[*1]

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

APPEARANCES OF COUNSEL

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

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

Augustus C. Agate, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[*1]

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

APPEARANCES OF COUNSEL

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

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

Charles J. Markey, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“3. materials supplied by a chiropractor

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

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

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

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

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

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

Footnotes

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

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

[*1]

Civil Court of the City of New York, Queens County, November 6, 2003

APPEARANCES OF COUNSEL

Biedermann, Hoenig, Massamillo & Ruff, New York City (Philip C. Semprevivo, Jr., of counsel), for defendant. Amos Weinberg, Great Neck (Harvey Woll of counsel), for plaintiffs. Martin N. Kroll, Garden City, for Jamil Abraham M.D., plaintiff.

{**2 Misc 3d at 738} OPINION OF THE COURT

Bernice D. Siegal, J.

The instant action to recover first-party no-fault benefits from defendant Countrywide Insurance Company was commenced on or about May 27, 1997. Attorney Amos Weinberg commenced this action purportedly on behalf of eight named plaintiffs, Park Health Center, Jamil Abraham, M.D., Michael Schur, D.C., Myong Choi, M.D., Robert Stoessel, Ph.D., Robert Ceglio, D.C., Ira Casson, M.D., and Leonard Koven, Ph.D., to recover for alleged services provided to the same assignor, Dale Grant. Issue was joined in June 1997. While on its face this matter appeared to be a simple “No Fault” trial, the issues were far more complicated, as the trial was interwoven with allegations of improprieties against counsel for plaintiffs and plaintiff Jamil Abraham. It is those allegations that gave rise to defendant’s request for sanctions against attorney Amos Weinberg and Dr. Abraham, which are the subject of this decision.

In March 2000, a pretrial deposition was held by defendant of an employee of plaintiff Park Health Center and a purported representative of each of the named plaintiffs. On June 26, 2002, the case was marked ready and proceeded to trial before this court. At trial, defendant claimed that Amos Weinberg, the attorney of record for plaintiffs, did not rightfully represent each and every purported plaintiff. Defendant presented evidence from Dr. Ceglio, by way of affidavit, and Dr. Stoessel, by way of in-court testimony, who claimed they never authorized attorney Weinberg to commence litigation on their behalf. The court also became aware that Dr. Koven was deceased and that his estate was subject to a United States bankruptcy proceeding commenced prior to his death.^[FN1] Dr. Abraham was found in contempt for failing to comply with the decision and order of the United [*2]States Bankruptcy Court dated December 3, 2001 directing the transfer of Dr. Koven’s assets to a bankruptcy trustee. (In re Leonard I. Koven, Bankr Ct, ED NY, Dec. 3, 2001, Milton, J., case No. 897-82570-633.) Further, even if Dr. Koven had ever authorized collections on his behalf, it was apparently withdrawn on August 14, 1997. (See defendant’s exhibit H.)

The trial was adjourned to August 9, 2002, and leave was given to defendant to make a motion to dismiss based upon the newly {**2 Misc 3d at 739}discovered facts and for the imposition of sanctions. These companion motions, the first to dismiss, to sever and to take additional depositions, and the second for sanctions against Dr. Abraham and attorney Weinberg, were made by defendant and noticed for August 9, 2002. They were adjourned on consent to September 13, 2002, when the parties stipulated to the following: that the motion to dismiss was withdrawn without prejudice to renew upon the completion of discovery, that depositions of Drs. Abraham, Casson, Schur and Choi would be held by November 26, 2002, and that their claims would be severed for trial. A control date for trial was set for December 10, 2002. The court set down the sanctions motion for a separate hearing and directed that both Dr. Abraham and attorney Weinberg appear and testify. Mr. Weinberg declined, but appeared on November 15, 2002, only after the court issued a contempt order.^[FN2]

Given the facts that devolved from the testimony of Amos Weinberg, among others, and the documents admitted into evidence during the hearing, the court gave leave for Dr. Abraham to retain counsel to represent his interests in opposing the sanctions motion. After reviewing the evidence adduced at the hearing and the papers submitted pursuant to the motion to dismiss, the court dismissed the actions by way of written decision dated June 30, 2003. The court reserved its decision as to the imposition of sanctions, and makes its determination within this order.

