APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 5, 2007, which granted defendant’s motion to dismiss to the extent of directing the deposition of Dr. Noel Howell.

PER CURIAM:

Order (Mitchell J. Danziger, J.), entered February 5, 2007, modified to vacate so much of the order as directed the deposition of Dr. Noel Howell, and as modified, affirmed, with $10 costs.

Defendant moved to dismiss on the ground that Dr. Noel Howell, alleged president of plaintiff provider, failed to appear for scheduled examinations under oath (EUOs). Even assuming that defendant’s letters requesting the examination of Dr. Howell constituted valid EUO requests, defendant failed to submit competent proof in admissible form to establish the dates of receipt of the subject claims, and hence, that its EUO requests were made in compliance with the time limits set forth in the verification procedures (see 11 NYCRR 65-3.5(b); 11 NYCRR 65-3.6(b); Bronx Med. Servs. P.C. v Windsor Ins. Co., 2003 NY Slip Op 50885[U][2003]). Inasmuch as noncompliance with the requests for EUOs was the sole ground for defendant’s motion to dismiss, there was no basis for Civil Court to direct a deposition of Dr. Howell.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 30, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez J.), dated October 18, 2005, which granted plaintiff’s motion for summary judgment in the principal sum of $6,139.59.

PER CURIAM:

Order (Julia I. Rodriguez J.), dated October 18, 2005, reversed, with $10 costs, motion denied and matter remanded for further proceedings.

In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, defendant raised a triable issue of fact by demonstrating that it timely denied plaintiff’s no-fault claim on the ground of lack of medical necessity based upon a peer review report. “The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided” (A.B. Med. Servs., PLLC v Geico Cas. Ins. Co., AD3d , 2007 NY Slip Op. 03635 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
[*2]
Decision Date: May 23, 2007

[*1]

Supreme Court, Appellate Term, First Department, May 4, 2007

APPEARANCES OF COUNSEL

Patrick Colligan, White Plains (Michael J. Palumbo of counsel), for appellant. Edward Shapiro, P.C., Wantagh (Steven F. Palumbo of counsel), for respondent.

{**16 Misc 3d at 114} OPINION OF THE COURT

Per Curiam.

Order, dated January 5, 2006, affirmed, with $10 costs.

In response to plaintiff’s interrogatories, defendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant’s verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence (see Bigelow v Acands, Inc., 196 AD2d 436 [1993]), defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it.

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignment (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Laufer v Lumberman’s Mut. Cas. Co., 9 Misc 3d 133[A], 2005 NY Slip Op 51632[U] [2005]). Since defendant failed to assert any other defenses, judgment was properly entered in favor of plaintiff.

McKeon, J.P., McCooe and Davis, JJ., concur.

—[*1] Quadrino & Schwartz, P.C., Garden City (Harold J. Levy of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered November 9, 2005, which granted defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint and denied plaintiffs’ cross motion for summary judgment and to amend the complaint, unanimously affirmed, without costs.

In their cross motion, plaintiffs never sought leave to amend the complaint to plead the essential elements of a cause of action to recover no-fault benefits for specific claims, or to replead the class action. Therefore, their argument for the right to replead is not properly before this Court. In any event, since the complaint and any proposed amendment were based on the same defective legal theory, the court did not err in dismissing the complaint for failure to state a cause of action and denying leave to amend because the “insufficiency or lack of merit is clear and free from doubt” (Noanjo Clothing v L & M Kids Fashion, 207 AD2d 436, 437 [1994]).

The court properly found that nurses’ reviews denying no-fault claims for lack of medical necessity were not per se invalid, since a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions provided that the reviewer’s training, observations and actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005], lv denied 4 NY3d 888 [2005]; Patil v Countrywide Ins. Co., 11 Misc3d 130[A], 2006 NY Slip Op 50306[U] [App Term 2006]).

We have considered plaintiffs’ remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Sullivan, Gonzalez and McGuire, JJ.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated January 30, 2006, which granted plaintiff’s motion for a directed verdict.

PER CURIAM

Order (Raul Cruz, J.), dated January 30, 2006, reversed, without costs, motion denied, and matter remanded for trial.

In this action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims here at issue. This was error, since the expert would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). Nor is defendant’s expert precluded from testifying because his opinion is based, at least in part, on his review of the assignors’ medical records. Plaintiff may not be heard to challenge the reliability of the assignors’ medical records and reports, which, in response to defendant’s verification requests, were affirmatively relied upon by plaintiff as proof of claim.

This constitutes the decision and order of the court. [*2]
Decision Date: February 26, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Eileen Rakower, J.), dated August 15, 2005, which denied its motion for summary judgment.

Order (Eileen Rakower, J.), dated August 15, 2005, modified to grant plaintiff partial summary judgment on its claims in the sums of $1,796.18 and $340; and as so modified, affirmed, without costs.

The peer review report relied upon by defendant in denying plaintiff’s $1,796.18 and $340 first party no-fault claims did not set forth an adequate factual basis and medical rationale for the reviewer’s determinations, and thus, was insufficient to defeat plaintiff’s prima facie showing of entitlement to summary judgment (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [2004]).

