Index No. CV-1526-20/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 65 read on this motion by defendant for an order seeking Summary Judgment of dismissal ; by Notice of Motion/Order to Show Cause and supporting papers 1-4,61 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 62,63 ; Replying Affidavits and supporting papers 64,65 ; Filed papers; Other exhibits: 5-60, (and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212(b), is granted.

Plaintiff medical provider seeks reimbursement from defendant insurer for assigned first party no-fault benefits for medical dates of service (“DOS”) rendered to plaintiff’s assignor from 02/06/2019 through 03/19/2020, for injuries sustained from a car accident of 01/28/2019, in the outstanding sum of $7,399.77, under New York’s No-Fault Law.

Defendant now moves for summary judgment dismissing the complaint pursuant to CPLR 3212(b), supported by the affidavit of its Claims Supervisor, Danuta Fudali, which asserts, inter alia, that defendant timely mailed its NF-10 Denial Of Claim forms (“denials”) and Explanation of Benefits (“EOB’s”) to plaintiff, pursuant to the practices and procedures it established to ensure timely deliver of its mailings to the intended recipient, thereby creating a presumption of receipt. The denials were based upon defendant’s payment in full for plaintiff’s submissions of excessive billing not compiled in accordance with the Workers’ Compensation [*2]Fee Schedule (“Fee Schedule”), pursuant to the findings in the affidavit of Carolyn Mallory, C.P.C. (“Certified Professional Coder”)^[FN1] , and the lack of medical necessity for certain chiropractic and acupuncture billing, as supported by the Independent Medical Examination (“IME”) and report of Dr. John Iozzio, D.C., L.Ac., dated 03/26/2019, the IME report of Dr. John Iozzio dated 05/02/2019, and the peer review report of Dr. Daniel Sposta, D.C., L.Ac., dated 05/15/2019, which cut off any further chiropractic and acupuncture treatments as of 04/22/2019 and 05/23/2019, respectively.

In opposition to the motion for summary judgment, plaintiff asserts it attached to its papers as an exhibit, the affidavit of Dr. Vadim Dolsky, L.Ac., to rebut the claims of Dr. Iozzio and Dr. Sposta, by demonstrating plaintiff’s assignor was symptomatic and required the treatments provided by the treating providers; that Dr. Iozzio’s IME reports concede that the evaluations and treatments prior to the IME dates were medically necessary; that defendant’s IME reports failed to demonstrate the disputed services were inconsistent with generally accepted medical or professional practices; and Dr. Dolsky’s professional opinion differs from that stated by defendant’s experts, thereby raising a question of fact requiring a trial.

In addition, plaintiff asserts it attached to its papers as an exhibit, the affidavit of Priti Kumar, C.P.C., to rebut the facts and opinions on the proper use of the fee schedule, in opposition to the opinion expressed by Carolyn Mallory, C.P.C. on behalf of defendant. Plaintiff contends the difference of opinion of each party’s expert raises a question of fact, which requires a trial.

In reply to plaintiff’s opposition papers, defendant urges the Court to ignore the purported findings of both Dr. Vadim Dolsky, L.Ac., and that of Priti Kumar, C.P.C., as there are no affidavits or exhibits attached to plaintiff’s papers as an exhibit. Indeed, a search by the Court for the existence of any exhibits or affidavits from plaintiff proved useless, as there is none to be found.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]; see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

Once a showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion for summary judgment, 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 CPLR 3212 [b]; Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra).

An attorney’s affirmation which demonstrates no personal knowledge of the facts, is insufficient to defeat a motion for summary judgment, but may serve as a vehicle for the submission of acceptable attachments, which do provide evidentiary proof in admissible form (see Zuckerman v City of New York, supra).

Here, the Court determines defendant has satisfied its burden of demonstrating the existence and following of its standard office practices and procedures for the timely and proper mailing of its NF-10 denial of claim forms and EOR’s to plaintiff (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2nd Dept, 2007]). Defendant’s mailing methods were sufficient to create a rebuttable presumption of proper mailing (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123, 1124 [2nd Dept 2008]; New York Presbyt. Hosp. v Allstate Ins. Co.,29 AD3d 547 [2nd Dept 2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 57 Misc 3d 150[A][App Term, 2d, 11th & 13th Jud Dists 2017]). “…Proof of proper mailing gives rise to a presumption that the item was received by the addressee” (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept 2001]), which presumptions of receipt, were not refuted or denied by plaintiff in the instant matter. Plaintiff’s arguments in opposition are unavailing.

The Court further determines that defendant has made a prima facie showing of entitlement to summary judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact, which has not been refuted by plaintiff (see Alvarez v Prospect Hospital,supra]; Winegrad v New York Univ. Med. Center, supra; Zuckerman v City of New York, supra).

The failure to submit a rebuttal affidavit from plaintiff’s C.P.C. expert on the contested fee schedule issues, leaves only the opposition analysis of plaintiff’s attorney, with no personal knowledge of the facts, unsupported by expert witness testimony as to the use and interpretation of the fee schedules in the context of defendant’s components and calculations of the alleged maximum permissible fee (see Murali v Upton, 175 Misc 2d 186, 187-188 [Civ Ct, NY Cty, 1997]).

In addition, the failure to submit a rebuttal affidavit from plaintiff’s expert physician showing the medical necessity of its billing in a non-conclusory manner and meaningful way, rebutting the issues raised in the insurer’s IME and peer review reports, fails to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the medical services at issue (see Throgs Neck Multicare, P.C. v Mercury Ins. Co., 52 Misc 3d 138[a}[App Term, 2nd Dept, 9th & 10th Jud Dists 2016]), and leaves the conclusions of defendant’s medical experts un-refuted (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A][App Term, 2nd, 11th & 13th Jud Dists 2009]).

“The law is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof to demonstrate that the matters alleged are real and capable of being established upon trial” (see Nelson v Lundy, 298 AD2d 689, 690 [3rd Dept 2002]; see also Wasson v Bond, 80 AD3d 1114 [3rd Dept 2011]). The plaintiff’s papers fail to meet this standard and accordingly, judgment is granted in favor of defendant and the complaint is dismissed (see Jamil M. Abraham, M.D., P.C. v Country Wide Ins. Co.,3 Misc 3d 130[A][App Term, 2nd & 11th Jud Dists 2004]; Murali v Upton, supra).

Accordingly, the motion for summary judgment by defendant pursuant to CPLR 3212(b), is granted. The foregoing constitutes the decision and order of this Court.

Dated: January 5, 2022
J.D.C.

Footnotes

Footnote 1:Defendant’s expert Coder states under oath that in the event medical necessity is found at a trial, the amounts to be allowed under the fee schedule would be $447.32 for Bills 1 through 6, and $3,798.60 for Bills 7 through 46 (see page 46 of Carolyn Mallory’s affidavit).

Index No. CV-3161-20/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 16 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/ Order to Show Cause and supporting papers 1,2,9 ; Notice of Cross Motion and supporting papers 10,11 ; Answering Affidavits and supporting papers 10,11 ; Replying Affidavits and supporting papers 15,16 ; Filed papers; Other exhibits: 3-8,12-14 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint, is denied, and plaintiff’s cross-motion for summary judgment in the total sum of $6,947.81, is denied.