The court finds that the actions of both attorney Amos Weinberg and plaintiff Dr. Jamil Abraham to be the very essence of frivolous conduct, warranting sanctions pursuant to 22 NYCRR 130-1.1 (c). The dismissal order has significant bearing on the imposition of sanctions as against both attorney Weinberg and Dr. Abraham, as the bases for dismissal form the foundation for guiding this court as to the behavior and actions of both Mr. Weinberg and Dr. Abraham.

Dismissal of a case is not, by itself, grounds for sanctions. Rather, sanctions may be imposed for conduct found to be frivolous, that is, such conduct that

“(1) is completely without merit in law and cannot be supported by a reasonable argument for an extension,{**2 Misc 3d at 740} modification or reversal of existing law;

“(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

“(3) it asserts material factual statements that are false.” (22 NYCRR 130-1.1 [c].)

“In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct [*3]was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” (Id.)

While the factors listed above are precatory in determining sanctionable conduct, “what remedy [to impose] is dictated by considerations of fairness and equity.” (Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999].) Moreover, “[s]anctions are retributive, in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.” (Levy, 260 AD2d at 34 [citation omitted].) The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party’s conduct and prejudice to the adversary. (See Vicom v Silverwood, 188 AD2d 1057 [4th Dept 1992].)

The evidence adduced at the hearing clearly proves that attorney Amos Weinberg and Dr. Jamil Abraham engaged in sanctionable conduct. In the order dismissing the claims, the court found that Mr. Weinberg had failed to prove that he actually represented the named plaintiffs, with the exception of Dr. Abraham and Park Health Center. Defendant successfully raised the issue of representation through the affidavit of Dr. Ceglio and Dr. Stoessel’s testimony, who stated that Mr. Weinberg and Dr. Abraham had no authority to act on their behalf. When the court directed Mr. Weinberg and Dr. Abraham to prove their authority to pursue the claims on behalf of the other named plaintiffs, the evidence presented was grossly insufficient. The parties attempted to prove Dr. Abraham’s authority by submitting letters dating back to 1986 from the individual plaintiffs authorizing Dr. Abraham’s d/b/a’s the right to deposit all checks made {**2 Misc 3d at 741}payable to the individual plaintiffs. (See defendant’s exhibit L.) Mr. Weinberg presented no offer of proof for Dr. Choi. He attempted to introduce purported authorizations dated August 20, 2002 from Drs. Casson and Schur. However, the authorizations were annexed to an affirmation which attorney Weinberg admitted he did not sign, although it bore his “signature.”^[FN3] As no valid proof of authorization to act on behalf of Drs. Choi, Casson and Schur was presented, the court dismissed their actions.

The court dismissed the actions of Dr. Abraham and permitted the discontinuance by stipulation of the causes of action of Park Health Center, and on behalf of the trustee in bankruptcy, Dr. Koven. It was only after the case was ready for trial and additional court-ordered discovery was conducted that the parties stipulated to a discontinuance by Park Health Center, which never had a cause of action. There was also no evidence that the deceased Dr. Koven ever authorized Mr. Weinberg or Dr. Abraham to act on his behalf. Further, the court found that Dr. Abraham “supplied false and fraudulent information” by way of his employee testifying at the 2000 deposition and by failing to disclose the bankruptcy and death of plaintiff Dr. Koven. The court further found that “Dr. Abraham, as the self-appointed collections agent for the other purported claimants herein, by his contumacious conduct infected the entire case brought to court” and accordingly dismissed his claim as well. [*4]

Although difficult to untangle the knotted relationship between Dr. Abraham and attorney Weinberg, the court first addresses the improprieties of the officer of the court and his sordid conduct leading to months of hearings and motions. It is this relationship that lays at the heart of Mr. Weinberg’s sanctionable conduct. He abdicated his responsibility as an officer of the court, and in so doing permitted a number of meritless and baseless actions to go forward, forcing both defendant and the court to expend enormous energy, time and resources. He admitted that he never signed any of the documents that came before the court bearing his signature, including verifications and affirmations. While Dr. Abraham and his employees acted as conduits or procurers of legal matters for Mr. Weinberg, Weinberg{**2 Misc 3d at 742} abdicated his responsibility by relying solely on Dr. Abraham and by never confirming any of the “facts” or “clients.” He never once spoke with his “clients” to verify the claim or the very existence of either the clients or the claim.

