017 through April 2018 after a July 9, 2017 automobile accident. It is undisputed that Plaintiff sent ten bills to the Defendant insurance carrier for this medical care (Plaintiff’s Motion Ex. 3). Each bill includes a list of dates when care was provided, a Current Procedural Terminology code (“CPT”) designated by the Worker’s Compensation Fee Schedule (“WCFS”) to be used for the procedure or procedures that were performed on that date, and a monetary amount billed. (Id.) The amount billed is derived from the multiplication of the Relative Value Unit (“RVU”) which is assigned to the CPT code by a conversion factor based upon where in New York State the services were rendered (see Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A], [App Term 2016])^[FN1] .

Defendant asserts that it partially paid or denied each of these bills, by sending Plaintiff”Denial of Claim forms” within 30 days of receipt (11 NYCRR 65-3.8[c]; see Defendant’s Ex C). Each Denial of Claim form includes the amount Defendant reimbursed the Plaintiff for each date of service, along with a note explaining the reasons for any reduction in reimbursement from the amount requested (Defendant’s Ex. C). Defendant’s cross-motion contains both an affirmation and an affidavit from a “Claims Representative,” which explain the computations utilized for each reimbursement, partial reimbursement, and denial (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

Plaintiff argues that it is entitled to summary judgment because it submitted claim forms to the Defendant, Defendant failed to issue a timely denial of claim form and/or the form was conclusory, vague, or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, 2011 [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011], Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501, [2015][“A plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer”]). Defendant argues that it properly and timely mailed Denial of Claim forms, and that each partial payment or denial was proper. Therefore, the issue is whether Defendant’s denials are sufficient to defeat Plaintiff’s motion for summary judgment, and whether they entitle Defendant to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011]).^[FN2]

The standard for summary judgment is clearly articulated in CPLR § 3212(b) which provides that “the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in [*2]directing judgment in favor of any party.” The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

In order to succeed on its motion, Defendant must establish that it mailed the Denial of Claim forms within 30 days of receiving Plaintiff’s bills. To establish that denial of claim forms were mailed on time, the insurance company may rely upon the affidavit of a claims associate. Proof of mailing may be shown based on a mailing receipt, or, that the item was mailed pursuant to the affiant’s standard office practices and procedures (GL v Allstate Ins. Co., 2018 NY Slip Op 50842[U] [2d Dept 2018]). The claim representative must demonstrate, through an affidavit, knowledge of the insurance company’s standard office practices or procedures, and that the items were properly addressed and mailed pursuant to these practices or procedures (St. Vincent’s Hosp. of Richmond v Govt. Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]). Crucially, an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim (11 NYCRR 65-3.8[h]). Proof of a standard office practice and procedure gives rise to a presumption of mailing and receipt (Cit Bank N.A. v Schiffman, 36 NY3d 550 [2021]). To rebut the presumption,

“[T]here must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient” (Id).

Defendant attaches to its cross-motion an affidavit from Cleone Victor, (“Victor Affidavit”) who avers that they are a “claims associate” in Defendant’s Woodbury, New York, office (Defendant’s Cross Ex. B). The Victor Affidavit recounts, in detail, Defendant’s standard office procedures for mailing and processing bills, that Plaintiff’s bills were processed according to these procedures, and that Denial of Claim Forms were processed according to these procedures. Cleone Victor describes Defendant’s application of the ATLAS Claim System to process bills and denials like the ones submitted by Plaintiff here (Defendant’s Cross Ex. B) and how the system is designed to ensure that the denials arrive to the Defendant within the required time.