In this action by a medical provider to recover assigned first-party no-fault benefits for medical services rendered, consisting of ten (10) bills totaling $6,947.81, defendant insurer moves for summary judgment dismissing the complaint based upon assignor’s failure to appear for orthopedic independent medical examinations (“IME’s”) on 08/14/2019, and then on 09/14/2019, not satisfying a condition precedent of its insurance policy (see 11 NYCRR 65-1.1), which defendant raised as a ninth affirmative defense in its amended verified Answer, thereby vitiating insurer’s liability (see Stephan Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept 2006]). Defendant asserts it denied each of the 10 claims premised on a breach of condition to coverage, which voided the policy ab-initio, resulting in no coverage to the no-fault claims retroactively dated to the date of the automobile accident of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

In opposition to the motion, plaintiff argues defendant failed to properly and timely schedule the orthopedic IME’s pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of prescribed verification forms or claims (see W.H.O. Acupuncture , P.C. v Travelers Home & Marine Ins. Co., 36 Misc 3d 152[A][2nd Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff contends that defendant concedes (and admits) it received the first claim on 05/31/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 05/31/2019, or within 06/30/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also contends that defendant concedes (and admits) it received the second claim on 06/17/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 06/17/2019, or within 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff further contends that defendant concedes (and admits) it received the third claim on 07/03/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 07/03/2019, or within 08/02/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also cross-moves for summary judgment in the sum of $6,947.81, asserting it timely submitted the 10 NF-3 Notice of Claim forms to defendant for this total, and payment is overdue. Plaintiff contends that defendant’s NF-10 Denial of Claim forms for each of the 10 submitted claims, is prima facie proof of plaintiff’s timely submission and defendant’s receipt of each claim and that payment is overdue.

In opposition to plaintiff’s cross-motion, defendant denies plaintiff’s arguments in support, and raises the doctrine of res judicata as a defense to plaintiff’s contentions, citing 2 civil decisions from the City of New York, a copy of each of which was provided by defendant to the Court:

1) LONGEVITY MEDICAL SUPPLY, INC., a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 713404/20 (Civ Court, City of New York, Queens Cty, dated 6/9/2021 (Greenburg, J.), and

2) NORTH QUEENS SURGICAL CENTER, a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 715694/20 (Civ Court, City of New York, Queens Cty, dated 6/6/2021 (Lanzetta, J.).

Defendant argues that both decisions demonstrate that assignor Marisol Torres’ failure to appear at duly scheduled IME’s were the grounds for dismissal, with prejudice, and since plaintiff’s assignor herein is the same Marisol Torres as in the two cited cases, the instant cross-motion by plaintiff should be denied under the doctrine of res judicata, accordingly.

In addition, defendant replies in further support of its motion for summary judgment, that it is entitled to dismissal on the grounds it timely denied reimbursements for plaintiff’s bills, based upon the failure of plaintiff’s assignor to appear at duly scheduled IME’s, thereby failing to satisfy a condition precedent to the insurer’s liability under the no-fault policy, which voided the policy ab-initio, resulting in no coverage for the no-fault claims, retroactively dated to the automobile accident date of 04/25/2019.

Here, the Court finds that although defendant established that the notices of the scheduled orthopedic IME’s were properly mailed in accordance with defendant’s standard office practice and procedures (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d,11th & 13th Jud Dists 2007), and that plaintiff’s assignor failed to appear at each of the IME’s (see [*2]Stephen Fogel Psychological , P.C. v Progressive Cas. Ins. Co., 35 AD3d 720,721 [2nd Dept 2006]; Utopia Equipment, Inc. v ELRAC, Inc.,56 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]), defendant failed to demonstrate that the scheduling of the orthopedic IME’s complied with Regulation 11 NYCRR §65-3.5[d], which prescribes a statutory 30-calendar-day time frame for the timely holding of IME’s, from the date of receipt of the verification forms or claims (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]), or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2nd Dept 2005]; 11 NYCRR 65-3.5).

Therefore, the Court finds that defendant has failed to demonstrate a prima facie entitlement for summary judgment (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]), in that defendant failed to timely schedule its first orthopedic IME for each of the first submitted three claims, pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of the claims ^[FN1] (see Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 57 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra at *2; see also O & M Medical, P.C. v Travelers Indem. Co., 47 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the first claim was received from plaintiff on 05/31/2019, requiring a scheduled IME by 06/30/2019. However, defendant’s scheduling letter for its first orthopedic IME for this claim was dated 07/30/2019, with its first orthopedic IME date set for 08/14/2019, which was untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

In addition, Defendant’s own NF-10 Denial of Claim form dated 10/22/2019, admits the second claim was received from plaintiff on 06/17/2019, requiring a scheduled IME by 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME for this claim was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc. supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

Furthermore, Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the third claim was received from plaintiff on 07/03/2019, requiring a scheduled IME by 08/02/2019. [*3]However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

The remaining 7 NF-3 Notices of Claim were denied by defendant on the same basis of plaintiff assignor’s failure to appear at the scheduled orthopedic IME of 08/14/2019, and the rescheduled IME of 9/04/2019.^[FN2] However, these NF-10 Denials of Claim relied upon the same untimely and improperly scheduled IME date of 08/14/2019. Since the first IME date of 08/14/2019 was untimely and improper, the rescheduled IME date of 09/04/2019 was also untimely and improper, and it did not toll defendant’s time to pay or deny those bills (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]); see also Concourse Chiropractic, PLLC. v Fiduciary Ins. Co. Of America, 35 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2012).

In effect, there was no duly scheduled IME at which plaintiff failed to appear, as the scheduling letters for the IME’s were each scheduled to be held beyond the 30 days of defendant’s receipt of the claims, as required by 11 NYCRR 65-3.5(d), rendering each scheduling letter a nullity (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; O & M Medical, P.C. v Travelers Indem. Co., supra).

Therefore, defendant failed to demonstrate that it had properly denied the claim, based upon plaintiff’s breach of a condition precedent to coverage, which voided the policy ab-initio, resulting in no coverage for the 10 no-fault claims, retroactively dated to the automobile accident date of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra at 721]; 11 NYCRR 65-1.1).

Accordingly, the motion by defendant for summary judgment dismissing plaintiff’s complaint on this basis, is denied.

The Court now turns to plaintiff’s cross-motion for summary judgment for the amount in the complaint. Here, the Court determines that plaintiff has failed to demonstrate a prima facie entitlement for summary judgment, by proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra).

Plaintiff attempts to use defendant’s NF-10 Denial of Claim forms as proof that it submitted its 10 claims totaling the sum of $6,947.81, which have not been timely paid or denied. “The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant received [*4]it, and that the no-fault benefits were overdue” (see AR Medical Rehabilitation v State-Wide Ins. Co., 49 Misc 3d 918 [Civil Ct, New York City 2015], citing Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081-82 [2nd Dept 2011]).

This was later affirmed by the Court of Appeals wherein it held that a medical provider is required to submit proof of mailing through evidence in admissible form, which may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business” (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). “The burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 919, citing Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., supra at 506-07).

Neither Court addressed the issue of whether a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 920). However, the Appellate Term had previously ruled that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to demonstrate that the claim form was sent by the medical provider and received by the insurer (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2014). In this instance, “plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518[a]; instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received” (Id.).^[FN3] “Defendant’s denials admitted the receipt of the bills at issue…and plaintiff was not required to establish a CPLR 4518 foundation for the bills” (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A][App Term 2nd Dept, 2d, 11th & 13th Jud Dists 2014]). Therefore, a “plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of defendant’s denial form indicating when defendant received the claim and when it denied it” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 921, citing Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term 2nd Dept 2006]).

In the instant matter, plaintiff has failed to demonstrate it prima facie entitlement to summary judgment, by submission of a copy of its NF-3 proof of claim forms accompanied by an affidavit of its billing manager as to his personal knowledge of the issuance of the claim, in addition to defendant’s NF-10 denial of claim form. Accordingly, plaintiff’s cross-motion for summary judgment in the sum of $6,947.81 on this basis is denied.

Nevertheless, defendant has opposed plaintiff’s cross-motion for summary judgment, by raising the doctrine of res judicata (claim preclusion), as a defense to plaintiff’s contentions, citing two civil decisions from the City of New York, wherein plaintiff’s assignor, Marisol Torres, was also named as a plaintiff’s assignor, with the named defendant, NY Central Mut. Fire Ins. Company. Both decisions noted the failure of plaintiff’s assignor to appear at duly scheduled [*5]IME’s, and resulted in the Court’s dismissal of each case.

The Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action (see CPLR 3212[b]; Alvarez v Prospect Hospital, supra at 324). Though defendant has interposed the doctrine of res judicata as a defense, under res judicata, “a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction” (see Cortazar v Tomasino, 150 AD3d668 [2nd Dept 2017]). Or more simply, “a valid final judgment bars future actions between the same parties on the same cause of action” (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously ‘brought to a final conclusion'” (see Blue Sky, LLC. v Jerry’s Self Storage, LLC., 145 AD3d 945 [2nd Dept 2016]).

The Court further finds that the cited cases by defendant fail to demonstrate they are a disposition on the merits for the same litigation between the same parties, or those in privity with them, for a cause of action arising from the same transaction (see Cortazar v Tomasino, supra). Indeed, the cited cases refer to litigants, Longevity Medical Supply, Inc. and North Queens Surgical Center, as assignees of Marisol Torres, but there is no link to Jiang Acupuncture, P.C., other than there being the same assignor in the instant matter. Also, there is no factual showing that the cited matters refer to the same transaction.

Accordingly, the Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action.

Any remaining contentions of the parties are either unavailing or have been rendered academic.

The foregoing constitutes the decision and order of this Court.

Dated: September 23, 2021

HON. JAMES F. MATTHEWS

J.D.C.

Footnotes

Footnote 1:The Court notes that “the record does not reflect when [defendant] received the ‘prescribed verification forms'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015][citing to dissent of Friedman, J.P. at 844]), though “the 30 day period within which the IME was supposed to be scheduled, is measured from the date on which [defendant insurer] received the prescribed verification form from [plaintiff] itself (citing to Ops Gen Counsel NY Ins Dept No. 03-02-12, Feb 2003, remaining cite omitted ), noting that the prescribed verification form to which §65-3.5[d] refers is, in the case of a non-hospital healthcare provider, as in the instant matter, ‘NYS Form NF-3, Verification of Treatment by Attending Physician or Other Provider of Health Service [emphasis added]'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra at dissent of Friedman, J.P. at page 845).

Footnote 2:The remaining NF-10 Denial of Claim forms also refer to the Reason For Denial (#33) as being based upon the failure of plaintiff assignor to appear at a scheduled Chiropractor and Acupuncture IME held on 08/21/2019. However, no factual evidence, such as a dated scheduling letter, or failure to appear affidavit, to support this statement was submitted, and the Court makes no ruling in this regard. Additional reasons for denial (#33) were for plaintiff’s submission of excessive workers’ compensation fee schedule rates, and submission of inaccurate insurance information based upon the insurer’s investigation, but no supporting evidence was submitted and the Court also makes no ruling in this regard.

Footnote 3:The Court notes that the Eagle case ultimately turned on the fact that defendant insurer consented to the admission into evidence of plaintiff’s claim form.

CV-1909-18/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 19 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/Order to Show Cause and supporting papers 1,2,12 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 13,17 ; Replying Affidavits and supporting papers 18,19 ; Filed papers; Other exhibits: 3-11,14-16 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the part of the motion by defendant seeking summary judgment of dismissal for the NF-3 claim forms with dates of service (“DOS”) of 10/23/17, 10/25/17 through 11/08/17, and 11/14/17 through 11/17/17, for the respective amounts of $34.68, $41.04, $41.04, $41.04, $101.87, $41.04, $101.87, $101.87 and $92.98, in the total sum of $597.43, upon the grounds of outstanding verification requests pursuant to 11 NYCRR 65-3.8(b)(3), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b).

Defendant’s proof submitted in support of its motion to dismiss the aforementioned NF-3 claims based upon outstanding verification requests, also demonstrates it improperly mailed its verification requests to plaintiff provider at the wrong address. The aforementioned NF-3 proof of claim forms (defendant admits their receipt) clearly lists the Provider’s name and address as being: Medalliance Medical Health Services, c/o Law Offices of Baker Sanders, 100 Garden City Plaza, Suite 500, Garden City, New York 11530. A copy of plaintiff’s envelope received and kept by defendant with each of these NF-3 proof of claim forms (submitted as part of defendant’s exhibits), shows a pre-printed return address of Baker Sanders LLC, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.

Moreover, each correspondence to defendant from plaintiff’s health care provider occurred through its attorneys, Baker Sanders, LLC., whose letterhead clearly states the following: “For all Correspondence: 100 Garden City Plaza, Suite 500, Garden City, NY 11530.”

Yet the address on defendant’s verification requests for the aforementioned NF-3 claims, show they were mailed to: Medalliance Medical Health Services, Curtis Blumenthal, D.C., 100 [*2]Garden City Plaza, Suite 500, Garden City, New York 11530; Medalliance Medical Health Services, Ruchi Shah Pt, 100 Garden City Plaza, Suite 500, Garden City, NY 11530; Medalliance Medical Health Services, Lamercie Jean Jacques, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.

The verification requests were improperly addressed as they did not conform to the specific address provided by the plaintiff provider in its NF-3 notice of claim forms. There is no evidentiary proof submitted which indicates the plaintiff provider had offices at the address indicated on the verification letters. As a result, receipt of the verification letters cannot be presumed, and it may be inferred that the provider did not receive the verification request letters, which would therefore excuse any non-compliance thereof (see Celtic Med. P.C. v Progressive Ins. Co., 194 Misc 2d 429 [Dist Ct, Nassau Cty 2002]). Therefore, the Court finds that defendant has failed in its burden to make a prima facie showing of entitlement to summary judgment of dismissal, as a matter of law, with proof in admissible form sufficient to establish the lack of any material issues of fact, concerning the alleged mailing of verification requests to plaintiff provider (see Alvarez v Prospect Hospital, 68 NY2d 320,324 [1986]); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]). Defendant has failed to demonstrate that it mailed verification request letters to the proper address provided by the plaintiff provider (see Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co., 53 Misc 3d 136[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2016], citing St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co., 50 AD3d 1123 [2nd Dept 2008]).

Defendant thereby failed to show that it properly tolled the 30 calendar days in which each claim must be paid or denied, from the date of receipt of the claim (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1]), by making additional verification requests within 15 days from its receipt of each claim (see 11 NYCRR 65-3.5[b]; NY & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2nd Dept 2006]), thereby making each claim overdue (see 11 NYCRR 65-3.8[a][1]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2nd Dept 2005]), and necessitating the denial of this part of defendant’s motion for summary judgment of dismissal.

The Court also awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498 [2015]; St. Luke’s Roosevelt Hospital v American Transit Ins. Co., 1 AD3d 498 [2nd Dept 2003]; Insurance Law §5106[a]); and it is further

ORDERED that the part of defendant’s motion seeking summary judgment of dismissal for 10 NF-3 claim forms with dates of service (“DOS”) of 11/14/17, 01/08/18, 03/26/18, 03/31/18, 04/18/18, 05/07/18, 07/14/18, 07/26/18 through 07/28/18, 08/09/18, and 08/24/18, for the respective sums of $41.04, $34.68, $111.80, $111.80, $111.80, $80.02, $111.80, $223.60, $111.80, and $111.80, for a total of $1,050.14, on the grounds of non-receipt of the NF-3 billing after the medical services were allegedly rendered, as required within 45 days by 11 NYCRR 65-1.1(d), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b).

The Court determines that the affidavit of Brian Edejer, the supervisor of the mailing [*3]department of plaintiff’s counsel, demonstrates his personal familiarity with and supervision over the standard office practices and procedures of his department, geared to insure the proper addressing and mailing of NF-3 no-fault claim forms to insurance carriers. He asserts that his review of the files and computer records of the mailing department made and kept in the regular and ordinary course of business for the instant matter, shows that the NF-3 claim forms and the cover letters from plaintiff’s counsel’s office, were delivered by plaintiff to the custody of the U.S. Postal Service, and have not been returned as undeliverable. He submits a stamped proof of mailing from the U.S. Postal Service for each of the 10 NF-3 claim forms, which confirm their receipt by the U.S. Postal Service, for mailing to defendant.