This failure to adequately represent his “clients” is made clear by the evidence that Mr. Weinberg was unaware that his “client” Dr. Koven was deceased. While it is still questionable whether Dr. Koven ever retained Mr. Weinberg independently or through Dr. Abraham, the fact that Dr. Koven’s bankruptcy and subsequent death went undetected by Mr. Weinberg for a significant period of time indicates his dereliction of legal duty. Further, after the initial conference before this court when the truth about the deceased Dr. Koven was “discovered,” Mr. Weinberg nevertheless entered judgment on Dr. Koven’s behalf in another matter.

Had Mr. Weinberg or his employees taken the time to review the documents or interview the purported clients at the inception of the action or at any time during the next five years, the enormous effort of both defendant and the court would not have been expended. Instead, defendant was forced to locate and investigate the “plaintiffs” in this matter and through such labor discovered two plaintiffs had never heard of Mr. Weinberg and did not authorize him to represent them in this matter. None of the underlying documents supported any cause of action on behalf of Park Health and a simple review of the documents furnished would have eliminated that plaintiff without extensive discovery and motion practice undertaken by defendant.

When given the opportunity to come before this court to explain the apparent lack of merit and inconsistencies exposed by defendant, Mr. Weinberg flouted the authority of the court by failing to appear. Instead, Mr. Weinberg only appeared before the court once a contempt order was issued against him. (See Park Health Ctr. v Countrywide Ins. Co., Nov. 6, 2003, Siegal, J., Index No. 26244/97.) Upon appearing in court, Mr. Weinberg failed to present even a scintilla of evidence to prove his authority to act on behalf of the “plaintiffs.” Mr. Weinberg did not produce even one document in admissible form, nor introduce a single affidavit. Further, no attempt at all was made to prove any link between attorney Weinberg and client Dr. Choi. Significantly, the instant action was marked ready for trial. Five years is indeed ample opportunity for counsel to get it right.

As for Mr. Abraham, his conduct in covering up the bankruptcy and death of Dr. Koven is sanctionable. It is uncontroverted{**2 Misc 3d at 743} that Dr. Abraham knew of the double infirmity of Dr. Koven in 2000 when the bankruptcy trustee held depositions in search of assets. Nevertheless, Dr. Abraham continued to pursue claims on behalf of Dr. Koven, including the instant matter. Further, the evidence indicated that Dr. Abraham cashed checks made payable to Dr. Koven after the deposition. Dr. Abraham, likewise, was fully aware that Park Health Center had no interest in any of the claims and should not have been named as a plaintiff, since it was his employees that submitted the claims [*5]to defendant in this matter.

Accordingly, the court awards sanctions against Mr. Weinberg and Dr. Abraham each in the amount of $3,000, along with both equally paying defendant’s reasonable legal fees. Mr. Weinberg shall submit his $3,000 payment to the Lawyers’ Fund for Client Protection. Dr. Abraham shall deposit the same with the clerk of the court for transmittal to the Commissioner of Taxation and Finance. Both parties shall make such payments within 60 days from the date of entry of this order.

Footnotes

Footnote 1: The matter was initially severed and erroneously discontinued without prejudice. It was then severed with leave of the court for the trustee to represent the estate, and restored to the record pending substitution. By way of affidavit, the trustee in bankruptcy discontinued the action (see affidavit sworn to on Aug. 5, 2002).

Footnote 2: See order dated November 6, 2002, finding Amos Weinberg in contempt. However, the order deferred the court’s determination of punishment until November 15, 2002, at which time Mr. Weinberg testified and was ordered to pay $250.

Footnote 3: Mr. Weinberg testified that he regularly does not sign any of the papers submitted to court, including verifications, affirmations, judgments, etc. The court concluded in its decision dismissing the claims that an affirmation not signed by the affirmant is without force and effect. (Park Health Ctr. v Countrywide Ins. Co., June 30, 2003, Siegal, J., Index No. 26244/97.)

Civil Court Of The City Of New York, Queens County

Index No. 26244/97

BERNICE D. SIEGAL, J.

