[*1]

District Court of Nassau County, First District, May 10, 2019

APPEARANCES OF COUNSEL

Thomas Torto, New York City, for defendant.

The Russell Friedman Law Group, LLP, Lake Success, for plaintiffs.

Before the court is defendant’s motion for an order awarding it summary judgment pursuant to CPLR 3212 dismissing the complaint. Although defendant in its answer also asserts a counterclaim for return of money it previously paid to plaintiff Yan Moshe, no relief is sought regarding said counterclaim. Also before the court is plaintiffs’ cross motion for summary judgment in their favor. For the reasons stated herein, the motion and cross motion are both denied.

Summary judgment is drastic relief, as it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party [*2]opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

By order dated July 16, 2018, this court, in deciding a certain disclosure related dispute (Moshe v Country-Wide Ins. Co., 60 Misc 3d 923 [2018]), described the circumstances underlying this action as follows:

“Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of{**64 Misc 3d at 435} monies claimed due as loss of earnings for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC of which Moshe is the owner.

“There is no dispute that pursuant to the relevant provisions governing EUOs involving a first-party no-fault insurance claim(s) the deponent is entitled to ‘loss of earnings’ caused by attendance at the EUO (11 NYCRR 65-3.5 [e]).

“As alleged in plaintiffs’ complaint, on or about November 6, 2015—prior to the November 10, 2015 EUO—counsel for Excel advised counsel for Country-Wide Insurance Company that Moshe claimed a loss of earnings of $12,186.14 (complaint ¶ 24). In support thereof, and as previously requested by Country-Wide’s counsel (complaint ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint federal tax return which showed $320,000 in ‘Wages, salaries tips, etc.’ and an additional $2,604,942 in ‘Rental real estate, royalties, partnerships, S corporations, trusts, etc.’ (Complaint ¶ 24; defendant’s exhibit D [tax return].) Despite demand for confirmation that full payment would be made at the conclusion of the deposition (complaint ¶ 24), Country-Wide neither committed to payment nor rejected same (complaint ¶ 26). Instead, following the EUO, on or about March 10, 2016, Country-Wide remitted $1,280 as its calculation of Moshe’s loss of earnings (complaint ¶ 36).

“The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280).” (Id. at 924-925.)

In its answer defendant asserts a counterclaim for return of the $1,280 it paid to Moshe.

Initially, it is noted that there is no disagreement between the parties concerning the accuracy of the calculations that led to the two figures in the final quoted paragraph above. Comparing plaintiff’s interrogatory responses 2, 6, 7, 8, 10, 11, 12 and 15 (exhibit D to cross motion) with defendant’s interrogatory response 3 (exhibit E to cross motion) reveals an identical formula by the parties to determine the loss of earnings incurred as the result of Moshe’s appearance at the EUO. The{**64 Misc 3d at 436} formula used by both parties presumed 250 work days per year to reach the figure for one day of lost earnings (52 weeks multiplied by five working days per week = 260 work days less 10 work days for vacation = 250 days). The parties then took their respective disputed earnings figure—either $320,000 (defendant’s claim) or $320,000 plus $2,604,942 (plaintiffs’ claim)—and divided it by 250 to reach their respective loss of earnings figure.

As defendant does not move for summary judgment on its counterclaim, the parties couch as the only issue to be decided whether or not any or all of the additional $2,604,942 claimed [*3]by plaintiff Moshe can be rightfully considered in their formula for calculation of lost earnings pursuant to 11 NYCRR 65-3.5 (e).

The within controversy—as portrayed in supporting and opposing papers—is perhaps best characterized as the difference between the broader term “loss of income” (essentially sought by plaintiffs) and the narrower term “loss of wages” (sought by defendant) in deciding which qualifies as “loss of earnings” within the meaning of 11 NYCRR 65-3.5 (e). In this regard, it is noted that none of the scheduling correspondence by counsel for either party settle the issue, but merely state that “loss of earnings” would be compensated as a result of Mr. Moshe’s attendance at the EUO.^[FN*]

Counsel for plaintiffs argues that the additional sum of $2,604,942 in “[r]ental real estate, royalties, partnerships, S corporations, trusts, etc.” should be included in the parties’ formula used to calculate plaintiffs’ claim for loss of earnings. In support, plaintiffs provide an affidavit by Moshe in which he states, in self-serving and conclusory fashion, that

“I was the owner of four different companies . . . As the president, I managed the day to day operations of each of these companies. As such, my presence and availability was a vital component to the daily operations and income generation for each business. Running these companies is what I did for a living.” (Moshe aff in support ¶ 6.)

Plaintiff Moshe’s attestations, however, do not demonstrate the consequences in earnings loss caused by his having been unavailable{**64 Misc 3d at 437} on November 10, 2015 (or whatever the actual period of time he was unavailable due to attendance at the EUO in question).

Conversely, counsel for defendant argues that any earnings above the $1,280 already paid to Moshe was “rental income [which] is passive and does not constitute ‘loss of earnings’ or wages” as same “would be paid regardless of whether he attended the EUO” (affirmation in reply ¶ 6). Counsel, however, provides nothing of probative value to establish his conclusion that Moshe’s tax reporting of $2,604,942 in “[r]ental real estate, royalties, partnerships, S corporations, trusts, etc.” was limited to rental income or that he did not lose rental income by being unavailable on November 10, 2015.

Consistent with the clear language of 11 NYCRR 65-3.5 (e) and regardless of the formulaic manner in which the parties approach the calculation of lost earnings, the focus should be on the actual monetary loss incurred by reason of plaintiff’s attendance at the EUO. As defined by PJI 2:290, albeit in the context of personal injury, loss of earnings means “reduction in . . . capacity to earn money.” That Moshe was entitled to payment of lost earnings caused by attendance at an EUO and not a physical injury is irrelevant to the meaning of the term and, hence, the method of calculation.

Movant and cross-movants fail to provide any particularity or evidence of what Moshe’s companies do, what was happening on November 10, 2015, or why Moshe’s unavailability for an undisclosed number of hours on that date caused earnings loss. Passivity alone is not the criteria—a day trader may be involved with purely passive assets but the inability to trade on a particular day may have consequences in monies lost that otherwise would not have been. Given the wholesale absence of relevant evidence supporting the parties’ respective claims, neither side has made the requisite prima facie showing.

As an issue of fact at the heart of the instant action remains unresolved, both defendant’s motion and plaintiffs’ cross motion for summary judgment are denied.

Footnotes

Footnote *:Insofar as plaintiffs’ attorney used the phrase “lost wages” in a letter to defendant’s counsel dated August 17, 2015, same is described as a “drafting oversight” (affirmation in support ¶ 34) and is in any event non-binding and without consequence.

[*1]

District Court of Nassau County, First District, July 16, 2018

APPEARANCES OF COUNSEL

Thomas Torto, New York City, for defendant.

The Russell Friedman Law Group, LLP, Lake Success, for plaintiffs.

By handwritten stipulation signed by counsel and “So Ordered” by this court on January 18, 2018, a prior disclosure related motion was withdrawn and a submission schedule was entered into to allow consideration of “the sole remaining disclosure issue” without the need to re-notice a new motion or amend the motion being withdrawn. As characterized by the so ordered stipulation, said issue is “whether or not defendant is entitled to depose plaintiff Yan Moshe (Moshe) pursuant to defendant’s Notice to Take his deposition which notice is objected to by plaintiff.”

Thus, before this court is what may be deemed defendant’s motion to compel the deposition of Moshe (see generally CPLR 3124; see also CPLR 3103 [a]).

Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earnings for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC of which Moshe is the owner.

There is no dispute that pursuant to the relevant provisions governing EUOs involving a first-party no-fault insurance claim(s) the deponent is entitled to “loss of [*2]earnings” caused by attendance at the EUO (11 NYCRR 65-3.5 [e]).