Plaintiff argues that the Victor Affidavit is insufficient because it fails to lay a proper foundation for Victor’s knowledge of Defendant’s mailing processes. But, Plaintiff’s objections are mainly technical, grammatical arguments rather than based on merit, and, Plaintiff misstates the Victor Affidavit multiple times; Plaintiff argues that Cleone Victor “never asserts that she has knowledge of what procedures were in place at the time mailing purportedly occurred” and that “Victor states that she has been employed by Geico in the Woodbury, New York office since on or about January 1995” (Plaintiff’s Aff in Opp., 72). The Victor Affidavit, however, clearly states: “[t]he procedures described in this affidavit were in place and were utilized by GEICO in the Woodbury Office at the time that the documents relating to this matter were created, printed and mailed” and, “I have been employed by GEICO in the Woodbury, New York office since on or about June 2005” (Defendant’s Cross Ex. B). Plaintiff’s remaining [*3]arguments similarly lack a factual basis necessary to rebut the presumption of timely mailing; Defendant has demonstrated that it timely mailed the Denial of Claim forms in this case.

Plaintiff also maintains Defendant has not met its burden on summary judgment because Defendant failed to establish it properly reimbursed Plaintiff for its bills. To establish proper reimbursement pursuant to the WCFS, the Defendant may submit an affidavit setting forth the calculation (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]). Notably, an expert affidavit is not required to support fee schedule reductions (Id). Rather, the Defendant needs to prove that it multiplied the RVU assigned to the CPT code for the services rendered by a conversion factor based upon where in New York State the services were rendered (Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A]), which, in this case, is $5.78.

In addition to the Victor Affidavit, Defendant’s cross-motion includes an affirmation in support (“Affirmation”) which explains the method Defendant used to calculate the proper reimbursement of the Plaintiff’s bills. The Affirmation and Victor Affidavit explain that based upon the WCFS formula, Plaintiff often billed Defendant in excess of the permissible amount. For example, WCFS Ground Rule 2 specifies that reimbursement for an initial evaluation shall be limited to 13.5 RVUs (Defendant’s Cross Ex. B). On 7/10/2017, however, Plaintiff billed 14.04 RVU’s for the initial evaluation: one unit of code 99203, carrying an RVU of 9.47, and one unit of code 98940, carrying an RVU of 4.57. Defendant reimbursed Plaintiff for the maximum permissible amount, 13.5 RVUs, and denied the remaining .54 RVUs. As provided below, Victor’s Affidavit and Defendant’s Affirmation articulate the application of the WCFS to each of Plaintiff’s bills and therefore an expert affidavit is not required (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

The Affirmation and the Victor Affidavit explain Defendant’s processing of Plaintiff’s ten bills as follows:

• Defendant received Plaintiff’s first bill on August 10, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $530.12 on July 10-14, 17-21, 24-28, 31 of 2017 and August 1-2 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on August 30, 2017, determined that Plaintiff was entitled to $527.00, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS permits reimbursement for only 13.5 RVU per day, and Plaintiff billed for 14.04 RVU (Defendant’s Cross Ex. C at 77-79).

• Defendant received Plaintiff’s second bill on September 18, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $269.17 on August 23-24, and 28-30 of 2017 and September 7-8 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on October 10, 2017, determined that Plaintiff was entitled to $206.77, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day, for “modalities and procedures” and Defendant had already reimbursed a separate provider, Healthway Medical Care, P.C., for 7.65 RVU on each date. Defendant includes the bills and reimbursements to the separate provider for services provided to Assignor on the same date. The court notes that Defendant actually reimbursed more than what was required on this bill; Defendant paid 4.6 RVU for the date of service when .35 RVU was all [*4]that remained of the allotment of 8 RVU (Defendant’s Cross Ex. C at 87-88).

• Defendant received Plaintiff’s third bill on October 23, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $361.65 on October 2-5, 10, 12-13, and 16 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 8, 2017, determined that Plaintiff was entitled to $314.42, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and the Defendant had already paid a different provider 7.65 RVU. (Id.) In addition, the WCFS provides for a maximum reimbursement of 11 RVU for a re-evaluation, but the Plaintiff had billed for 13.46 RVU (Defendant’s Cross Ex. C at 100-102). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received the Plaintiff’s fourth bill on November 13, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $219.64 on October 18, 20, 24, 26, and 30 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 30, 2017, determined that Plaintiff was entitled to $191.02, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on three of the four dates of service included in that bill (Defendant’s Cross Ex. C at 115-116). The court notes that Defendant overpaid for certain procedures on this bill.