The defendant insurer brings the instant motion to for summary judgment dismissing the complaint in the within action to recover payments claimed due for medical services allegedly rendered under No-Fault upon several grounds, including, inter alia, that the complaint was improperly verified by a signature falsely purporting to be that of plaintiff’s attorney; failure to state a cause of action; frivolous obstruction with the discovery phase; and that the individual physicians named as party plaintiffs herein did not authorize counsel nor plaintiff Park Health Center ( hereinafter Park Health) to institute this action in their behalf.

Procedural History

The within action, naming Park Health, its principal Dr. Jamil Abraham, and Drs. Michael Schur, Myong Choi, Robert Stoessel, Robert R. Ceglio, Ira Casson and Leonard Koven as plaintiffs, was commenced on May 27, 1997 by summons and verified complaint comprised of 54 separate causes of action, to recover claimed unpaid No-fault benefits for services allegedly provided by the named plaintiffs for injuries sustained by five assignors and arising out of separate accidents. Issue was joined by defendant’s answer on June 30, 1997.

The matter was assigned to this court on June 14, 2002 when, at conference, defendant raised issues as to whether one of the named claimants, Dr. Leonard Koven was, in fact, deceased, and whether two of the other named claimants had authorized plaintiffs’ counsel to bring the action on their behalf.

Subsequently, on September 13, 2002, defendant moved to dismiss the complaint and for [*2]the imposition of sanctions against plaintiffs’ attorney, Amos Weinberg, and plaintiffs Park Health and Dr. Jamil Abraham pursuant to 22 NYCRR § 130-1.1. On that date, the parties stipulated that the branch of the motion to dismiss was withdrawn without prejudice to renewal upon completion of discovery, that depositions of Drs. Abraham, Casson, Schur and Choi would be held by November 26, 2002, that the claims of Drs. Abraham, Casson, Schur and Choi would be severed from the other claims and that the claims of Dr. Koven would be discontinued without prejudice. The court, also on said date, set the defendant’s motion for the imposition of sanctions down for a hearing on October 18, 2002.

On October 18, 2002, the court reinstated the claims of Dr. Koven, in view of the fact that the court had not had jurisdiction to discontinue his claims as this particular plaintiff had filed for bankruptcy and a substitution of the trustee in bankruptcy as a party plaintiff was required. On the hearing date, plaintiffs’ attorney, Amos Weinberg, failed to appear and, as per decision and order dated November 6, 2002 and for the reasons set forth therein, was found to be in civil contempt by the court. The sanctions hearing was continued to November 15, 2002, upon which date the court was to determine Mr. Weinberg’s punishment. As Amos Weinberg appeared and testified at the continued sanctions hearing on November 15th, the court found his contempt to be purged, although imposing a fine of $250 for his failure to appear at the October 18th hearing. At the hearing, the trustee in bankruptcy, Neil Ackerman, was substituted for Dr. Koven. Also, at the November 15th proceeding, plaintiff Park Health conceded that it did not specifically assert any cause of action in the within complaint. The hearing was continued to February 24 2003, at which time, defendant brought the instant motion and the court heard oral argument thereon.

The matter was then further adjourned to June 24, 2003 for continuation of the sanctions hearing and pending decision on the instant motion.

Findings of Fact and Conclusions of Law

As the court has noted above, plaintiff Park Health Center has conceded it has not asserted any cause of action in the within complaint and the causes of action pertaining to the claims of Drs. Koven, Ceglio and Stoessel have been severed from the within action. The court further notes that as per stipulation dated July 12, 2002, those causes of action asserted ( as set forth in the within complaint) by Dr. Ceglio have been discontinued with prejudice. Therefore, the instant motion is solely concerned with, and the court need only address, the causes of action allegedly asserted by plaintiffs Drs. Abraham, Casson, Schur and Choi.

Defendant is moving for dismissal of the remaining causes of action on several grounds, first among them being defendant’s assertion that plaintiffs’ attorney, Amos Weinberg, did not himself sign the verified complaint and other papers in the within action and that, therefore, the complaint must be deemed a nullity and dismissed.