As alleged in plaintiffs’ complaint, on or about November 6, 2015—prior to the November 10, 2015 EUO—counsel for Excel advised counsel for Country-Wide Insurance Company that Moshe claimed a loss of earnings of $12,186.14 (complaint ¶ 24). In support thereof, and as previously requested by Country-Wide’s counsel (complaint ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint federal tax return which showed $320,000 in “Wages, salaries tips, etc.” and an additional $2,604,942 in “Rental real estate, royalties, partnerships, S corporations, trusts, etc.” (Complaint ¶ 24; defendant’s {**60 Misc 3d at 925}exhibit D [tax return].)^[FN*] Despite demand for confirmation that full payment would be made at the conclusion of the deposition (complaint ¶ 24), Country-Wide neither committed to payment nor rejected same (complaint ¶ 26). Instead, following the EUO, on or about March 10, 2016, Country-Wide remitted $1,280 as its calculation of Moshe’s loss of earnings (complaint ¶ 36).

The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a “second” deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due to him for his loss of earnings incurred by his appearance at the first deposition.

Plaintiffs oppose defendant’s current notice to again depose plaintiff Moshe, contending that the first deposition should have included the “loss of earnings” issue. In effect, plaintiffs would have this court find that defendant’s failure to address the loss of earnings issue in the context of the first-party no-fault insurance claim constitutes a waiver of defendant’s right to now depose him in the context of this action.

The issue appears to be one of first impression.

It is beyond cavil that the purpose of an EUO of a medical provider in the context of a claim for first-party no-fault insurance benefits is to obtain discovery material and necessary to the defense of said claim (North Bronx Med. Health Care v Auto One Ins. Co., 53 Misc 3d 148[A], 2016 NY Slip Op 51625[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], citing inter alia CPLR 3101 [a]). Accordingly, this was the subject of the examination conducted by defendant on November 10, 2015, and defendant carrier will not be faulted for limiting its deposition to the issues for which the deposition was properly sought.

While 11 NYCRR 65-3.5 (e) establishes and safeguards a medical provider’s right to be paid for appearing at an EUO upon a claim for first-party no-fault insurance benefits, the governing provisions of this section speak in terms of reimbursement. It has accordingly been held that a deponent may{**60 Misc 3d at 926} not seek a flat, up-front fee before appearing (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th[*3]& 13th Jud Dists 2016], citing 11 NYCRR 65-3.5 [e]). In view of same, the failure of defendant to agree upon the amount of payment in advance of the EUO despite plaintiffs’ efforts in this regard is of no consequence.

That a dispute might have been anticipated over the sufficiency of defendant’s eventual calculation of deponent’s loss of earnings does not serve to broaden the scope of that deposition beyond the then pending no-fault insurance benefits claim. Rather, the parties’ inability to agree on the amount to be reimbursed rendered the within plenary action the appropriate vehicle for adjudication of this ongoing dispute.

With the commencement of a plenary action comes the defendant’s entitlement to relevant discovery in defense thereof (CPLR 3101 [a]).

Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault insurance benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 11 NYCRR 65-3.5 (e). This is so regardless of which party ultimately prevails in fixing the amount of Moshe’s loss of earnings for his appearance at the first deposition.

CPLR 3103 (a) provides that

“[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”

Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant’s right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.{**60 Misc 3d at 927}

Accordingly, in the discretion of the court plaintiffs are awarded a protective order against the deposition of Yan Moshe. However, defendant may serve interrogatories upon plaintiffs (see CPLR 3130 et seq.).

Footnotes

Footnote *:Although the reported figures are for both Moshe and his spouse, plaintiffs’ counsel maintains that all but $120,000 in the combined income shown on the joint return belongs to Moshe (mem of law at 5).

CV-011318-14

Law Offices of Joseph B. Strassman, attorneys for Plaintiff, 11 Clinton Avenue, Rockville Centre, New York 11570, (516) 766-7007; Richard T. Lau & Associates, attorneys for Defendant, P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, New York 11753-9040, (914) 229-6000.

The following named papers numbered 1 to 4

submitted on this Motion on April 24, 2017

papers numbered

No-Fault Notice of Motion for Summary Judgment1Attorney’s Affirmation2

Reply Affirmation3

Memorandum of Law4

The plaintiff commenced this action seeking reimbursement from the defendant for chiropractic treatment she received as a result of a motor vehicle accident which occurred on May 8, 2008. The defendant moves for summary judgment, pursuant to CPLR 3212, on the ground that the plaintiff executed an Assignment of Benefits to the treating doctor, and as such, lacks standing to maintain this action.

It is uncontroverted that the plaintiff was injured in an automobile accident and received chiropractic treatment from a Christopher Skurka, D.C. It is also uncontroverted that the plaintiff executed an Assignment of Benefits to Dr. Skurka, of her no-fault benefits. As such, the defendant moves for summary judgment.

Summary judgment is drastic relief – – it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing, the burden shifts to the non-moving party, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require a trial of the action (see Zuckerman v New York, 49 NY2d 557 [1980]).

In support of the instant motion, the defendant submits, inter alia, the affirmation of Jeremey R. Maline, Esq., an attorney of the law office of Richard T. Lau & Associates; the affidavit of Beverly A. Croteau, a Claim Representative for State Farm Mutual Automobile Company; and a copy of an Assignment of Benefits signed by the plaintiff and Dr. Shurka D.C., dated May 29, 2008, establishing that the plaintiff assigned to Dr. Skurka D.C., all of her “rights privileges and remedies to payment for health care services” to which she would otherwise be entitled to (see Plaintiff’s Memorandum of Law, Exhibit A). The defendant contends that as a result of the Assignment to Dr. Shurka, D.C., the plaintiff’s action must be dismissed.

In reliance thereon, the defendant cites Lopes v Liberty Mutual Insurance Company, 24 Misc 3d 127(A) (App Term, 2nd, 11th, and 13th Jud Dists 2009). In Lopes, the plaintiff sought reimbursement from her insurance company after making payments directly to several medical providers. The court granted the defendant’s motion in part, finding that the executed assignment of benefits deprived the plaintiff of standing. In doing so, the court stated that for an assignment to be valid, it must assign “all rights, privileges and remedies to the assignee.” The court further held:

“The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance Department Regulations [11 NYCRR]§65-3.11[a])… An insurer [*2]seeking dismissal pursuant to CPLR 3211(a)(7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment…. Defendant submitted documents that clearly assign plaintiff’s claims for services rendered… . As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211(a)(7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.”

In the case at bar, the New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form signed by the plaintiff on May 29, 2008, provides:

“I, Carla Santorello, (“Assignor”) assigns to Dr. Shurka (“Assignee”) all rights privileges and remedies to payment for health care services provided by assignee to which I am entitled under Article 51 (the No-Fault statute) of Insurance Law.

The assignee hereby certifies that they have not received any payment from or on behalf of the Assignor and shall not pursue payment directly from the Assignor for services provided by said Assignee for injuries sustained due to the motor vehicle accident which occurred on 5/8/08, notwithstanding any prior written agreement to the contrary.

This agreement may be revoked by the assignee when benefits are not payable based upon the assignor’s lack of coverage and/or violation of a policy condition due to the actions or conduct of the assignor.”

Here, the subject Assignment clearly and unambiguously transferred the plaintiff’s rights for the reimbursement of no-fault benefits to Dr. Skurka, D.C. As such, the plaintiff’s cause of action seeking reimbursement of those medical expenses cannot be sustained, given her lack of standing (see also Hernandez v Kalpakis, 2014 WL 12680588 [Supreme Ct, Nassau County]). The defendant having met its burden, the burden shifts to the plaintiff to establish a triable issue of fact.

However, in opposition, counsel for the plaintiff wholly fails to address the issue of the plaintiff’s lack of standing to sue based upon the assignment. Moreover, no affidavit is submitted from the plaintiff herself. The attorney’s affirmation alone is insufficient to raise an issue of fact warranting a trial (see Barbieri v D’Angelo, 128 AD2d 661[2d Dept 1987]). Accordingly, the defendant’s motion for summary judgment is granted, and the action is dismissed.

This constitutes the decision and order of the court.

Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 21, 2017

CV-032833-12

Russell Friedman & Associates, LLP, Attorney for Plaintiff, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042

McDonell & Adels, PLLC, Attorney for Defendants, 401 Franklin Ave., Garden City, New York 11530

The instant action was commenced by the plaintiff on October 4, 2012, seeking $879.73 for health services provided to Sakeena Carter, as a result of injuries allegedly sustained in an automobile accident on December 18, 2010. In December 2012, defendant USAA commenced an action in Supreme Court, Kings County, seeking a declaratory judgment, claiming that certain specified motor vehicle accidents were uncovered events. In September 2013, Hon. Fred Hirsh issued an order staying this action, pending a final determination of the declaratory judgment action. Thereafter, a judgment was issued in the Supreme Court action upon default of the parties, wherein it was determined that, inter alia, the accident on December 18, 2010 was an intentional and uncovered event, and that USAA had no duty to provide no-fault coverage for same.

Plaintiff Hillside Open MRI, PC and its assignor, Sakeena Carter, were both named in the declaratory judgment action. However, it was noted on the order that “[t]his defendant [Sakeena Carter] has not been served with the Summons and Complaint. Plaintiff is seeking court permission to serve via publication.” The court [*2]ordered “that USAA is granted an extension of time to effectuate substituted service via publication upon the following defendants: Sakeena Carter, ….” In a footnote on page 3 of the defendant’s current reply papers, it is stated that the defendant’s motion for a default judgment against Sakeena Carter, who was allegedly served via publication, is returnable in Supreme Court on September 18, 2015. This court has no information regarding the status of that matter.

The defendant presently seeks an order granting summary judgment dismissing the plaintiff’s complaint pursuant to CPLR 3212(a), on the ground that it has previously been determined that the plaintiff is not entitled to recover and is, therefore, collaterally estopped from relitigating the issue of coverage.

Under the particular circumstances presented here, the defendant’s motion is granted to the extent that the parties are directed to appear for a Conference before this court at 99 Main Street, Hempstead, NY atA.M. on theday of, 2015.

The foregoing constitutes the decision and order of the court.

SO ORDERED:
Dated: November 9, 2015

Hon. Ignatius L. Muscarella
District Court Judge

cc: Friedman, Harfenist, Kraut & Perlstein, Esqs.
McDonnell & Adels, PLLC
ILM:jc

CV-003151-14

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Attorneys for Plaintiff, 1111 Marcus Avenue, Suite LL26, Lake Success, New York 11042, 516-248-2929; Law Office of Printz & Goldstein, Attorneys for Defendants, 170 Froehlich Farm Blvd., Woodbury, New York 11042, 516-714-7274.

The following named papers numbered 1 to 2

submitted on this Motion on June 30, 2015

papers numbered

Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2

Opposition to Motion

Reply Papers to Motion

The petitioner moves for an order granting summary judgment in favor of the plaintiff, VILLAGE CHIROPRACTIC, for the recovery of No-Fault benefits for services rendered by the plaintiff to plaintiff’s assignor, IRIZARRY, KENNY, in the amount of $4,057.55, upon the grounds that there are no triable issues of fact and no merit to any of the defenses raised by GEICO. The defendant, GEICO, cross-moves for summary judgment.

On 10/1/10 the plaintiff’s assignor, IRIZARRY, KENNY, was involved in a motor vehicle accident and was entitled to No-Fault benefits under GEICO’s policy. On 10/5/10 the plaintiff’s assignor, IRIZARRY, KENNY, visited the medical offices of the [*2]plaintiff, VILLAGE CHIROPRACTIC, and began to receive treatment for injuries sustained in the motor vehicle accident on 10/1/10. The plaintiff’s assignor, IRIZARRY, KENNY, received medical treatments from the plaintiff, VILLAGE CHIROPRACTIC, from 10/5/10 to 6/7/11 about twice a week. With the exception of one claim for $202.20 received by the defendant, GEICO, on 1/24/11 that was denied because its submission was past the requisite 45-day period, the defendant, GEICO, paid either in full or a reduced amount, allegedly in accordance with fee schedules, for all claims submitted between 10/5/10 and 1/7/11. On 1/4/11 the plaintiffs assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each examination was conducted by separate doctors; Thomas P. Nipper, M.D., a board certified orthopedic, Robert Snitkoff, D.C., a N.Y.S. licensed chiropractor, and Irina Rimel, L.Ac, a N.Y.S. licensed acupuncturist. The affirmed reports of each doctor concluded that the plaintiff’s assignor, IRIZARRY, KENNY, no longer required any medical attention from injuries sustained in the motor vehicle accident on 10/1/10. The defendant, GEICO, notified all known providers and ceased all benefits on 1/7/11 due to lack of medical necessity. The plaintiffs assignor, IRIZARRY, KENNY, continued to receive treatment from the plaintiff, VILLAGE CHIROPRACTIC, until 6/7/11 and all claims submitted by the plaintiff, VILLAGE CHIROPRACTIC, to the defendant, GEICO, were denied due to lack of medical necessity and for not being in accordance with fee schedules.

Summary judgment should only be granted when there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such prima facie showing requires denial of motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce admissible evidentiary proof that establishes the existence of material issues of fact, which necessitates a trial (see Zuckerman v. New York, 49 NY2d 557 [1980]). The issues at hand in this case have been separated and ruled on separately.

On 1/24/11 the defendant, GEICO, received a claim in the amount of $202.20 from the plaintiff, VILLAGE CHIROPRACTIC, for services rendered to the plaintiff’s assignor, IRIZARRY, KENNY, on 10/26/10. NY Insurance law states that no claim should be submitted later than 45 days after the date services are rendered (see 11 NYCRR 65-1.1). Plaintiff, VILLAGE CHIROPRACTIC, failed to comply with the No-Fault regulations and summary judgment is denied with respect to the claim of $202.20. (see NY Arthroscopy & Sports Medicine PLLC v. Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 836 N.Y.S.2d 753 [App Term, 1st Dep’t 2007]).

On 1/4/11 plaintiff’s assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each doctor concluded and affirmed that the plaintiff’s assignor, IRIZARRY, KENNY, needed no further medical attention for the injuries sustained in the motor vehicle accident on [*3]10/1/10. On 1/7/11 the defendant, GEICO, ceased all No-Fault benefits and subsequent claims forms were denied. The defendant, GEICO, properly cut off all payments based on the I.M.E. reports establishing lack of medical necessity. It was then incumbent upon the plaintiff to refute the I.M.E. reports conclusion in his affidavit. The defendant is mistaken when they alleged, “an affidavit or affirmation of a party who is a principal of an action must be disregarded”. An affidavit would be sufficient if the owner Frederick Giovanelli, D.C., commented on the issue of medical necessity. However, a review of the affidavit of Frederick Giovanelli, D.C. does not refute the defendants, GEICO, medical examiners’ reports. Defendant, GEICO, established prima facie case of lack of medical necessity based on I.M.E. that remain unanswered by plaintiff, VILLAGE CHIROPACTIC. Partial summary judgment is, therefore, awarded to the defendant, GEICO (see MIA Acupuncture, P.C. V. PRAETORIAN Ins. Co., 35 Misc 3d 69, 946 N.Y.S.2d 395 [App. Term, 2nd, 11th and 13th Jud. Dists. 2011]).

From 10/29/10 to 1/7/11 the defendant, GEICO, received multiple claims forms from the plaintiff, VILLAGE CHIROPRACTIC, five of which were reduced and then paid based on applicable fee schedule’. An affidavit from defendants, GEICO, claims examiner, Greer Carty, demonstrates that these claims were reduced based on applicable fee schedule’, however, this alone is not sufficient to establish defendants claim that “The billed amount is over the allowable charge pursuant to the NY Fee Schedule and pursuant to article 51 section 5108,” as set forth in Geico’s denial (see MIA Acupuncture, P.C. v. PRAETORIAN Ins. Co., supra,). Plaintiff’s complaint states that the billed amounts were within applicable fee schedules under Workers’ Compensation Law and that the reason for denial is without merit. The court finds issues of fact requiring trial on the claim regarding fee schedules.