The Court also finds plaintiff has demonstrated it is entitled to the presumption of timely receipt by defendant of the 10 NF-3 claim forms, despite defendant’s allegations of denial of receipt (see A.B. Medical Services, PLLC. v MVAIC, 6 Misc 3d 131 [A][App Term, 2nd & 11th Jud Dists 2005]), especially in light of the stamped proof of mailing for each claim from the U.S. Postal Service which remains unrefuted by defendant (see St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co., supra, at 1124; Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2nd Dept 2003]; Quality Psychological Services, P.C. v Hartford ins. Co., 38 Misc 3d 1210[A][Civ Ct, City of NY, Kings Cty, 2013]; Elmont Open MRI & Diagnostic Radiology, P.C., 30 Misc 3d 126[A][App. Term, 9th & 10th Jud. Dists 2010]).

In the view of the Court, defendant’s denial of receipt of the 10 NF-3 claim forms, and the statements of the general and customary standard office practices and procedures of defendant’s mailing department for receipt of incoming mail, as supported by the affidavit of defendant’s litigation examiner, Matthew Dunleavy, are insufficient (see S & M Supply Inc. v GEICO Ins., 2003 NY Slip Op 51192 [App Term, 2nd & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A][App Term, 2nd & 11th Jud Dists 2004]), under the instant circumstances, to raise a triable issue of fact (see Matter of Fodor v Mena America Bank, N.A., 34 AD3d 473 [2nd Dept 2006]; Matter of State Farm Mut. Auto. Ins. Co. v Kankam, 3 AD3d 418 [2nd Dept 2006]).

Therefore, since defendant has failed to demonstrate it paid or denied the 10 NF-3 claims in the total sum of $1,050.14, within 30 calendar days of receipt of each claim (see 11 NYCRR 65-3.8[c]), or properly sought verification requests to toll the date within 15 days of receipt of each claim (see 11 NYCRR 65-3.5[b]; NY & Presbyt. Hosp. v Allstate Ins. Co., supra; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra), each of the 10 NF-3 claims is overdue (see 11 NYCRR 65-3.8[a][1]), and the part of defendant’s motion for summary judgment of dismissal of the 10 NF-3 claims totaling $1,050.14, is denied.

The Court also awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498 [2015]; St. Luke’s Roosevelt Hospital v American Transit Ins. Co., 1 AD3d 498 [2nd Dept 2003]; Insurance Law §5106[a]); and it is further

ORDERED that the part of defendant’s motion for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212, for the NF-3 claim forms with dates of service (“DOS”) of 01/03/18, 01/10/18, 01/15/18, 01/16/18, 01/24/18, 02/14/18, 02/19/18, 02/20/18, 02/26/18, for the respective amounts of $26.42, $34.68, $34.68, $41.04, $34.68, $34.68, $34.68, [*4]$41.04 and $34.68, for the total of $316.58, on the grounds the medical services rendered by plaintiff were not medically necessary, is denied.

The Court determines that the factual basis and medical rationale of the conflicting medical opinions and conclusions offered by Dr. Daniel Sposta, D.C., L.Ac., by his peer review report and affidavit dated 10/06/17, which cut off any further chiropractic treatments effective 11/09/17 (see 11 NYCRR §65-3.8 [b][4]; Delta Dignostic Radiology, P.C. v American Mfrs. Mut. Ins. Co., 12 Misc 3d 145[A][App Term, 2nd & 11th Jud Dists 2006]), and the rebuttal affidavit of plaintiff’s expert and treating Chiropractor, Dr. Curtis Blumenthal, D.C., sworn to on 11/18/20, which disputes the findings and rebuts the conclusions of Dr. Sposta (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A][App Term, 2nd, 11th & 13th Jud Dists 2012]; Pan Chiropractic P.C. v Mercury Ins. Co., 24 Misc 3d 136[A] [App Term, 2d, 11th & 13th Jud Dists 2009]), meaningfully demonstrate the collective existence of triable issues of fact as to whether there was a lack of medical necessity for the billed services at issue, rendered by plaintiff’s assignee (see Throgs Neck Multicare, P.C. v Mercury Ins. Co., 52 Misc 3d 138[A][App Term, 2nd Dept, 9th & 10th Jud Dists 2016]; Western Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A][App Term, 9th & 10th Jud Dists 2015]; Alur Med. Supply, Inc. v Geico, 31 Misc 3d 126[A][App Term, 2nd, 11th & 13th Jud Dists 2011]), which must be determined at a trial (see also Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra); and it is further

ORDERED that the part of the motion by defendant seeking summary judgment of dismissal of the NF-3 claim form with the date of service (“DOS”) of 11/14/17, received by defendant on 02/12/18, in the sum of $41.04, and denied by defendant on 02/26/18, pursuant to 11 NYCRR 65-1.1(d), which requires submission of a no-fault claim within 45 days of rendered services, is denied.

Plaintiff’s affidavit of its mailing supervisor, Brian Edejer, acknowledges that the NF-3 claim form for DOS of 11/14/17, along with plaintiff’s counsel’s cover letter, were mailed to defendant on 02/06/18. Plaintiff justifies the late claim submission beyond the 45 days of rendered services, based upon the cover letter dated 02/06/18 from plaintiff’s counsel, Baker Sanders, LLC. to defendant, which informed defendant the claim was “previously submitted incorrectly to another insurance company based on the information provided to our law firm at the time and/or based on a difficulty in ascertaining the proper carrier.”

However, plaintiff also contends that defendant waived the right to challenge the late submission for the $41.04 NF-3 claim received by defendant on 02/12/18 for the DOS of 11/14/17, based upon defendant’s repudiation of liability as of 11/09/17 on the grounds of Dr. Daniel Sposta’s negative independent medical examination (“IME”), because a repudiation of liability excuses any obligations to comply with any conditions precedent under the insurance policy (see Ighara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 217-218 [1984]).

The Court determines that defendant has repudiated liability by denying all no-fault benefits based upon the opinion of its medical expert, Dr. Daniel Sposta, D.C., L.Ac., dated 10/06/17, which cut off any further chiropractic treatments effective 11/09/17, based upon the IME of the same date, which found there was no medical necessity for further chiropractic treatment. “This disclaimer of coverage excused the [claimant] from further compliance with conditions precedent regarding time limitations for submitting medical proofs of loss for the treatments she nevertheless continued to undergo” (see State Farm Ins. Co. v Domotor, 266 [*5]AD2d 219 [2nd Dept 1999]; see also State Farm Mut. Auto Ins. Co. V Urban, 78 AD3d 1064 [2nd Dept 2010], citing State Farm v Domotor, supra; Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A][Civ Ct, Kings Cty 2009]; Greater Forest Hills Physical Therapy, P.C. v State Farm Auto Ins. Co., 45 Misc 3d 1215[A][D Ct, Nassau Cty 2014]).

Here, plaintiff’s DOS occurred on 11/14/17, five days after the cut-off date of 11/09/17. “An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy” (see State Farm Ins. Co. v Domotor, supra at 220, 221). The insurance carrier “must ‘stand or fall upon the defense upon which it based its refusal to pay’…i.e., because ‘no treatment [was] necessary'” (Id., at 221).

Therefore, the Court finds that if the medical opinion of Dr. Daniel Sposta, D.C., L.Ac., should prevail at trial, on the grounds the medical services rendered by plaintiff were not medically necessary, then the part of defendant’s motion to dismiss the NF-3 claim form with the DOS of 11/14/17, in the sum of $41.04, received by defendant on 02/12/18, shall be deemed denied, on the basis defendant repudiated liability, which excused plaintiff from compliance with the time limitations for submitting medical proofs contained in the policy (see State Farm Ins. Co. v Domotor, supra).