With respect to plaintiff’s $765 claim, the independent medical examination (IME) report of defendant’s neurologist was sufficient to raise an issue of fact as to the medical necessity of the acupuncture treatments billed for in connection with this claim.

This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: February 08, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez J.), dated January 31, 2006, which denied its motion to compel discovery.

PER CURIAM:

Order (Julia I. Rodriguez J.), dated January 31, 2006, reversed, with $10 costs, and defendant’s motion for discovery granted.

In this action to recover assigned first party no-fault benefits, defendant is entitled to discovery pertaining to its defenses of lack of medical necessity and fraudulent billing, including the deposition of Dr. Arkady Levitan. The record shows that defendant timely denied plaintiff’s claims. Plaintiff’s assignor appeared for an IME performed by defendant on April 25, 2003, which was timely scheduled within 30 days from the date of defendant’s receipt of the claim (see 11 NYCRR 65-3.5 [d]), and in a letter addressed to defendant dated May 9, 2003, plaintiff’s counsel acknowledged receipt of defendant’s denial, which was dated May 6, 2003, thereby establishing a timely denial of claim within 30 days after the IME was performed (see 11 NYCRR 65-3.8 [a][1]).

This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: November 9, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 25, 2006, affirmed, with $10 costs.

Plaintiff health care provider established a prima facie entitlement to summary judgment by submitting “evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Plaintiff sufficiently described a standard office procedure designed to ensured that the claims forms were properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). In opposition, defendant failed to raise any triable issues of fact.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered May 17, 2006, which denied its motion to vacate the notice of trial and statement of readiness.

PER CURIAM:

Order (Fernando Tapia, J.), entered May 17, 2006, affirmed, with $10 costs.

In this action seeking recovery of no-fault benefits totaling $1,118.58, the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

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Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 26, 2006, which permitted plaintiffs to withhold payments for claims that defendants-appellants had made before April 4, 2002 and dismissed plaintiffs’ causes of action for fraud and unjust enrichment regarding payments made before that date insofar as such causes of action were based on defendants’ improper corporate form, and order, same court and Justice, entered March 3, 2006, which denied defendants-appellants’ motion to strike plaintiffs’ affirmative defenses to defendants’ counterclaims insofar as said defenses were based on defendants’ improper corporate form, unanimously affirmed, without costs.

The Insurance Department regulation on claims for personal injury protection benefits (11 NYCRR 65-3.16 [a] [12]) states that “A provider of health care services is not [*2]eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York.” This regulation was initially promulgated to take effect on September 1, 2001, but implementation was stayed by court order until April 4, 2002. Relying on this regulation, the Court of Appeals has held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]), and that “no cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before . . . April 4, 2002” (at 322).

Mallela is dispositive as to plaintiffs’ fraud and unjust enrichment claims. Even if the quoted excerpt was dictum, we would find it highly persuasive. Plaintiffs’ attempt to distinguish Mallela by saying that their claims rest on the common law, not just on section 65-3.16 (a) (12), is unconvincing; in any event, the claims would not be cognizable (see Oxford Health Plans [NY] v BetterCare Health Care Pain Mgt. & Rehab, 305 AD2d 223 [2003]).

With respect to the bills that plaintiffs have not yet paid, the clear import of section 65-3.16 (a) (12) is that as of April 4, 2002, defendants were no longer eligible to be paid, even if they had already performed services. The very word “reimbursement,” used in the regulation, implies that the services had already been provided. Moreover, Mallela involved pre-April 4, 2002 claims, so it would be illogical to read that case as applying only to claims submitted on or after April 4, 2002 (see e.g. Metroscan Imaging P.C. v GEICO Ins. Co., 8 Misc 3d 829, 834 [Civ Ct, Queens County 2005], affd 13 Misc 3d 35 [App Term 2006]).

We do not find this allegedly retroactive application of the regulation problematic. “Ameliorative or remedial legislation . . . should be given retroactive effect in order to effectuate its beneficial purpose” (Matter of Marino S., 100 NY2d 361, 370-371 [2003], cert denied 540 US 1059 [2003]). The purpose of the regulations of which section 65-3.16 (a) (12) is a part was to combat fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862 [2003]). Indeed, the notice of adoption stated that “The Insurance Department is taking this action in order to implement a new regulation which will ensure that the public receives the benefits of reduced fraud and abuse provided by the proposed regulation at the earliest possible moment” (NY Reg, May 9, 2001, at 19).

Contrary to defendants’ argument, we do not find that section 65-3.16 (a) (12) impaired vested rights or created a new right. The law prior to Mallela was unclear, so defendants did not have a vested right to reimbursement (see Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325, 330 [1990]). Because there were decisions going both ways before Mallela, that case did not create a “new” right that had never before existed.

We are not persuaded by defendants-appellants’ claim that the allegedly retroactive application of section 65-3.16 (a) (12) would violate article I, § 10 (1) of the US [*3]Constitution. There was no contract between defendants and plaintiffs; defendants’ right to reimbursement from plaintiffs was purely a creature of regulation, viz., 11 NYCRR 65-3.11. Concur—Buckley, P.J., Mazzarelli, Williams, Gonzalez and Sweeny, JJ. [See 11 Misc 3d 810 (2006).]