The plaintiff’s motion for summary judgment and the defendants cross motion for summary judgment are decided as follows; all claims set forth by the plaintiff are dismissed with prejudice except the five claims that were reduced by the defendant, GEICO, on the basis of applicable fee schedule because issues of fact exist requiring a trial.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:August 17, 2015

cc:Abram, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP

Law Office of Printz & Goldstein

SF/mp

CV-020834-13

Russell Friedman & Associates, LLP, Attorneys for Plaintiff, 3000 Marcus Avenue, Suite 2E1, Lake Success, New York 11042-1005, 516-355-9694;

Abrams, Cohen & Associates, Attorneys for Defendant, 5 Hanover Square, Suite 1601, New York, New York 10004, 646-449-7490.

This is a case of first impression. Should this court follow the holding of the Second Department that claimants are excused from filing claims for no-fault benefits when an insurance company disclaims coverage for no-fault benefits based upon a medical review? In the alternative, should this court follow the opinion of the Office of the General Counsel of the State of New York Insurance Department, which came after the holding of the Second Department, [*2]that claimants submitting for no-fault benefits must timely submit claims in order to be eligible for the payments of benefits even after receiving a denial of all future benefits by the insurance carrier?

Motion by State Farm

Defendant State Farm moves for summary judgment on the grounds that since plaintiff Greater Forest Hills did not submit proof of claim for $3,576.83 pursuant to NYCRR 65-1.1, plaintiff cannot recover for physical therapy rendered to its assignor Jacinto Sanchez.

Facts

Plaintiff seeks to recover the sum of $3,576.83 for physical therapy rendered to its assignor Jacinto Sanchez for the period of August 1, 2011 through February 1, 2012. Mr. Sanchez allegedly sustained personal injuries in an automobile accident on November 22, 2010. Plaintiff claims that it properly billed defendant for said service.

Defendant submits the affidavit of Carol Anne Slack, dated March 6, 2014, who is presently a claim representative and has been employed by defendant for over 21 years. Ms. Slack states that defendant never received the bill for $3,576.83 for services rendered August 1, 2011 through February 1, 2012.

Plaintiff submits no proof that it ever sent the bill to State Farm.

Defendant issued the Denial of Claim form dated June 9, 2011, which denied all New York No-Fault benefits effective June 10, 2011, because:

In accordance with the independent medical examination performed by Jacquelin Emmanuel MD on 5/23/11, the injured party is no longer in need of additional Orthopedic treatment; in addition, the cervical and lumbar injuries are resolved and the right shoulder impingement injuries are unrelated to the accident. Therefore, all New York No-Fault benefits pertaining to treatment to the above injuries are denied effective 6/10/11. A copy of this examination is enclosed for your review and a copy of the report is being sent to each party that is carbon copied on the NF10.

Decision

Defendant contends that since plaintiff never submitted the necessary claim form for the services rendered pursuant to NYCRR 65-1.1, plaintiff is barred from pursuing this action.

Plaintiff contends that once defendant repudiated any further responsibility to pay no-fault claims, plaintiff was no longer obligated to submit proof of claim forms to the defendant. Plaintiff cites Matter of State Farm Ins. Co. v. Domotor, 266 AD2d 219, 697 NYS2d 348 (2nd [*3]Dept 1999) to support its position. In Matter of State Farm Ins. Co. v. Domotor, State Farm terminated all further no-fault benefits after its medical experts determined that treatment was no longer necessary. The Second Department held that an insurance carrier can no longer insist that no-fault claims for services rendered be timely submitted once its disclaimed coverage:

An insured’s failure to provide timely written proof of loss is generally an absolute defense to an action to recover on the policy (see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 NY2d 201). However, this absolute defense may be waived (see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., supra; Treptow v. Exchange Mut. Ins. Co., 106 AD2d 767). An insurance carrier may not insist upon adherence to the terms of its policy after it has repudiated liability on the claim by sending a letter disclaiming coverage (see, Rajchandra Corp. v. Title Guar. Co., 163 AD2d 765, 769) for “[o]nce an insurer repudiates liability . . . the [in]sured is excused from any of its obligations under the policy” (Ocean-Clear, Inc. v. Continental Cas. Co., 94 AD2d 717, 718).

Matter of State Farm v. Domotor, supra, was recently cited with approval by the court in State Farm Mut. Auto. Ins. Co. v. Urban, 78 AD3d 1064, 912 NYS2d 586 (2nd Dept 2010).

In NY Medical Health, P.C. v. New York City Transit Authority, 24 Misc 3d 1219(A), 897 NYS2d 671, 2009 WL 2058664 (NY City Civ Ct, 2009) the Court followed the rationale of Matter of State Farm v. Domotor, supra, to a situation involving the New York City Transit Authority (self-insurer) which denied liability for no-fault benefits. The Transit Authority denied liability because the accident was caused by the injured party driving a bike into a disabled bus that was standing still, i.e.; in other words, the accident did not arise out of the use or operation of the Transit Authority motor vehicle. The Court upheld the arbitration award to the plaintiff because plaintiff no longer had a duty to submit timely claims to defendant once defendant denied coverage and all liability for no-fault benefits.

Defendant cites the opinion dated September 2, 2004, from the Office of the General Counsel of the State of New York Insurance Department. The opinion disagrees with the holding of Matter of State Farm v. Domotor, supra. The opinion states that the plaintiff must timely submit claims for no-fault benefits even when the insurance carrier has denied all future benefits based upon a medical exam. The opinion states:

Question Presented

After a No-Fault insurer has denied all future benefits for continued treatment by a health provider of an eligible injured person based upon the negative findings of an insurer’s medical examination of that person, must the insurer continue to issue denials for claims for continued treatment which are submitted subsequent to the issuance of the denial for all future benefits?

Conclusion

Yes. Pursuant to Section 5106(a) of the Insurance Law and Sections 65-3.8(a)(1) and 65-3.8(c) of Department No-Fault Regulation 68, whenever a No-Fault provider submits a claim for reimbursement to an insurer, the insurer must pay or deny the claim within 30 calendar days after receipt of proof of claim. There is no provision in either the No-Fault statue or regulation which relieves an insurer of the obligation to pay or issue a denial on all claims for benefits submitted. Neither does the statute or regulation relieve an applicant for benefits of their responsibility to submit claims in order to be eligible for the payment of benefits, even after receiving a denial of all future benefits.

Defendant urges this court to follow the said opinion from the State Insurance Department because the Court of Appeals generally gives deference to the opinions of the State Insurance Department; see paragraph 8 of the defendant’s reply affirmation, dated October 9, 2014, which states:

The Court of Appeals has generally given deference to the opinions of the regulatory agencies. See State Farm Mutual Automobile Insurance Co. v. Robert Mallela, 4 NY3d 313 (2005) (giving deference to the Insurance Department which had recently promulgated revised No-Fault regulations); New York State Assn. of Life Underwriters, 83 NY2d 353 (1994); Gaines v. New York State Division of Housing and Community Renewal, 90 NY2d 545 (1997); Rodriguez v. Perales, 86 NY2d 361 (1995); Elcor Health Services v. Novello, 100 NY2d 273 (2003); Morris v. County Bd. of Assessors, 35 NY2d 624 (1974). This has been true of the Insurance Department specifically. See John Paterno, Inv. v. Curiale, 88 NY2d 328 (1996). Such interpretations are generally accorded great weight by the Courts. See Udall v. Tallman, 380 U.S. 1 (1965); Lyng v. Secretary of Agriculture, 476 U.S. 926 (1976); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62 (1969); State Farm Mutual Automobile Ins. Co v. Levin, 263 AD2d 233 (3rd Dept. 2000), appeal denied, 95 NY2d 754; Allstate Ins. Co. v. Libow, 106 AD2d 110 (2nd Dept., 1984).

Although this court is somewhat sympathetic to the position of defendant presented herein, this court is constrained to follow the Second Department that plaintiffs are not obligated to timely submit claims for no-fault benefits once an insurance carrier denies coverage.

Conclusion

This court urges defendant to appeal this decision to have the Second Department review this matter in light of the position of the State Insurance Department.

Thus, the motion for summary judgment is denied. Plaintiff can proceed to press its no-fault claim for services rendered even though it did not timely submit the necessary claim form because this requirement became unnecessary when defendant denied all further coverage for no-[*4]fault benefits based upon the independent medical examination of Dr. Jacquelin Emmanuel.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:November 10, 2014

[*1]

District Court of Nassau County, First District, September 8, 2014

APPEARANCES OF COUNSEL

Robert P. Macchia & Associates for defendant.