However, in the event the medical opinion of Dr. Daniel Sposta, D.C., L.Ac, does not prevail at trial, on the grounds the medical services rendered by plaintiff were medically necessary, the Court finds under this set of circumstances, plaintiff has raised a triable issue of fact (see CPLR 3212[b]), concerning whether plaintiff was reasonably justified in submitting its NF-3 claim form beyond the 45 days of rendered service (see 11 NYCRR 65-1.1[d]), based upon the standards set forth in 11 NYCRR 65-3.5[l][insurer must give due consideration to plaintiff’s late justification explanation]; see also Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A][App Term, Sup Ct, 1st Dept 2009][insurer must give “appropriate consideration for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer”]), which also must be determined at trial (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra); and it is further

ORDERED that the part of defendant’s motion seeking summary judgment of dismissal pursuant to CPLR 3212, for NF-3 claim forms with dates of service (“DOS”) of 02/05/18, 02/05/18, 02/14/18 through 02/19/18, 02/16/18, 02/24/18, 02/26/18, 05/10/18, 05/17/18 through 05/26/18, 05/19/18 through 06/13/18, 05/21/18 through 06/09/18,^[FN1] 05/23/18 through 06/16/18, 04/02/18 through 06/23/18,^[FN2] 06/27/18 through 07/07/18, 06/30/18 through 07/24/18, 07/05/18, [*6]07/10/18 through 07/19/18, 07/31/18, 08/02/18, 08/04/18, 08/18/18, 08/25/18 through 09/01/18 and 08/29/18 through 09/05/18, for the respective sums of $64.07, $101.87, $203.74, 101.87, $101.87, $101.87, $111.80, $223.60, $223.60, $335.40,^[FN1] $234.67, $536.52, $335.40, $447.20, $111.80, $223.60, $111.80, $111.80, $111.80, $111.80, $223.60 and $223.60, for a total submission of 22 NF-3 claims in the sum of $4,353.28, on the grounds that plaintiff’s claim amounts exceeded the permissible fee schedules of the official NY Workers’ Compensation Fee Schedule (“Fee Schedule”), as well as the Travelers Corechoice Preferred Provider Organization (“PPO”),^[FN3] is denied.

However, defendant is granted partial summary judgment of dismissal, for the sums of $53.73, $56.68, $103.30, $51.65, $51.65, $51.65, $56.69, $113.38, $113.38, $154.95, $103.30, $206.60, $154.95, $206.60, $51.65, $103.30, $51.65, $51.65, $51.65, $51.65, $113.38 and $103.30, for a total of $2,056.74, for its prior partial payments made to plaintiff provider, as demonstrated by the proofs submitted in Exhibit G attached to the affirmation of defendant’s counsel, showing defendant’s individual checks made payable to plaintiff provider, which were then deposited by plaintiff provider in its own account, but not credited by plaintiff provider in its complaint, which proof was not refuted by plaintiff.

Furthermore, the Court finds that defendant has failed to demonstrate a prima facie entitlement to summary judgment for dismissal, with proof in admissible form sufficient to establish there are no material issues of fact, for the sufficiency of the remaining sum of $2,296.54 ($4,353.28 less $2,056.74) (see Xiang Fu He v Troon Mgt. Inc., 34 NY3d 167, 175 [2019]).

Defendant has failed to present a sworn statement from a Professional Coder, or from an experienced Claim Representative, along with references to the applicable fee schedule, as sufficient proof demonstrating defendant’s denial at proper no-fault rates (see Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d 147[A][App Term, 2nd Dept, 9th & 10th Jud Dists 2017]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140[A][App Term, 2d, 11th & 13th Jud Dists, 2015]).

Moreover, an affidavit of a no-fault/litigation examiner or professional medical coder/biller must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT codes for the services rendered in calculating the amount plaintiff is entitled to be reimbursed, which is lacking herein (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; Liberty Chiropractic P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2016]).

Finally, there is insufficient proof to establish whether the fees submitted by plaintiff [*7]provider were correctly subject to reduction under the fee schedule and the PPO contract, as a part of the PPO contract pertinent to this matter was redacted and not provided by defendant, and there is no copy of a signed PPO contract establishing a nexus between the medical provider and the PPO network, for the time frames the medical services were rendered. Nor is there sufficient proof demonstrating that PPO rates were applicable to the instant matter. Furthermore, plaintiff’s contention that the name of Curtis Blumenthal, D.C. (affiliated with plaintiff medical provider), does not appear on any of the physical therapy bills paid under PPO rates, also raises questions of fact.

Any remaining contentions of the parties, are unavailing or have been rendered academic.

Submit judgment.

The foregoing constitutes the decision and order of this Court.

Dated: June 30, 2021
HON. JAMES F. MATTHEWS
J.D.C.

Footnotes

Footnote 1:The affirmation of Shana Kleinman overlooked providing an explanation for this particular NF-3 claim form, for dates of services (“DOS”) of 05/21/18 through 06/09/18, received by defendant on 06/21/18, in the claim sum of $335.40, with a partial payment by defendant tendered to plaintiff in the sum of $154.95 (by check #: 25693181, dated 07/05/18), leaving a disputed amount in defendant’s NF-10 denial form of $180.45. However, the proof submitted with the affirmation of Shana Kleinman in Exhibit G factually substantiates this set of facts, which includes a copy of both sides of the tendered check for $154.95 deposited by plaintiff in its account, which factual proof the Court accepts.

Footnote 2:In paragraph 176 of Shana Kleinman’s affirmation, it states that the dates of services (“DOS”) are from 5/31/18 through 6/23/18. However, the actual proof of the NF-10 denial of claim in Exhibit G, states the DOS is 04/02/18 through 06/23/18, which dates the Court accepts.

Footnote 3:Defendant asserts that the provider is a voluntary participant in Traveler’s Corechoice Preferred Provider Private Organization (“PPO”), and as a result for each pertinent claim, defendant applied the fee schedule amount, and then the PPO contract amount, with the remainder of the claim being denied. Corechoice Network (“Corechoice”) processes the PPO claims.

SMCV 322-16
James F. Matthews, J.

Upon the following papers numbered 1 to 24 read on this motion by defendant for an order of dismissal pursuant to CPLR 3126 for non-compliance with interrogatories and combined discovery demands or an order striking plaintiff’s Notice of Trial and an order compelling plaintiff’s response to discovery demands pursuant to CPLR 3124, and an order compelling an EBT of plaintiff’s owner by a date certain ; by Notice of Motion/Order to Show Cause and supporting papers 1-4, 19 ; Notice of Cross Motion and supporting papers 20-22 ; Answering Affidavits and supporting papers 20-22 ; Replying Affidavits and supporting papers 23,24 ; Filed papers ; Other exhibits: 5-18 ; (and after hearing counsel in support of and opposed to the motion),

it is,

ORDERED that the motion by defendant, seeking an order vacating plaintiff’s Notice of Trial and striking the action from the Trial Calendar, pursuant to 22 NYCRR §208.17^[FN1] and dismissing plaintiff’s complaint pursuant to CPLR 3126 on the ground that plaintiff has failed to comply with defendant’s interrogatories and combined discovery demands, is denied, conditioned upon plaintiff providing specific and meaningful responses (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; CPLR 3124) to all of the prior discovery and inspection demands of defendant served on 06/24/16, to the extent plaintiff has not complied, including the Combined Demands pursuant to CPLR 3120, Notice of Examination Before Trial pursuant to CPLR 3101 and 3107, Notice for Discovery and Inspection, Request for Expert Discovery, and Demand for Verified [*2]Written Interrogatories, within 30 days of the date of service of this Order by the Court; and it is further conditioned upon plaintiff providing, in particular, a clear copy of the following documents requested in defendant’s motion: management agreements, lease agreements, tax returns^[FN2] and bank records, as per defendant’s written demands. The Court finds there are special circumstances which warrant disclosure of plaintiff’s corporate income tax returns (see CPLR 3101; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A][App Term, 2nd & 11th Jud Dists, 2008]). Defendant’s request in its motion for “corporate records” and “other tax records” is denied, as being vague, broad and ambiguous, making compliance impossible; and it is further conditioned upon plaintiff, by an officer, director, member, agent or employee having the information (see CPLR 3133[b]), serving on defendant a meaningful written answer under oath, or a meaningful objection under oath stating the reasons for the objection, with reasonable particularity (see CPLR 3133[a]), to the extent plaintiff has not complied, to each interrogatory previously served upon it, with each question answered separately and fully and with each answer preceded by the question to which it responds, within 30 days of the date of service of this Order by the Court (see CPLR 3133[b]). In the view of the Court, plaintiff has failed to timely object to defendant’s interrogatories “with reasonable particularity the reasons for each objection” (see CPLR 3122[a]).