• On November 20, 2017, Frank J. McNally, a New York State licensed chiropractor, and Rachel Saperstein, a New York State licensed acupuncturist, both conducted an Independent Medical Evaluation (“IME”) of Assignor, on behalf of Defendant. After these evaluations and a review of certain delineated medical records, both concluded that no further chiropractic or acupuncture treatment was medically necessary (Defendant’s Cross Ex. D). A “Blanket Denial of Claim” form was generated on November 27, 2017 and notice was provided to Plaintiff that further treatment was not medically necessary (Defendant’s Cross Ex. C). The form also provided that all benefits for treatment would be denied effective December 3, 2017 (Id).

• Defendant received Plaintiff’s fifth bill on December 4, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $323.68 on November 2, 6, 8, 10, 14-15, and 27 of 2017 (Defendant’s Cross Ex. C). Respondent issued its Denial of Claim form on December 18, 2017, determined that Plaintiff was entitled to $266.44, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement because the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on six of the seven dates of service included in that bill (Defendant’s Cross Ex. C at 129-130). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received Plaintiff’s sixth bill on December 22, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $138.72 on November 28 of 2017 and December 1, and 4 of 2017 (Defendant’s Cross Ex. C). Defendant [*5]issued its Denial of Claim form on January 8, 2018, determined that Plaintiff was entitled to $73.40, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement for two reasons: first, the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on two of the dates of service included in that bill (Defendant’s Cross Ex. C at 143-145). The remaining procedures were denied based upon the IME reports which determined that there was no further “acupuncture, chiropractic, massage therapy, diagnostic testing and supplies treatment” necessary as of December 3, 2017 (Defendant’s Cross Ex. D).

• Defendant received Plaintiff’s seventh through tenth bills on January 15, 2018, February 5, 2018, March 26, 2018, April 19, 2018, which were all timely denied, on January 19, 2018, February 12, 2018, April 4, 2018, May 1, 2018, respectively, based upon the IME reports and the accompanying Blanket Denial (Defendant’s Cross Ex. C at 158-182), as well as the WCFS.

Plaintiff attaches a rebuttal fee schedule affidavit (Plaintiff’s Opp. Ex. 6), to rebut the Victor Affidavit and Defendant’s use of the WCFS. However, the affidavit purports to, but does not actually use the billing codes in Plaintiff’s bills. Rather, the affidavit explains why Plaintiff purportedly billed for medical procedures using codes 97799, 97810, 97811, and 99204 when in fact the bills seek reimbursement for procedures utilizing codes 99203, 98940, 98941, 99212, and 97139. As such, Plaintiff’s affidavit does not rebut, or even relate to, the Victor Affidavit. Furthermore, the Defendant’s fee schedule denials in this case do not rely upon the billing codes. Defendant denied payment of these bills because Plaintiff billed more than the maximum RVU per day per the WCFS Ground Rules, or Defendant paid a different provider for treatment performed on Assignor on the same date (Defendant’s Cross Ex. B). Accordingly, the rebuttal fee schedule affidavit does not successfully challenge the Defendant’s use of the WCFS. The court finds Defendant’s use of the WCFS proper.

Plaintiff also challenges Defendant’s denial of claims based upon lack of medical necessity. Generally, Plaintiff’s bills carry a presumption of medical necessity (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009]). On summary judgment, Defendant has the burden to rebut this presumption (Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], [App Term 2015]). If rebutted, the burden shifts back to the Plaintiff to demonstrate that the procedures were medically necessary (Id). Plaintiff argues that Defendant has not rebutted the presumption of medical necessity, and that Defendant has failed to provide a sufficient foundation for the authority of the IME reports.