Israel, Israel & Purdy, LLP for plaintiff.

Defendant moves for summary judgment in this action to recover first-party no-fault benefits.

Background

This motion raises the issue of whether a no-fault carrier that has previously denied the eligible injured party (EIP) all further no-fault benefits based upon an independent medical examination (IME) can request the EIP appear for an examination under oath (EUO) when a medical provider submits claims for payment of no-fault benefits for medical treatment provided after the IME cutoff.

Cecilio Pablo-Rodriguez was injured in a motor vehicle accident that occurred on January 9, 2011. He received treatment for the injuries sustained in the motor vehicle accident from Hempstead Regional Chiropractic, P.C. and Orthomed Care, P.C.

He assigned his right to receive no-fault benefits for the treatment provided by Hempstead to Hempstead and for treatment provided by Orthomed to Orthomed which submitted the claims for treatment provided to Rodriguez to defendant Allstate Insurance Company for payment.

The claims involved in this action and motion involve chiropractic treatment provided to Rodriguez by Hempstead during{**45 Misc 3d at 748} the period March 12, 2012 through April 23, 2012 and physical therapy treatment provided to Rodriguez by Orthomed during the period March 26, 2012 through April 23, 2012.

The parties do not dispute the claims were timely filed and timely denied.

The denials for the claims involved in this action all denied the claims on the grounds Rodriguez failed to appear for an EUO scheduled for July 28, 2011, August 15, 2011 and September 19, 2011. The denials also stated the claims were being denied because the amounts billed were not in accordance with the no-fault fee schedule and on the grounds of any previously issued denial.

By letter dated July 15, 2011, Allstate’s attorney requested Rodriguez appear for an EUO on July 28, 2011.

By letter dated July 27, 2011, Rodriguez’s attorney advised the attorney for

Allstate Rodriguez would not be produced for an EUO on July 28, 2011 or at any other time because all no-fault benefits had previously been denied based upon an IME.^[FN*] The letter further stated Rodriguez would not be produced because there was already pending litigation. The letter stated if there was information relevant to the claim that was needed other than an EUO, Rodriguez’s attorney would work with Allstate’s attorney in obtaining or providing the information.

Despite the letter from Rodriguez’s attorney advising Allstate’s attorney Rodriguez would not be produced for an EUO on July 28, 2011, Allstate’s attorney sent two additional letters, one dated July 28, 2011 requesting Rodriguez appear for an EUO on August 15, 2011 and one dated September 2, 2011 requesting Rodriguez appear for an EUO on September 19, 2011.

The parties admit Rodriguez did not appear for the EUO on any of the scheduled dates.

Allstate asserts it is entitled to summary judgment because it timely denied the claims on the grounds Rodriguez failed to appear for an EUO.

Hempstead and Orthomed assert since all no-fault benefits had been denied based upon the IME cutoff, the request for an{**45 Misc 3d at 749} EUO was abusive and improper. Since Allstate had already denied Rodriguez all further no-fault benefits based upon an IME, Allstate did not have an objective basis to request Rodriguez appear for an EUO. Hempstead and Orthomed further assert since Rodriguez’s attorney timely objected to Rodriguez being produced for an EUO Allstate must demonstrate it had an objective basis for seeking to conduct an EUO.

Discussion

A person making application for no-fault benefits “may reasonably be required [to] submit to examinations under oath” upon request of the no-fault insurance carrier. (11 NYCRR 65-1.1 [d] [Section I, Conditions, Proof of Claim].)

Appearance at an EUO is a condition precedent to coverage. (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005 [2d Dept 2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014].) A carrier may deny all claims for no-fault benefits after a party fails to appear for an EUO if the carrier issues a timely denial asserting the failure to appear for the EUO as the basis of the denial. (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011].)

Allstate timely denied the claims on the grounds Rodriguez failed to appear for an EUO.

[1] However, Rodriguez objected to the EUO when it was demanded. (See Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011].) When the party who is requested to appear for an EUO timely objects to appearing for the EUO, the carrier must establish it had an objective standard for requesting the EUO. (See Hillside Open MRI, P.C. v Allstate Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51143[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; 11 NYCRR 65-3.5 [e].) Allstate offers no explanation or objective basis for its request Rodriguez appear for an EUO after Rodriguez’s attorney objected to the EUO.

A carrier can assert multiple grounds for denying a no-fault claim. A carrier may assert both precludable and non-precludable defenses to a no-fault claim.

[2] {**45 Misc 3d at 750}Plaintiff’s assertion that a carrier cannot request an EIP appear for an EUO after the EIP’s medical benefits have been denied based upon an IME is without merit. The relevant provisions of the no-fault regulations (11 NYCRR 65-1.1) do not limit or condition in any way a carrier’s right to request an EUO. The only conditions on an EUO are it must be conducted at a time and place reasonably convenient to the applicant and the applicant must be advised that he or she will be reimbursed for any loss of earnings or travel expenses incurred in complying with the request. (11 NYCRR 65-3.5 [e].) The no-fault law and regulations do not prevent a carrier that has denied no-fault benefits based upon an IME from requesting an EUO of the EIP if the EIP continues to receive medical treatment after the IME cutoff and the provider continues to submit the no-fault claims for payment.

An IME cutoff is not a complete defense to the action. The testimony of the physician, chiropractor or other medical provider who performed the IME may be sufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim. (Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].) The testimony of the medical professional that performed the IME could be rebutted by testimony adduced on cross-examination and/or by testimony from a rebuttal witness that meaningfully refers to and rebuts the findings and conclusions of the medical professional who performed the IME. (See Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Baybenson Chiropractic, LLC v Clarendon Natl. Ins., 39 Misc 3d 141[A], 2013 NY Slip Op 50756[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)

The testimony obtained from the EIP at a post IME cutoff EUO could be relevant to the defense of the claim submitted after the IME cutoff. The carrier could choose to pay the claims submitted after the IME cutoff based upon the testimony of the EIP at an EUO.

If a party wants to contest or object to a request for an EUO, it must do so when the EUO request is made. (Hillside Open MRI, P.C. v Allstate Ins. Co.; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U].) Since Rodriguez contested Allstate’s request for an EUO when it was made, the issue of whether Allstate had an objective basis for requesting an EUO has been preserved. (See Victory Med.{**45 Misc 3d at 751} Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co., 36 Misc 3d 568 [Nassau Dist Ct 2012].)

Since Rodriguez objected to the request for the EUO and Allstate has not established it had an objective basis for requesting Rodriguez appear for an EUO, defendant’s motion for summary judgment is denied.

Footnotes

Footnote *:Neither party provided the court with copies of any claims relating to treatment provided by either Hempstead or Orthomed before the claims at issue in this action, copies of the denials issued in connection with those claims or a copy of the IME report that may have served as the basis of the denial of prior claims.

[*1]

District Court of Nassau County, First District, July 7, 2014

APPEARANCES OF COUNSEL

Israel, Israel & Purdy for plaintiff.

Printz & Goldstein for defendant.

Background

This matter was submitted to the court for decision on the following stipulated facts.{**44 Misc 3d at 651}

Kenroy Palmer was injured in a motor vehicle accident that occurred on August 16, 2010. On August 31, 2010 and September 2, 2010, Meridian Psychological Service, P.C. provided psychological services to Palmer for injuries sustained in the motor vehicle accident.

Meridian took an assignment of benefits and submitted the claim to Government Employees Insurance Co. (Geico) for payment.

Meridian mailed its claim for services, provided to Palmer on the aforementioned dates, to Geico on September 28, 2010. The documents sent to Geico included an NF-3, Verification of Treatment by Attending Physician or Other Provider of Health Services, signed by Walter Spear, Ph.D. on behalf of Meridian and an NF-AOB, New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form signed by Palmer and Spear.

By letter dated October 17, 2010, Geico acknowledged receipt of Meridian’s claim and advised Meridian it would process the claim upon receipt of “A completed and signed no-fault application.”

By letter dated August 24, 2011, Meridian’s attorneys mailed a copy of a completed NF-2, “Application for Motor Vehicle No-Fault Benefits” that had not been [*2]signed by Palmer to Geico.