The Clerk of the Court is directed to adjourn the Notice of Trial to a date at least 90 days beyond the date this order is mailed to the parties.

The Court notes that plaintiff provided responsive papers dated 07/05/16 to defendant’s discovery demands of 06/24/16, belatedly on 11/01/16^[FN3] , which responses were rejected by defendant on 11/02/16 as being insufficient and unresponsive in a material way. The discovery demands are grounded in plaintiff’s complaint which seeks recovery of first-party no-fault benefits for medical services rendered to plaintiff’s assignor on 08/20/15 in the total amount of $5,200.00, as the result of an automobile accident of 07/02/15; and it is further

ORDERED that defendant’s alternative motion pursuant to CPLR 3124, seeking to compel plaintiff’s owner to appear for an examination before trial (“EBT”) at a date certain, is granted, to the extent that plaintiff corporation shall appear at an examination before trial (“EBT”) through a person chosen by plaintiff, who is knowledgeable of the facts and circumstances of all aspects of this matter as alleged in the verified complaint (see Sladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803 [2nd Dept 2008]), and is prepared to testify under oath, at a date, time and place certain set by defendant, convenient to plaintiff, within 30 days of the date of receipt of this order, with any adjournments only upon consent of the attorneys for the parties, but in no event beyond 45 days of the date of receipt of [*3]this order; and it is further

ORDERED that in the event of plaintiff’s failure to comply with this Order, plaintiff shall be precluded from offering into evidence at the trial of this action, any documents or testimony that were called for in defendant’s discovery demands, to which meaningful responses have not been timely served, pursuant to CPLR 3126(2) and (3), in addition to any other reasonable remedies requested by defendant which the Court deems appropriate; and it is further

ORDERED that plaintiff’s cross-motion for a protective order pursuant to CPLR 3103, is denied. Plaintiff failed to object by filing a motion for a protective order within 20 days of receipt of defendant’s demands and the untimely request must be denied (see CPLR 3122[a]; Hunt v Odd Job Training, 44 AD3d 714 [2nd Dept 2007]). Where a plaintiff has failed to timely object to the propriety of discovery, “plaintiff is obligated to produce the information sought, except as to matters which are palpably improper or privileged” (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A][App Term, 9th & 10th Jud Dists 2009]; see also Fausto v City of New York, 17 AD3d 520 [2nd Dept 2005]). Where discovery demands concern matters which defendant is precluded from raising, “they are palpably improper notwithstanding the fact that plaintiff did not timely object thereto” (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra; A.B. Medical Services v Utica Mutual Ins. Co., 11 Misc 3d 71 [App Term, 2nd Dept 2006]).

However, where, as here, a defendant seeks discovery to support its defense that plaintiff is ineligible to recover no-fault benefits because it is a fraudulently incorporated professional service corporation (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313 [2005]), the defense is not precluded (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra).

Moreover, contrary to plaintiff’s contentions, the Court finds that defendant set forth detailed and specific reasons supporting the possible fraudulent incorporation of a professional service corporation by plaintiff, which if true, would preclude plaintiff from recovering no-fault benefits under the law, thereby demonstrating defendant’s requests for discovery were both material and necessary to the defense of the within actions (see A.B. Medical Services v Utica Mutual Ins. Co., supra; see also Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., supra). This was provided by the affidavit of David Brooks, Case Manager of the Special Investigative Unit of defendant insurance company (“SIU Investigator”), which was charged with investigating, detecting and combating fraud, including medical care provider fraud, pursuant to Insurance Law §409. His affidavit stems from his investigation, which established a good faith basis for defendant’s allegation that plaintiff may be involved in no-fault based fraudulent activities and provided a sufficient foundation for defendant’s discovery requests concerning the manner of plaintiff’s ownership, operation and control of its professional corporation (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., supra).

As such, discovery seeking a copy of the contract with a management company and a copy of the lease, is not palpably improper, as plaintiff has not demonstrated the information is privileged. Therefore, defendant is entitled to production of the documents and related information (Id.).

Furthermore, the Court finds that so much of defendant’s discovery requests which seek information regarding whether plaintiff was fraudulently incorporated, are material and necessary (see Midwood Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., 14 Misc 3d 131[A][App Term, 2nd & 11th Jud Dists 2007]), and must be provided pursuant to defendant’s pertinent [*4]discovery demands.

In addition, plaintiff contends defendant’s verified answer fails to plead affirmative defenses relating to fraudulent incorporation with any type of specificity or particularity, or that facts may exist concerning whether plaintiff is properly incorporated, thereby waiving the defenses and making discovery unnecessary.

The Court finds that a review of defendant’s affirmative defenses 1, 19, 20, 23, 25 and 27, provides sufficient support for the potential merit of defendant’s defense of fraudulent incorporation, making plaintiff ineligible to recover no-fault benefits and making discovery material and necessary (see CPLR 3101[d]; Radiology Today, P.C. v GEICO, 32 Misc 3d 4 [App Term, 2nd Dept 2011]). It is well settled that “fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits and such defense is non-waivable and may be asserted any time (emphasis added)” (see Park Avenue Medical Care, P.C. v GEICO, 35 Misc 3d 1237[A][D Ct, Suffolk Cty 2012]; see also State Farm Mut. Auto Ins. Co. v Mallela, supra at 320; Midwood Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., supra).

Moreover, “there is no requirement that a defense predicated upon the failure to comply with ‘New York State or local licensing requirement[s]’ (Insurance Department Regulations 11 NYCRR §65-3.16[a][12]), be pleaded with particularity pursuant to CPLR 3016[b]” (see Radiology Today, P.C. v GEICO, supra at 7).

The failure to state a Mallela type defense “with particularity in the answer does not preclude the defendant from seeking pre-trial disclosure related thereto” (see Park Avenue Medical Care, P.C. v GEICO, supra at *1). A Mallela defense is not subject to preclusion (see Lexington Acupuncture, P.C. v State Farm Mut. Auto Ins. Co., 12 Misc 3d 90.92[App Term, 2nd & 11th Jud Dists 2006]).

Furthermore, where a plaintiff health care provider fails to abide by relevant licensing laws, the corporation lacks standing to bring actions for recovery of assigned first-party no-fault benefits (see Quality Medical Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A][App Term, 2nd, 11th & 13th Jud Dists 2010]). Here, since defendant has asserted affirmative defenses in its answer challenging the standing of plaintiff, defendant is entitled to Mallela discovery (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2nd, 11th & 13th Jud Dists 2012]); and it is further

ORDERED that plaintiff’s cross-motion seeking, in the alternative, to compel defendant to produce its SIU Investigator and any claims representative who was responsible for denying the instant claim and/or referring the matter to SIU for deposition, is denied. Defendant has timely objected to this relief within 20 days of receipt of plaintiff’s demand (see CPLR 3122[a]).