The first IME report, written by Frank J McNally, D.C., a New York state licensed chiropractor, finds that “[t]here is no need for further chiropractic treatment. There is no need for further diagnostic testing, household help, medical supplies, special transportation, or massage therapy, from a chiropractic standpoint.” (Defendant’s Cross Ex. D). Dr. McNally specifies that the Assignor’s diagnosis is “[r]esolved cervical sprain/strain…[r]esolved lumbar sprain/strain.” (Id). He further notes that “[t]he claimant is able to work if he chooses to seek employment, from a chiropractic standpoint” (Id). Similarly, Rachel Saperstein, L.Ac. concludes that “no further acupuncture treatment is recommended or necessary…” (Defendant’s Cross Ex. D). She also notes “[t]he [Assignor] does not appear to be in any acute distress or discomfort…[a]mbulation and gait is normal, and the [Assignor] moves freely and without the assistance of any aid or appliance” (Id). These IME reports each provide a detailed accounting [*6]of the signatory’s personal evaluation of Assignor based upon documents specified and answers provided by the Assignor at the evaluation.

Plaintiff argues that the IME’s do not “explain how the treatment or services provided were ineffective and cite medical literature and standard practices in the community to support the opinion” (Plaintiff’s Opp., 37). However, Defendant’s IME’s do not state that the medical treatment provided was ineffective; on the contrary, they both state that the issues that the Assignor complained about have been resolved, and that Assignor does not require any further medical treatment for the condition caused by the accident. Accordingly, Plaintiff’s argument is misplaced. Plaintiff also argues that the IME reports are inadmissible because the physician’s signature was “computerized, affixed, or stamped” (Plaintiff’s Opp., 48). However, the signature pages of the affidavits clearly show that the signatures were handwritten and notarized.

The court finds Defendant has rebutted the presumption of medical necessity. The burden therefore shifts back to the Plaintiff to demonstrate medical necessity. Plaintiff submits an “Affidavit of Medical Necessity” from Mark Tischler, D.C., the owner of the Plaintiff corporation, which provides, in vague and conclusory terms, the benefits of acupuncture treatment, and the alleged weaknesses and shortcomings of Defendant’s IME reports (Plaintiff’s Opp. Ex. 1). Dr. Tischler defends the medical necessity of the “acupuncture treatments” but does not mention the medical necessity of the chiropractic treatments Plaintiff is seeking reimbursement for. Moreover, Defendant does not claim that all of the treatments rendered were medically unnecessary. Rather, the only treatments denied for lack of medical necessity were the treatments rendered after the IME reports were issued. Defendant also has produced a report from both a licensed chiropractor and a licensed acupuncturist to rebut the presumption of medical necessity. However, the only relevant portion of the Tischler Affidavit which relates to the post-IME condition of the Assignor is:

“[a]fter the IMEs performed by [D]efendant, Rivera, Eddie returned to my office, maintained that he still experienced significant pains and discomfort, and required medical treatment for injuries he suffered in the accident. Having re-evaluated Rivera, Eddie post-IME evaluation I concluded that he was still suffering from the effects and injuries sustained in the accident and further treatment was required given the fact that it reduced her [sic] pain.” (Plaintiff’s Opp. Ex. 1, 27)

These conclusory statements do not meet the burden of demonstrating that the treatments provided were medically necessary as the Tischler Affidavit does not describe Assignor’s physical condition, nor provide details of which medical treatments were necessary at that time (Dayan v Allstate Insurance, 49 Misc 3d 151[a]). As such, Plaintiff has not sufficiently demonstrated the medical necessity of the post-IME medical treatment on summary judgment (Id).

By submitting a detailed, fact-specific and comprehensive set of papers, Defendant has eliminated material issues of fact from this case and is entitled to summary judgment as a matter of law. Defendant’s Denial of Claim forms clearly demonstrate that Plaintiff submitted ten bills to Defendant. Certain bills were accurately reimbursed according to the WCFS for the medical care provided to Assignor, and certain bills were partially paid based upon the basic math required by the WCFS. Certain bills were partially denied based upon prior payment to a separate provider for care rendered on that same date. The calculations are clearly explained in the Victor affidavit and the Defendant’s Affirmation in support. Furthermore, certain bills were denied based upon a credible and unrebutted lack of medical necessity. In fact, Defendant [*7]concedes that it actually overpaid Plaintiff on multiple bills. Accordingly, Defendant has met its burden, and its motion for summary judgment is granted pursuant to CPLR 3212. Plaintiff’s motion for summary judgment, or to limit the issues of fact for trial is denied in its entirety. This action is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Footnotes

Footnote 1: Neither party disputes that the appropriate conversion factor according to the WCFS in this case is Region IV, in the amount of $5.78 (Defendant’s Cross Ex E 211-212).