Geico did not respond to Meridian’s submission of the unsigned NF-2 or pay or deny the claim.

Meridian then commenced this action seeking to recover the unpaid no-fault benefits for the psychological services provided to Palmer.

Discussion

A carrier must pay or deny a claim for no-fault benefits within 30 days of receipt of a claim. (11 NYCRR 65-3.8 [a].)

A carrier’s time to pay or deny a no-fault claim is tolled or extended until it receives all timely and properly requested verification. (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2d Dept 2007]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) An insurer does not have to pay or deny a claim until it receives all timely requested verification. (St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2d Dept 2008]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2d Dept 2007]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2d Dept 2004]; 11 NYCRR 65-3.5 [c].){**44 Misc 3d at 652}

Geico could not continue to delay payment of Meridian’s claim after Geico received the completed but unsigned copy of the application for no-fault benefits from Meridian’s attorneys. (Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006].) Upon receipt of the unsigned NF-2, Geico was required to either pay or deny the claim or requested additional verification. (Nyack Hosp. v Encompass Ins. Co.) Geico did neither.

Even if the court were to consider Geico’s October 17, 2010 letter a timely request for additional verification (11 NYCRR 65-3.5 [b]), Geico would not have a defense to this action because Geico did not comply with the follow-up verification requirements of the no-fault regulations. If a carrier requests additional verification and the additional verification is not received after 30 calendar days from the original request, the carrier must follow up with the party from whom additional verification was requested either by telephone or mail. (11 NYCRR 65-3.6 [b].) If the carrier fails to follow up on its request for additional verification, its time to pay or deny the claim is not extended. (Westchester Med. Ctr. v Allstate Ins. Co., 112 AD3d 916 [2d Dept 2013]; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2d Dept 2013].)

Since the parties stipulated to the timely submission of the claim, the psychological services provided by Meridian to Palmer are presumed to be necessary. (All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006].) Geico did not timely pay or deny the claim and/or did not properly or timely follow up on its request for additional verification. Therefore, Geico does not have a defense to this action.

The court finds for the plaintiff.

[*1]

District Court of Nassau County, First District, March 26, 2014

APPEARANCES OF COUNSEL

Law Office of Rhonda Barry for defendant.

Israel, Israel & Purdy for plaintiff.

Background

This motion for summary judgment raises the issue of whether there must be a connection between an independent{**43 Misc 3d at 803} medical examination (IME) that a claimant fails to attend and the treatment in question for the failure to attend the IME to serve as a basis for denying a no-fault claim and dismissing this action.

Boulevard Multispec Medical, P.C. (Boulevard) sues as assignee of Phillip Sansone (Sansone) to recover first-party no-fault benefits for a functional capacity evaluation performed on March 11, 2013 and chiropractic and physical therapy treatment provided to Sansone on March 1 and March 8, 2013.

Defendant Tri-State Consumer Insurance Company (Tri-State) timely denied all three claims on the grounds the treatment was not medically necessary based upon the IME report of J. Serge Parisien, M.D. conducted on February 12, 2013. Dr. Parisien found Sansone had a resolved sprain/strain of the cervical spine and a resolved sprain of the left shoulder. Dr. Parisien concluded Sansone did not need any further orthopedic treatment, physical or massage therapy and any further diagnostic testing.

Prior to the dates of the treatment in question, Tri-State had requested Sansone appear for an IME to be performed by Dr. Alain Delachapelle, a psychiatrist. Dr. Delachapelle states he was in his office on the dates the IMEs were supposed to be conducted, and Sansone never appeared for the IME.

Tri-State timely denied Boulevard’s claims for the aforementioned services on the grounds the services were not medically necessary and on the grounds Sansone had failed to appear for the psychiatric IME to be conducted by Dr. Delachapelle.

Boulevard submits an affirmation from Gordon Davis, D.O. in opposition to the motion in which Dr. Davis states he has reviewed the medical reports for the treatment and testing involved in this action, prior treatment provided by Boulevard to Sansone and the IME report of Dr. Parisien and concludes the treatment and testing were medically appropriate.

Discussion

A. Medical Necessity

An insurer establishes an entitlement to summary judgment on the grounds medical treatment and/or testing were not medically necessary by presenting proof in evidentiary form establishing a factual basis and medical rationale for concluding the treatment and testing was not medically necessary. (Total Equip., LLC v Mercury Cas. Co., 42 Misc 3d 131[A], 2013 NY{**43 Misc 3d at 804} Slip Op 52220[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52003[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)

If the insurer presents such evidence, the burden of proof shifts to the plaintiff to present proof in evidentiary form rebutting the proof of lack of medical necessity. (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006].)

Even if the court finds Dr. Parisien’s IME report sufficient to meet defendant’s burden, the affirmation of Dr. Davis is sufficient to establish a factual basis and medical rationale for the testing and treatment. (Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50189[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Vincent Med. Servs., P.C. v GEICO Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52153[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010].)

The different opinions expressed by the medical experts regarding the medical necessity for the chiropractic treatment, physical therapy and medical testing are sufficient to raise questions of fact mandating denial of the motion for summary judgment on the grounds the treatment was not medically necessary. (Vinings Spinal Diagnostic, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51897[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010].)

B. Failure to Appear for an Independent Medical Examination

One of the primary purposes of the No-Fault Law is to ensure prompt payment of medical claims for necessary medical treatment or testing provided to persons injured in motor vehicle accidents. (See Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003].) Insurance Law § 5102 (a) (1) requires the insurer to pay for all necessary expenses incurred for medical treatment and testing incurred by one injured in a motor vehicle accident.

Despite this stated purpose, an insurer may deny a claim for medical services provided to a person injured in a motor vehicle accident without reaching the issue of the medical necessity of the treatment if the injured party fails to appear for a properly and timely scheduled IME. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) In order{**43 Misc 3d at 805} to deny a claim on the grounds the injured party failed to appear for an IME, the insurer must timely deny the claim asserting failure to appear for an IME as the grounds for the denial. (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 713 [2009].)

This simplistic rule does not take into account the purpose and function of an IME. The provision of 11 NYCRR 65-1.1 (d) (Section I, Conditions, Proof of Claim) requiring an injured party “shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require,” is the provision the courts found made appearance at an IME a condition precedent to coverage. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].)

However, other provisions of the regulations treat appearance at an IME as part of the process of verification of the claim. 11 NYCRR 65-3.5 (d) provides if the additional verification demanded is a medical examination, the insurer must schedule the medical examination within 30 days of receipt of the claim. 11 NYCRR 65-3.8 (a) requires an insurer to pay or deny all no-fault claims within 30 days of receipt including all verification requested under 11 NYCRR 65-3.5. Where the verification requested was an IME, the verification is deemed to have been received by the insurer on the date the IME was performed. (11 NYCRR 65-3.8 [a].)

The purpose of an IME is to permit the insurer to verify the person’s injuries, to determine the injured party’s condition and to determine if the injured party needs any additional treatment or testing for those conditions and injuries. (Mangione v Jacobs, 37 Misc 3d 711 [Sup Ct, Queens County 2012].) In no-fault cases, the purpose of the IME is to assist the carrier in determining the extent of the injured party’s disability and that person’s need for additional and continued benefits. (See Rowe v Wahnow, 26 Misc 3d 8, 10 [App Term, 1st Dept 2009, McKeon, P.J., dissenting].) Thus, the purpose of an IME is not to determine whether coverage exists, but is to permit the insurer to determine the nature and extent of the injured party’s injuries, whether the injured party needs additional treatment or testing for those injuries and for how much longer such treatment might be needed.

In many if not most instances, the relationship between the IME and the treatment is apparent. For example, should the{**43 Misc 3d at 806} injured party fail to appear for a duly and timely noticed orthopedic IME, the insurer could deny all future benefits for orthopedic care and testing and treatment ordered by the orthopedist.

In this case, the insurer requested Sansone appear for a chiropractic, orthopedic, [*3]psychiatric and neurological IME within a one-week period. Sansone appeared for the orthopedic IME conducted by Dr. Parisien. Sansone did not appear for the psychiatric examination to be conducted by Dr. Delachapelle.