The attorneys for plaintiff filed a Notice of Trial and a Certificate of Readiness for Trial dated 12/22/16, which was received by the Court on 01/02/17. Plaintiff’s attorneys stated to the Court in the Certificate of Readiness for Trial, that “discovery proceedings now known to be necessary completed” and “there are no outstanding requests for discovery,” which statements were certified pursuant to 22 NYCRR §130-1, and further stated that the Notice of Trial was “not frivolous.” The Court is holding plaintiff to its filed statements, and the EBT request is denied, accordingly.

The foregoing constitutes the decision and order of this Court.

Dated: July 24, 2017

Footnotes

Footnote 1: The proper section for seeking an order striking plaintiff’s Notice of Trial in District Court is 22 NYCRR §212.17.

Footnote 2: Discovery of Corporate tax returns are permissible where special circumstances are shown (see CPLR 3101[a]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A][2nd & 11th Jud Dists 2008]). However, personal Federal and State Income tax returns of owner are not discoverable, “in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (see Altidor v State-Farm ins. Co., 22 AD3d 435 [2nd Dept 2005]).

Footnote 3: Plaintiff’s papers were approximately four and a half months late and were therefore untimely (see CPLR 3122[a]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 122 [App Term, 2nd & 11th Jud Dists 2006]).

SMCV 0083-16
James F. Matthews, J.

Upon the following papers numbered 1 to 10 read on this motion for an order of summary judgment dismissing the complaint ; by Notice of Motion /Order to Show Cause and supporting papers 1,2,6 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 7,9 ; Replying Affidavits and supporting papers 10 ; Filed papers; Other exhibits: 3-5,8, ;(and after hearing counsel in support of and opposed to the motion),

it is,

ORDERED that the motion by defendant for summary judgment dismissing the complaint, pursuant to CPLR 3212, is denied.

Defendant moves by summary judgment for dismissal of plaintiff’s complaint, which seeks recovery of first-party no-fault benefits in the sum of $6,651.66 for medical services rendered to plaintiff’s assignor on 09/21/15 through 10/26/15 as the result of an automobile accident which occurred on 09/03/15.

The ground for dismissal is defendant’s contention that the claims totaling $6,651.66 are not overdue, as the time to pay or deny has not commenced, due to the plaintiff’s failure to provide the information requested in its verification requests and follow-up verification requests, for each of the collective claims. Defendant claims an “exhaustive” search of its computer and paper file revealed that the sought verification information was never received by defendant.^[FN1]

In opposition to the motion, plaintiff asserts defendant has failed to demonstrate by admissible evidence, that the verification requests were timely and properly mailed to plaintiff. Also, plaintiff contends the affidavits submitted in support of defendant’s motion, have not provided a foundation for admission of its business records, a necessary part of demonstrating plaintiff’s office practice and procedures.

Plaintiff further asserts defendant has not shown “good reasons” for demanding the verifications which tolled the time from which defendant had to pay or deny the claims. Finally, plaintiff contends it responded to the verification requests of defendant by providing all the documents within its control, which it claims were already in defendant’s possession, thereby making defendant’s verification requests defective and precluding defendant from raising non-coverage defenses to plaintiff’s claims.

No-fault regulations mandate that a claim for health services expenses be submitted by written proof of claim to the insurer, no later than 45 days after the date that health services were rendered (see 11 NYCRR §65-2.4[c]). After receipt of the written proof of claim, a no-fault claim is overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1],[c]).

The thirty days may be extended where an insurer requests additional verification within 15 days of receipt of the claim (see 11 NYCRR 65-3.5[b]). If the insurer has not received a verification from the plaintiff within 30 days of the initial request, an insurer must send a follow-up verification request by phone call or mail within 10 days to the requested party (see 11 NYCRR §65-3.6[b]). This tolls the insurer’s obligation to pay or deny the claim until it receives the additional information requested (see 11 NYCRR 65-3.8[a][1]; Hospital For Joint Diseases v Traveler’s Property Casualty Ins. Co., 9 NY3d 312 [2007]).

Where a requested verification is not provided an insurer is not required to pay or deny the claim (see 11 NYCRR §65-3.8[3]; NY & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2nd Dept 2004]). However, an insurer may deny the claim after 120 calendar days if plaintiff does not provide all of the requested verification under its control or possession, or written proof providing reasonable justification for its failure to comply (see 11 NYCRR §65-3.5[o], for all claims submitted after 4/1/13). Also, an insurer’s “non-substantive, technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame” shall not “negate an applicant’s obligation to comply with the request or notice” (see 11 NYCRR §65-3.5[p], for all claims submitted after 4/1/13).

Though an insurer is entitled to request and receive information necessary to the processing and verifying of the provider’s claim (see 11 NYCRR §65-3.5[c]), the scope of the requested materials are not unlimited (see generally 11 NYCRR 65-3.6[b]). Insurance regulations require the existence of “good reasons” to demand verification (see 11 NYCRR 65-3.2[c]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2nd Dept 2007).

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts and the affidavit shall recite all the material facts and show there is no [*2]defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212[b]). A conclusory affidavit or an affidavit by an individual who lacks personal knowledge of the facts does not satisfy the proponent’s prima facie burden (see JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373 [2005]).

Here, the Court determines that defendant has failed to demonstrate a prima facie entitlement to summary judgment for dismissal with proof in admissible form sufficient to establish there are no material issues of fact (see Alvarez v Prospect Hospital, supra; Stephen Fogel Psychological, P.C. v Progressive Ins. Co., 35 AD3d 720, 721 [2nd Dept 2006]; Prime Psychological Services P.C. v Nationwide Prop. & Cas. Ins. Co.,24 Misc 3d 230, 232 [Civ Ct. Richmond Cty. 2009]).

The Court notes that the affidavit of Regina Abbatiello, No-Fault Claims Adjuster, demonstrates she was personally familiar with the standard office policy and operating procedures for the processing of no-fault claims in litigation or arbitration, including payments and denials of benefits. She states her affidavit was given after a detailed review “of all document/ correspondence and computer records maintained by Global in accordance with its standard operating procedures that are recorded/document and maintained under claim no. NF15930301.”

She further states she generated the verification requests, and follow-up additional verification requests with carbon copies, to the plaintiff assignor at the address shown on the NF-3 claim forms, seeking information, including MRI films, and the referring doctor’s report on the need for multiple MRI studies. Defendant’s records show that a verification request was sent out on 11/18/15 for each claim which had been received on 11/09/15.

Upon not receiving a response, a second verification request was sent out on 12/18/15. No response with the requested information was provided.

The Court finds the stated procedure in the instant matter is conclusory and lacking in relevant specifics to set forth the standard office practice or procedure used to ensure that items were properly addressed and mailed (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App.Term 2nd Dept 2007]). The proof establishes that verification requests are placed by the adjusters in the outgoing mail bin. However, the proof fails to sufficiently demonstrate what happens to the verification requests after placement in the mail bin. It appears that mixed mail for defendant’s office is placed in the mail bin, not just mail being sent for verification requests. Since the mail is submitted in a sealed envelope, the procedure described fails to show the contents of each envelope which is being processed (see Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept 1996]; see also S & M Supply Inc. v GEICO Ins. Co., 2003 NY Slip Op 51192[U][App Term, 2nd & 11th Jud Dists 2003]).Consequently, it does not demonstrate that the verification requests to plaintiff were inside the envelopes taken by the defendant’s mailing clerk to the U.S. Post Office in the afternoon. In addition, there is no affidavit from an employee mail clerk attesting to the actual mailing of the verification requests. The Court also notes the lack of any certificates of mailing signed and stamped by an employee of the U.S. Postal Service to confirm the mailing of the defendant’s requests for verification, which would give rise to a rebuttable presumption of mailing by defendant (see A.B. Med. Servs. PLLC. v USAA Cas. Ins. Co., 6 Misc 3d 126[A][App. Term, 2nd & 11th Jud. Dists. 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 Ad2d 679 [2nd Dept 2001]).