Footnote 2: While Plaintiff argues that Defendant’s defenses should be dismissed, this blanket argument is not supported by any facts or specificity and that branch of Plaintiff’s motion is dismissed.

[*1]

Civil Court of the City of New York, Richmond County, March 22, 2022

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.

Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.^[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.

Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.

Footnotes

Index No. CV-709085-19/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Shapiro, L.L.C.
3361 Park Avenue, Suite 1000
Wantagh, NY 11793

Defendant’s counsel:
Gullo & Associates, LLP
520 86th Street
Brooklyn, NY 11209

I. Papers

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated July 1, 2020 (“Motion”) and electronically filed with the court on the same date. 1

II. Background

In a summons and complaint dated November 1, 2018 and file stamped by the court on April 25, 2019, Plaintiff sued Defendant insurance company to recover $381.48 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Warren from [*2]January 2, 2013 to January 15, 2013 and from January 18, 2013 to February 7, 2013, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved to dismiss the complaint on the ground that Plaintiff commenced its action after the applicable statute of limitations had expired (CPLR 3211[a][5]). Plaintiff did not oppose Defendant’s Motion. This matter was assigned to this Court for determination on November 17, 2021.

III. Discussion

“A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that . . . the cause of action may not be maintained because of . . . statute of limitations” (CPLR 3211[a][5]). First-party No-Fault causes of action are governed by the six-year statute of limitations for actions arising out of contract (CPLR 213[2]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 39 Misc 3d 147[A], 2013 NY Slip Op 50900[U] *1 [App Term 2d Dept 2013]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51720[U] *1 [App Term 2d Dept 2011]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] *1 [App Term 2d Dept 2011]).

For a motion to dismiss pursuant to CPLR 3211[a][5], Defendant bears the burden to show that “the time within which to commence the cause of action has expired” (Golden Jubilee Realty, LL v Castro, 196 AD3d 680, 683 [2d Dept 2021], see Siegler v Lippe, 189 AD3d 903, 904 [2d Dept 2020]; Shirom Acupuncture, P.C. v New York City Off. of Comptroller, 47 Misc 3d 150[A], 2015 NY Slip Op 50779[U] *1 [App Term 2d Dept 2015]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *1). Here, Defendant argued that a No-Fault cause of action accrued thirty (30) days from the submission of the bills or the date of denial. Contrary to Defendant’s contention, in a No-Fault action, the cause of action accrues thirty (30) days after Defendant’s receipt of the bills (EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51304[U] *1). In evaluating a motion to dismiss a complaint as time barred, the Court must accept the allegations in the complaint as true and resolve inferences in Plaintiff’s favor (Silver v. Silver, 162 AD3d 937, 939 [2d Dept 2018]; Cataldo v. Herrmann, 154 AD3d 641, 642 [2d Dept 2017]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1-2). In our instant case, Plaintiff’s complaint did not allege when or if Defendant received Plaintiff’s bills. In addition, Defendant’s “no-fault litigation claims” handler, Scarfino, attested that Defendant “[had] not received a properly executed No-Fault Application” as of May 28, 2020, the date of Ms. Scarfino’s affidavit (see Motion, Aff. of O’Shea, Ex. C).