If one of the fundamental purposes of the No-Fault Law is to provide for prompt payment of claims for persons injured in motor vehicle accidents, then that purpose is not served by cutting off all no-fault benefits as a result of the injured party’s failure to appear for an IME in a discipline or specialty unrelated to the treatment in issue.

Put in the context of this action, the IME that serves as the basis of the denial of the claim is the failure of the party to appear for an IME to be performed by a psychiatrist. There is no evidence in the record to establish Sansone sustained any psychiatric injuries or received any psychiatric treatment for the injuries caused by the motor vehicle accident that gives rise to this no-fault claim. The treatment in question is medical testing involving the patient’s physical fitness to return to work as a bus driver, chiropractic treatment and physical therapy. None of this treatment or testing appears to be in any way related to Sansone’s psychiatric condition.

In order for the failure to appear for an IME to provide a basis for the denial of the claim, there must be some relationship between the IME for which the injured party failed to appear and the treatment in issue.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

[*1]

District Court of Nassau County, First District, March 13, 2014

APPEARANCES OF COUNSEL

Baker Sanders, L.L.C., Garden City, for plaintiff.

Printz & Goldstein, Woodbury, for defendant.

Plaintiff, All-In-One Medical Care, P.C., commenced this no-fault action against defendant, Government Employees Insurance Company (GEICO), following GEICO’s denial of plaintiff’s claims for no-fault benefits for physical therapy services provided in January and February 2011. Plaintiff’s assignor, Santo Fernandez, was injured in an accident in May 2010. GEICO denied the claims based upon the results of independent medical examinations (IMEs) conducted in October 2010 by three different doctors (Drs. Emmanuel, Sesto, and Yiu). GEICO defends this case at trial solely upon the IME and live testimony of the first doctor, Dr. Jacquelin Emmanuel.

Pursuant to the parties’ stipulation, the trial of plaintiff’s claim was limited to the defense of lack of medical necessity. Dr. Emmanuel was defendant’s only witness. Plaintiff presented no witnesses in rebuttal. Each party submitted medical records for the court’s consideration. Their respective submissions were introduced into evidence on consent and without objection.

According to Dr. Emmanuel’s testimony, he examined Mr. Fernandez twice, first on September 13, 2010, and again on October 25, 2010. The first exam was conducted shortly after Mr. Fernandez had undergone arthroscopic shoulder surgery. Dr. Emmanuel concluded, at that time, that Mr. Fernandez’s spinal sprains/strains had “resolved,” but his right shoulder injuries were still “healing.” After noting Mr. Fernandez’s complaints of tenderness in his right shoulder, Dr. Emmanuel found significant limitations in the right shoulder’s range of motion. Dr. Emmanuel accordingly recommended that Mr. Fernandez should continue to receive physical therapy for his right shoulder, three times a week, for the following four weeks.

Dr. Emmanuel reexamined Mr. Fernandez on October 25, 2010. Mr. Fernandez’s complaints at that time included “radiating neck pain and pain in his low back and right shoulder.” However, upon examination, Mr. Fernandez displayed “no acute distress.” Dr. Emmanuel found no evidence of tenderness or spasm upon palpation of the cervical or lumbar spinal musculature. Range of motion was normal or near normal. The right shoulder arthroscopic entry portals had healed. Dr. Emmanuel found “no impingement signs” in the right shoulder.

Based upon the latter examination findings, Dr. Emmanuel concluded that “no further physical therapy or massage is medically {**43 Misc 3d at 729}necessary.” His report further explained: “Although there were findings of slightly decreased ranges of motion in the cervical spine and right shoulder regions, this is subjective rather than objective. There is no evidence of spasms or instability and all orthopedic tests are negative.”

Dr. Emmanuel’s trial testimony echoed his IME findings. He explained in a clear, consistent, and credible manner why he had concluded that Mr. Fernandez required no further treatments. Notwithstanding the existence of continued subjective complaints, Dr. Emmanuel’s objective examination of Mr. Fernandez found only mild range of motion limitations. Absent objective evidence of tenderness or spasm, he saw no need for continued physical therapy.

[1]; Under current Appellate Term precedent, such trial evidence, if credited, is sufficient to make out a lack of medical necessity defense to post-IME services, and shift the burden to plaintiff of demonstrating the medical necessity of post-IME treatments. (See Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U]; [App Term, 2d Dept, 9th & 10th Jud Dists 2013];.) This court, as factfinder at trial, concludes that Dr. Emmanuel had a sound factual basis and medical rationale for his opinion that no further treatment was necessary. Accordingly, unless plaintiff satisfied its burden of proving to the contrary, defendant is entitled to judgment dismissing plaintiff’s no-fault claim.

In the face of such showing by defendant, plaintiff attempted to meet its burden through submission of post-IME medical records. “Follow-up progress notes” from Dr. Jean Claude Demetrius document monthly post-IME evaluations of Santo Fernandez that were performed between November 2010 and February 2011. In his January 11, 2011 report, for example, Dr. Demetrius notes that the patient’s pain course “has been moderately improved with current physical therapy and acupuncture” but “still has significant pain in neck and lower back with radiating pain and paresthesia to the both upper and lower extremities.” In addition, Mr. Fernandez continued to complain about shoulder pain. Upon examination of the patient’s shoulders, Dr. Demetrius found mild tenderness in the right shoulder, severe tenderness in the left shoulder, and decreased range of motion in the upper extremities.

Based upon these findings and other documented examination results, Dr. Demetrius’s “diagnostic impression” included cervical and lumbar strain/sprain, cervical and lumbar discogenic{**43 Misc 3d at 730} disease/radiculopathy, and right/left shoulder joint pain secondary to contusion and ligament/tendon tear. His “diagnostic plan” called for “[c];ontinued physical therapy” and a follow-up reevaluation in four to six weeks. Similar findings and recommendations were made in his earlier and later reports.

Submission of these records, as part of a stipulated evidence package, raises an interesting evidentiary question. Can the plaintiff meet its own burden to prove medical necessity solely through submission of post-IME medical records? Or must it submit live witness testimony from a treating doctor, or other medical expert, establishing by expert proof that the subject services were appropriate and medically necessary?

The decision in Amato did not reach the issue. Unlike this case, the plaintiff in Amato submitted “no evidence.” (See 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U], *2.) Since the plaintiff in Amato “proffered no evidence” respecting the patient’s condition following the date of the IME, any finding that the patient’s condition may have “worsened after the IME” would be “speculative, at best.” (Id.) Consequently, the Appellate Term directed entry of judgment in favor of defendant, dismissing the complaint, due to the complete absence of rebuttal proof from the plaintiff respecting the necessity of the post-IME treatments.

Here, in contrast, plaintiff did not rest upon the strength of its cross-examination of Dr. Emmanuel. Instead, it submitted the treating doctor’s records of the post-IME examinations. Can this court accept the findings and conclusions of the treating doctor without hearing his testimony in court at trial? In the absence of specific guidance from the Appellate Term, this court necessarily must look to decisions made by other appellate courts. Since this court sits under the Second Department’s umbrella, it looks principally to that Court’s decisions in analogous circumstances and related contexts. The rulings made in such cases are far from uniform.

In one leading case involving a claim of medical malpractice, the Appellate Division, Second Department, addressed at length the admissibility of physicians’ office records under the “business records” exception to the hearsay rule. (Wilson v Bodian, 130 AD2d 221, 228-234 [2d Dept 1987], citing CPLR 4518.) Plaintiff’s evidence in that case included the office records of a treating doctor, Dr. Hyman. Although plaintiff’s counsel claimed to have subpoenaed the doctor, “[n];either the process server nor any other witness nor any affidavit of service was produced to{**43 Misc 3d at 731} verify the unavailability of Dr. Hyman.” (130 AD2d at 224.) When the records were offered into evidence, the defendant objected on hearsay grounds. As counsel noted in his objection, “I cannot cross-examine those records.” (Id. at 225.)