Moreover, a copy of defendant’s actual letters of requests for further verification are [*3]attached as an exhibit to the moving papers. However, there is no admissible statement from any person having knowledge of the facts which would sufficiently link the standard office practices and procedures for the generating and mailing of these verifications. Nor is there any sworn statement from a person with knowledge, for admitting these letters as business records (see CPLR 4518[a]). The only connecting statement is made by the affirmations of defendant’s counsel, which have no evidentiary value, as an attorney’s affirmation not based upon personal knowledge is without probative value or evidentiary significance (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2nd Dept 2006]; see also Wesh v Laidlaw, 59 AD3d 534 [2nd Dept 2009]). Also, defendant’s attorneys have not provided a proper foundation for an opinion (see People v Goldstein, 6 NY3d 119 [2005]). In addition, an attorney’s opinion which is not based upon personal knowledge “is without evidentiary value and thus unavailing” (see Zuckerman v City of New York, supra at 563).

The Court further finds that defendant has failed to establish an objective, reasonable basis for the contents of the verification demands alleged to have been mailed to plaintiff (see 11 NYCRR 65-3.2[c]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2nd Dept 2007).

The evidence shows that verification requests were responded to by plaintiff’s attorneys, by 7 cover letters each dated 12/18/15, for the respective claim amounts of: $878.67, $878.67, $878.67, $878.67, $912.00, $959.61 and $879.73. In each letter, plaintiff’s attorneys stated:

“Enclosed please find a further response to your verification request”(emphasis added) concerning the above-referenced claim. These documents constitute all available documentation provided by the above-referenced provider. Accordingly, kindly remit payment. Failure to do so may result in litigation being commenced”

Attached to each letter was a copy of a pertinent medical report showing the results of an: MRI left wrist without contrast, MRI left hip without contrast, MRI left foot without contrast, MRI left shoulder without contrast, MRI lumbar spine without contrast, MRI thoracic spine without contrast, and MRI cervical spine without contrast.

Plaintiff has demonstrated it satisfied its duty to timely communicate with defendant, providing a statement of reasonable justification why it could not provide what further verification sought, as it had provided all of the available documents (see 11 NYCRR §65-3.5[o]; see also Dilon Med. Supply Corp. v Travelers Ins. Co.,7 Misc 3d 927, 931-932 [NY City Civ. Ct. 2005]), and it would be unable to fully satisfy the insurer’s request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 Ad2d 553 [2nd Dept 1999]). A defendant also has a duty to act, by payment or denial of the claim or request for further verification, upon receipt of plaintiff’s response to defendant’s verification request, so long as plaintiff’s documentation is arguably responsive to defendant’s verification request (see All Health Med. Care v Government Employees Ins. Co., 2 Misc 3d 907 [NY City Civ Ct. 2004]).

Here, defendant remained silent in the face of plaintiff’s verification responses, and failed to demonstrate “good reason” to support its continued verification requests, as required by 11 NYCRR 65-3.2[c]).

Moreover, there is no sworn statement from anyone with knowledge, which provides a reasonable basis for the verification demands. The affidavit of Regina Abbatiello (No-Fault Examiner) states that upon receipt of the claim with billing, “the following represent the bills that [*4]were delayed pending the receipt of additional verification.” She further states: “the additional verification requests and follow-up additional verification requests were sent to Plaintiff Assignee with appropriate carbon copies in accordance with the regulations.”

She then relates what was sought: “The information that was sought included: copies of mri films; referring doctors report on the need for multiple mri studies.” However, the foregoing statements are conclusory, and no reason is stated for the verification requests. Nor is any recognition or credit acknowledged in her affidavit for the 7 letters of 12/18/15 with MRI medical reports supplied by plaintiff in response to the verification demands.

For the foregoing reasons, the Court determines defendant has failed to establish a prima facie showing of entitlement to summary judgment dismissing the complaint as a matter of law.

Accordingly, the motion for summary judgment by defendant dismissing plaintiff’s complaint pursuant to CPLR 3212, is denied.

The foregoing constitutes the decision and order of this Court.

Dated: July 6, 2017

Footnotes

Footnote 1: The affidavit of the No-Fault Claims Adjuster fails to state who conducted the “exhaustive” search of its computer and paper file to determine that the verification information sought was never received by the defendant.

[*1]

District Court of Suffolk County, Fourth District, November 1, 2007

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola, for plaintiff. Rivkin, Radler, LLP, Uniondale, for defendant.

{**18 Misc 3d at 797} OPINION OF THE COURT

G. Ann Spelman, J.

{**18 Misc 3d at 798}This action was commenced by plaintiff Custom Orthotics of NY, Inc. as assignee of Francisco J. Ramirez against defendant State Farm Mutual Auto Ins. Co. to recover first-party no-fault benefits. A trial de novo was held on July 16, 2007, and memoranda in support of the parties’ positions were submitted on or before August 6, 2007. The following is the court’s decision.

The ultimate issue to be considered at the trial of this matter was the medical necessity of the services for which compensation is sought. However, the preliminary issue was the ability of plaintiff to establish its prima facie case based solely upon answers given in the notice to admit, with reference to other documents, as no witness was produced. In fact, neither party had a witness available to testify, yet agreed to proceed with the trial. After introducing the notice to admit and other documents, plaintiff rested. Defendant rested a moment later. Plaintiff then moved for judgment in its favor followed by defendant’s motion to dismiss the complaint. Decision was reserved.

Defendant in its answers to plaintiff’s notice to admit admitted that it received the “claims for no-fault benefits” and “bills that are the subject of this action . . . to the extent that same were attached to the Summons and Complaint,” but specifically “reserve[d] the right to object to the validity of same at trial.” Defendant further admitted that it did not pay the claims or bills, but “only to the extent that no payment is due and owing.” In addition, as to plaintiff’s [*2]request for an admission that defendant received an assignment of benefits form for the claims underlying this action, defendant admitted “only that Plaintiff submitted a form that is purported to be an assignment of benefits” but “reserve[d] the right to object to [the] validity [thereof]” at trial.

Also introduced by plaintiff was defendant’s “Arbitration Submission.” Among other things, the arbitration “packet,” as counsel referred to it, contained defendant’s denial of plaintiff’s claims which was based solely upon a lack of medical necessity.

Among other things, defendant argued that the admissions sought to be used were “at the heart of the matter,” i.e., absolutely essential to plaintiff’s right to recovery, and that the facts underlying the admissions were “hotly contested,” thus precluding the use of the notice and its contents at trial. Defendant argued further that permitting plaintiff to proceed in this fashion improperly dispensed with the requirement that{**18 Misc 3d at 799} plaintiff’s witness establish a proper foundation for introduction of the documents necessary to establish its prima facie case.

The court is aware of persuasive authority supporting plaintiff’s position (see Seaside Med., P.C. v General Assur. Co., 16 Misc 3d 758 [Suffolk Dist Ct 2007] [unanswered notice to admit sufficient to establish prima facie case]; see also Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [App Term, 1st Dept 2007] [holding that defendant’s verified answers to interrogatories were formal judicial admissions and therefore sufficient to establish plaintiff’s entitlement to judgment in its favor]).

The case at bar is distinguishable, however, in that defendant answered the notice to admit, admitting the receipt of certain materials, but pointedly reserving its right to challenge the validity of plaintiff’s documentary evidence at trial. Under the circumstances presented, it cannot be said that plaintiff’s ability to establish a prima facie case is not “hotly contested,” as defendant argues. Significantly, no bills or claim forms were attached to the summons and complaint in the court’s file. Rather, what was appended was a computer printout generated by plaintiff.

In addition, recent case law suggests that the formalities surrounding the introduction of business records into evidence must be observed, and that a decision in favor of plaintiff herein would not survive on appeal (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]; Fortune Med., P.C. v Allstate Ins Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Accordingly, plaintiff’s motion for judgment in its favor is denied, and defendant’s motion to dismiss the complaint is granted.