It is well settled that the injured party or assignee of No-Fault benefits must submit proof of the claim to the insurer within 45 days of the date when health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]) and that insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). The accrual date [*3]of a No-Fault action may also be computed by adding forty-five (45) days from the date when health services were provided to the thirty (30) days when Defendant has to pay or deny the claim provided that the complaint also alleges Plaintiff’s timely submission of the claims and Defendant’s untimely denial of the claims (see Wexford Med., P.C. v Commerce Ins. Co., 40 Misc 3d 133[A], 2013 NY Slip Op 51193[U] *1 [App Term 1st Dept 2013]; Flatlands Acupuncture, P.C. Fireman’s Fund Ins. Co., 32 Misc 3d 17, 19-20 [App Term 2d Dept 2011]). Here, while the inartfully drafted complaint alleged that “there ha[d] been no payment” of the bill (Motion, O’Shea Aff. Ex. A at 4-5), it was completely silent as to Defendant’s denial of the claim, timely or not. It is noted, however, that Plaintiff also did not allege the date when the claim/bill was submitted to Defendant, other than stating that the bills were “submitted to [D]efendant more than 30 days ago” from the date of Plaintiff’s complaint which was dated as of November 1, 2018 (id.). Therefore, the accrual date of this No-Fault claim cannot be computed using this method. Since Defendant failed to establish the accrual date of Plaintiff’s claim, it cannot be determined if Plaintiff commenced action before expiration of the statute of limitations. Because Defendant did not meet its burden on its Motion to dismiss on the ground of statute of limitations, the Motion must be denied (see Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *2; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *2); however, Defendant is not left without any other remedy.

To the extent that Defendant sought costs against Plaintiff for failing to oppose Defendant’s Motion, this Court finds that such conduct had not been shown “to delay or prolong the resolution of the litigation or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2]) as Defendant contended (Zhuoya Luo v Wensheng Wang, 176 AD3d 1016, 1018 [2d Dept 2019]). Therefore, the Court also denies Defendant’s request for costs as a sanction for frivolous conduct (22 NYCRR 130-1.1[a]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint on the ground of statute of limitations is denied; and it is further

ORDERED that Defendant’s request for costs against Plaintiff is denied.

This constitutes the Decision and Order of the court.

Dated: December 21, 2021
Queens County Civil Court
____________________________

Honorable Wendy Changyong Li, J.C.C.

Index No. CV-703234-20/QU

Plaintiff’s counsel:

Mandell and Santora, PC

29 Broadway

Lynbrook, NY 11563

Defendant’s counsel:

Moira A. Doherty

999 Stewart Avenue, Suite 200

Bethpage, NY 11714

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 5, 2021 (“Motion“) and electronically filed with the court on January 21, 2021. 1

Plaintiff’s Affirmation in Opposition dated May 27, 2021 (“Opposition“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Reply dated June 4, 2021 (“Reply“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed on February 21, 2020, Plaintiff sued Defendant insurance company to recover $1,310.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Desocorro, plus attorneys’ fees and statutory interest (see Motion, Aff. of Slack-Dery, Ex. A). A notice of trial was filed on August 5, 2020. On January 21, 2021, Defendant moved for an extension of time to move for summary judgment, and for summary judgment dismissing Plaintiff’s complaint on the ground that the medical services provided to Desocorro were not medically necessary and alternatively, that the amount billed by Plaintiff had exceeded the applicable Workers Compensation fee schedules. Plaintiff opposed Defendant’s motion for summary judgment. An oral argument by both parties was conducted by this Court on November 8, 2021.

III. Decision

CPLR 3212[a] provides:

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Since the notice of trial was filed on August 5, 2020, December 3, 2020 was the deadline for moving for summary judgment (see id.). Because Defendant served its instant motion for summary judgment on January 21, 2021, it is untimely. Defendant candidly admitted to the lateness of its motion, but sought an extension of time (CPLR 2004; 2005). The Court of Appeals has held that good cause under CPLR 3212[a] “requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652 [2004]). Absent a showing of good cause for the delayed filing, this Court lacks discretion to consider a late motion even if it is meritorious and does not prejudice any party (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2d Dept 2019]; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2d Dept 2011]).