On defendant’s appeal from a jury verdict in plaintiff’s favor, defendant renewed his objection to the admission of the records. The Appellate Division rejected the argument. After surveying “inconsistent” rulings made by other courts, the Second Department “reaffirm[ed]; that a physician’s office records, supported by the statutory foundations set forth in CPLR 4518 (a), are admissible in evidence as business records.” (130 AD2d at 230-231.) “Similar to hospital records, it is the business and duty of a physician to diagnose and treat a patient’s illness. Therefore, entries in the office records germane to diagnosis and treatment are admissible, including medical opinions and conclusions.” (Id. at 231 [emphasis added];.)

Since the decision in Wilson v Bodian, the Second Department has not consistently followed the last part of its ruling. In some cases, it continues to hold that a doctor’s office records, including “the medical opinions contained therein,” are properly admissible as evidence if “germane to the diagnosis and treatment” of the doctor’s patient. (See Murray v Weisenfeld, 37 AD3d 432, 433 [2d Dept 2007];.)

Other decisions take a very different approach. In Wagman v Bradshaw (292 AD2d 84 [2d Dept 2002]), for example, the Court drew a distinction between admissible medical records containing the results of specified medical tests (e.g., MRIs), and subjective opinion evidence interpreting the MRI test results in “a written report prepared by a nontestifying healthcare professional.” (292 AD2d at 88.) According to the Court’s decision in Wagman, such a report would be deemed “patently inadmissible hearsay as the declarant, the preparer of the report, is unavailable for cross-examination.” (Id.)

Similarly, in Daniels v Simon (99 AD3d 658 [2d Dept 2012]), the Second Department held that the Supreme Court “correctly declined to admit into evidence various medical reports prepared by physicians who examined Deborah Daniels on behalf of her insurance carrier. The reports of these nontestifying physicians were inadmissible because the physicians were unavailable for cross-examination.” (99 AD3d at 660, citing inter alia Wagman v Bradshaw.) Without mentioning Wilson v Bodian, the Court in Daniels v Simon concluded that a medical report “is not admissible as a business record where, as here, it contains the physician’s opinion or expert proof.” (Id.)

{**43 Misc 3d at 732}Plaintiff’s proof of medical necessity in this case rests entirely upon post-IME reports, containing the treating doctor’s findings and opinions respecting the need for continued physical therapy treatments. Consequently, under the principles announced in Wagman v Bradshaw and its progeny, defendant could have objected to the submission of the reports prepared by Dr. Demetrius unless he could be cross-examined about his findings and opinions. Had defendant made such an objection in advance of trial, the parties could have obtained an in limine ruling from the court, and, depending upon the court’s ruling, they could have adjusted their presentations accordingly.

[2]; But defendant voiced no such objection. To the contrary, the post-IME records were part of a stipulated package of medical records that both sides deemed relevant to the issue at hand. In view of that stipulation, this court need not weigh in, at this time, on whether Wilson or Wagman should be followed in no-fault matters where the plaintiff offers medical record evidence of post-IME medical treatments which includes an uncalled treating doctor’s opinions. To the extent that the subject reports contain examination findings respecting Mr. Fernandez’s condition subsequent to the date of the last IME, the reports are clearly admissible as records “germane to diagnosis and treatment.” (Wilson v Bodian at 231.) To the extent the reports can be read as expressing an opinion regarding the patient’s need for additional physical therapy treatments, in the absence of objection that opinion may be weighed, along with the other evidence, in determining whether plaintiff met its burden of establishing the medical necessity of the post-IME treatments.

However, that conclusion does not end the court’s analysis. Although plaintiff’s proof of post-IME examinations by Dr. Demetrius might be enough to make out a prima facie case for medical necessity under Amato, submission of those records, without supporting testimony from Dr. Demetrius, raises a second issue, namely, whether the court should draw a negative inference from plaintiff’s decision to not call Dr. Demetrius as a witness.

Again, the court looks principally to Second Department rulings in related contexts. Although the leading cases do not involve no-fault matters, general principles announced in such cases have equal applicability to the case at bar.

Both in cases heard by the court, and in cases heard by a jury, an adverse inference may be drawn if a party fails to “call a witness who would normally be expected to support that party’s version of events.” (See Matter of Adam K., 110 AD3d 168, 176-{**43 Misc 3d at 733}178 [2d Dept 2013];.) The rationale for the rule rests on “the commonsense notion” that a party will normally call a witness who would be expected to provide testimony in the party’s favor. (See Matter of Adam K., 110 AD3d at 181.)

In cases where a party fails to call a treating doctor, an adverse inference may be drawn if the doctor is under a party’s control, and can provide relevant, noncumulative testimony regarding a patient’s condition. (See Matter of Adam K., 110 AD3d at 180, citing Zito v City of New York, 49 AD3d 872, 874 [2d Dept 2008]; see also Wilson v Bodian, 130 AD2d at 234.) Treating doctors, unlike reviewing doctors, possess “the greatest knowledge about the patient.” (Matter of Adam K. at 180.) Therefore, as a general rule, a party’s failure to call the treating doctor to give testimony on a material issue allows the court to draw an adverse inference “as to any evidence which the missing . . . witness ‘would be in a position to controvert.’ ” (Matter of Adam K. at 179, quoting Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996 [1985];.)

However, the rule “may not be used to draw any inferences beyond that.” (Matter of Adam K. at 179, quoting Matter of Jane PP. v Paul QQ. at 996.) An adverse inference, by itself, “does not permit establishment of the ultimate conclusion” that must be reached in a given matter. (Matter of Adam K. at 179.)

[3]; In the instant case, the ultimate issue to be decided is whether plaintiff met its burden of establishing the medical necessity of post-IME physical therapy treatments. Although Dr. Emmanuel’s testimony respecting his October 2010 examination may have been enough to shift the burden to plaintiff to establish the necessity of the post-IME treatments in January and February 2011, plaintiff countered Dr. Emmanuel’s testimony by submitting Dr. Demetrius’s post-IME medical records. Those records not only went into evidence without objection, but, more importantly, were not rebutted by any opposing proof from defendant.

Critically, Dr. Demetrius’s monthly medical reports include detailed evaluations of the patient’s ongoing complaints, the treating doctor’s findings, and the doctor’s recommendation for continuation of physical therapy treatments. Moreover, the reports, on their faces, set forth a facially valid factual basis and medical rationale for continuing the treatments before, during, and after January 2011. Based upon the treating doctor’s opinion that Mr. Fernandez’s condition had “moderately {**43 Misc 3d at 734}improved” with physical therapy, but he was still suffering from right and left shoulder joint pain, decreased range of motion in the upper extremities, and radiating pain and paresthesia to both the upper and lower extremities, plaintiff continued to provide physical therapy treatments to Mr. Fernandez.

Unlike the circumstances presented in Amato, plaintiff’s evidence takes the case out of the realm of “speculation” regarding the patient’s post-IME condition. On the other hand, under “missing witness” principles, plaintiff’s failure to call Dr. Demetrius cannot be ignored. By not calling him as a witness to give testimony regarding his diagnosis and treatment, plaintiff avoided exposing him to cross-examination. Since he clearly was in a position to give relevant, noncumulative testimony on a contested medical necessity issue, an adverse inference arises. Plaintiff’s failure to call him therefore allows the court to infer that he would not have been able to meaningfully controvert Dr. Emmanuel’s testimony respecting the patient’s condition in September and October 2010.

But that adverse inference helps defendant only to a limited extent. At least where, as here, defendant submitted no evidence contesting plaintiff’s admissible medical record evidence respecting the patient’s condition in January and February 2011, the absence of testimony from Dr. Demetrius is not dispositive.

Conclusion

In the final analysis, defendant’s proof satisfied its burden under Amato, shifting the burden to plaintiff to demonstrate through admissible proof that the post-IME services rendered by plaintiff were medically necessary. Plaintiff satisfied that burden through submission of medical records containing findings and opinions of the treating doctor, Dr. Demetrius. The medical records document the factual basis and medical rationale for the continued post-IME physical therapy treatments. Although plaintiff’s failure to call Dr. Demetrius as a witness gives rise to a limited adverse inference, that adverse inference by itself is not enough to defeat plaintiff’s otherwise sufficient medical record proof of medical necessity.

Accordingly, judgment is rendered for the plaintiff, for the full principal amount claimed ($321.14), with interest, costs, disbursements and attorney’s fees as allowed by law.