In our instant matter, the only explanation Defendant offered was that “Defendant’s counsel was prevented from serving the subject motion as [its] offices were closed due to the Coronavirus/Covid 19 pursuant to state requirements/regulations pertaining to professional services and non-essential businesses” (Motion, Slack-Dery Aff. ¶107). Executive Order 202.6, which went into effect on March 20, 2020, provided:

All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. Any essential business or entity providing essential [*2]services or functions shall not be subject to the in-person restrictions”

(9 NYCRR 8.202.6). Executive Order 202.8 (collectively with Executive Order 202.6, the “Executive Orders“) increased the in-person workforce reduction to 100% by March 22, 2020 (see 9 NYCRR 8.202.8). Thus, rather than closing non-essential businesses as Defendant contended, the Executive Orders prohibited in-person working but allowed businesses to operate remotely. In addition, by Administrative Order of the Chief Administrative Judge, on March 22, 2020, New York State Court prohibited paper and electronic filings for non-essential matters (see AO/78/20). However, effective May 4, 2020, New York State Court permitted electronic filing of, among other things, motions in pending matters (see AO/87/20). It is noted that Defendant did not claim its counsel’s offices could not work remotely or was unable to file its motion electronically.

Since Defendant failed to establish good cause for untimely filing its summary judgment motion, it must be denied (Bargil Assoc., LLC v Crites, 173 AD3d at 959; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d at 796), without consideration of its merits (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]; Giambona v Hines, 104 AD3d 811, 812 [2d Dept 2013]; Czernicki v Lawniczak, 25 AD3d 581, 581 [2d Dept 2006]; Long v Children’s Vil., Inc., 24 AD3d 518, 519 [2d Dept 2005]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for an extension of time to file a motion for summary judgment is denied; and it is further

ORDERED that Defendant’s motion for summary judgment is denied as untimely.

This constitutes the DECISION and ORDER of the Court.

Dated: December 6, 2021

Queens County Civil Court

_________________________________

Honorable Wendy Changyong Li, J.C.C.

Index No. CV-711542-20/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Law Offices of Goldstein, Flecker & Hopkins

2 Huntington Quadrangle, Suite 2N01

Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment in its claims:

Papers/Numbered

Defendant’s Notice of Motion as well as Certification and Verification dated November 20, 2020 (“Motion“) and electronically filed with the court on the same date. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated March 31, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Cross-Motion dated April 26, 2021 (“Opposition to [*2]Cross-Motion“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed July 17, 2020, Plaintiff sued Defendant insurance company to recover $2,141.70 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Browne, plus attorneys’ fees and statutory interest (see Motion, Aff. of Tapada, Ex. A). Defendant moved to dismiss the complaint on the grounds that Plaintiff submitted some claims untimely and other claims exceeded the fee amount prescribed by applicable fee schedules. Plaintiff cross-moved for summary judgment on its claims. An oral argument by both parties was conducted by this Court on November 15, 2021.

III. Discussion

The injured party or assignee of No Fault benefits must submit proof of the claim to the insurer within 45 days of the date health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]). Compliance with the 45-day proof of claim requirement is a condition precedent to a No Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 590 [2011]; 11 NYCRR § 65-1.1[d]). In addition, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

To support its motion, Defendant presented an affidavit sworn November 19, 2020, in which Victor (see Motion, Aff. of Tapada, Ex. C, Defendant’s Claims Associate, attested in detail to Defendant’s standard office practices and procedures for processing claims it received. Victor attested that Defendant submitted six (6) bills forming the claim for $2,141.70 in this case, which Defendant received respectively on September 16, 2019. A bill for $206.69 for services provided [*3]on July 10, 2019, a bill for $154.38 for services provided from July 9 to 13, 2019, a bill for $800.00 for services provided on July 9, 2019, a bill for $49.82 for services provided on July 11, 2019, and a bill for $235.31 for services provided on July 10, 2019 (“Early July 2019 Bills“) were denied on September 24, 2019 on the grounds that Plaintiff failed to timely submit proof of claim and that the bills exceeded the applicable fee schedule. Given the range of dates of service from July 9 to July 13, 2019, the deadline for filing proof of claim ranged from August 23 to 27, 2019. Regarding a bill for $898.94 for services provided July 30, 2019 (“Late July 2019 Bill“), Defendant paid $203.44 and denied the remainder of the claim on the ground that it exceeded the applicable fee schedule. The deadline for filing proof of claim for this bill was September 13, 2019. Copies of Plaintiff’s claim forms, Defendant’s denials of claim and explanations of review for each claim were attached to Victor’s affidavit. Defendant’s evidence demonstrated that Plaintiff untimely submitted all the claims for the Early July 2019 Bills. Thus, Defendant established that the Early July 2019 Bills were timely denied on the ground that proof of claim was untimely submitted (Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51750[U] *1 [App Term 2d Dept 2013]; Lecia Supply, Inc. v American Tr. Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50711[U] *1 [App Term 2d Dept 2013]; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51351[U] *1-2 [App Term 2d Dept 2012]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] *1 [App Term 2d Dept 2010]).

In opposition, Plaintiff argued that Defendant’s evidence was inadmissible, so that it was insufficient to establish timely denial of Plaintiff’s claim. While Plaintiff argued that Victor’s statements that Plaintiff untimely submitted its claims were hearsay because Defendant failed to present the forms upon which he based his statements (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1021 [2d Dept 2020]), as noted above, the denial of claim forms and explanations of review which Victor addressed in his affidavit were attached to his affidavit. Contrary to Plaintiff’s contention, Defendant’s denial of claim forms expressly advised that the untimely submission of claim would be excused if Plaintiff provided reasonable justification for the claim’s late submission, so complied with applicable regulations (11 NYCRR §§ 65-1.1[d]; 65-3.3[e]; Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 2013 NY Slip Op 51750[U] *1; Lecia Supply, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 50711[U] *1; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51351[U] *2; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449[U] *1).

Plaintiff also presented an affidavit dated March 29, 2021, in which Higgins, Plaintiff’s office manager, attested that the claims were mailed to Defendant on September 10, 2019. Higgins acknowledged that the bills were not sent “within 45 days as the result of an internal office error” and explained that assignor’s “insurance information was misplaced and the office had difficulty getting in touch with [assignor] to verify the insurance information” (Cross-Motion, Aff. of Enright, Ex. 2 at 2). The court rejects this conclusory explanation as it did not detail Plaintiff’s attempts to contact assignor to justify the delay of at least 14 days between the deadline to submit the claims and the date Plaintiff sent them (see Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] *1 [App Term 2d Dept 2014]). In any event, Plaintiff was required to provide “written proof providing clear and reasonable justification for the failure to comply with such time limitation” (11 NYCRR 65-1.1[d]; Synergy First Med., PLLC v MVAIC, 2014 NY Slip Op 50964[U] *1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] *1 [App Term 2d Dept 2010]).

Finally, Regarding the Late July 2019 Bill, for which Defendant paid a reduced amount and denied the remainder on the ground it exceeded the applicable fee schedule, Defendant raised no arguments how the Late July 2019 Bill exceeded the fee schedule in support of its motion. Defendant only identified in its Explanation of Review regarding this bill the fee code that should have been applied warranting reduction of the amount billed. Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). Here, Victor did not purport to be an expert in fee schedules in his affidavit. Since Defendant did not otherwise support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount of the Late July 2019 Bill (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion regarding the Late July 2019 Bill (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). As discussed above, Higgins admitted that the bills were not timely submitted and provided a conclusory explanation for the untimely submission of the bills, which the court rejected. Plaintiff also relied on Defendant’s denials of claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), but they demonstrated that the bills were untimely submitted and denied on that basis. Plaintiff presented no arguments that the Late July 2019 Bill complied with the applicable fee schedule and presented no expert evidence to support such a contention. Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is granted as to the Early July 2019 Bills (i.e., the bill for $206.69 for services provided on July 10, 2019, the bill for $154.38 for services provided from July 9 to 13, 2019, the bill for $800.00 for services provided on July 9, 2019, the bill for $49.82 for services provided on July 11, 2019, and the bill for $235.31 for services provided on July 10, 2019), but otherwise denied; and it is further

ORDERED Plaintiff’s cross-motion for summary judgment in its claims is denied.

This constitutes the Decision and Order of the court.

Dated: December 2, 2021

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.