With respect to this ground, the verification of a pleading must be signed by the [*3]attorney purportedly verifying it; not by a printed name or rubber stamp, but by the attorney’s own signature (see Security Pacific National Trust Company -v- Cuevas 176 Misc 2nd 846, 849; Sandymark Realty Corp. -v- Creswell 67 Misc 2nd 630). In the matter at bar, Amos Weinberg admitted at the November 15, 2002 sanctions hearing that he himself did not sign the verification, but rather one of his secretaries did. Undoubtedly, therefore, the verification was defective. Section 3022 of the CPLR provides that ” [a] defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so.” In this case, the court finds that defendant was made aware of the defective ( insofar as it was not, in fact, signed by the affiant attorney) verified complaint upon Weinberg’s testimony at the November 15th hearing. However, as there is no indication on the record that defendant elected to treat the complaint as a nullity until service of the instant notice of motion on January 24, 2003- approximately two months later, defendant has failed to show the required due diligence ( see Colon -v- Vacco 242 AD 2nd 973). Even assuming arguendo that defendant acted more expeditiously in rejecting the “verified” complaint, defendant has not shown any legal basis that the complaint in the within No-Fault action was required to be verified.

Accordingly, while Amos Weinberg’s conduct regarding his alleged signing of the verification and other papers herein cannot be excused and may well be sanctionable, that branch of the within motion for dismissal is denied.

However, the same is not true for failure to sign an affirmation holographically. An unsigned affirmation is of no force and effect ( American Security Insurance Company -v- Austin 110 AD 2nd 697). It follows that an affirmation not properly subscribed is a nullity ( Macri -v- St. Agnes Cemetary 44 Misc 2nd 702).The rule permitting affirmations by attorneys rather than sworn-to statements before a notary was promulgated in 1966 ” to simplify the attorney’s practice”( Id.). Attorney Weinberg has pushed this permissive rule too far in authorizing someone else to subscribe his affirmation. Therefore, any affirmation not holographically subscribed by him shall be deemed a nullity and not considered by the court.

Defendant is also moving for dismissal of those causes of action pertaining to plaintiffs Drs. Schur, Casson and Choi upon the ground that none of the aforementioned claimants authorized counsel ( Amos Weinberg) to commence this action on their behalf. With respect to this branch of the motion, where the authority of an attorney to appear on a party’s behalf has been questioned, the burden falls upon the attorney asserting his or her authority to prove same ( NRK Management Corp. -v- Donahue 109 Misc 2nd 601) and ” where an attorney’s authority has been questioned, [ it is important that] proof of that authority be given. Otherwise, a party may later demonstrate that the attorney who purported to represent him had no authority to do so …”( NRK Management, supra, at 603). Furthermore, it has been held that where a plaintiff has not authorized an attorney purportedly appearing for him to commence an action, the complaint is subject to dismissal ( Ulanoff -v- Croyden Shirt Co., Inc. 14 Misc 2nd 13, aff’d 12 AD 2nd 508, app den’d 9 NY 2nd 650). [*4]

In this regard, proof has been offered by defendant, in the form of Weinberg’s November 15th hearing testimony, evincing his lack of authorization to commence the within action on behalf of Drs. Choi, Schur and Casson. Weinberg testified that he had never met any of these plaintiffs, had never spoken to any of them, had never attempted to personally contact them, nor has his office ever tried to make contact in any manner with them. Also, he presented no documents in his files indicating he was so authorized by these plaintiffs to bring this action in their names. Furthermore, when asked if he ever had an agreement with any of these individuals with respect to his representing them, Weinberg responded that he assumed he was authorized to do so. Defendant, therefore, has made a prima facie showing of Amos Weinberg’s lack of authority. With the burden of proof now shifting to Amos Weinberg, no evidence has been presented in support of his authority to commence any claim herein on behalf of Dr. Choi. With respect to Dr. Casson and Dr. Schur, plaintiffs submitted, as evidentiary support, signed and notarized letters dated August 2, 2002 authorizing Weinberg to pursue collections of money on their behalf. Taken on face value, the authorizations permit Weinberg to pursue monetary collections on behalf of these doctors beginning August 2, 2002. However, the record remains void of any evidence that Weinberg was authorized to bring suit in the names of Drs. Casson and Schur when the action was commenced in May, 1997. Not only do these authorizations fail to establish permission to commence this action in May, 1997, they fail to prove that Amos Weinberg was even known to these plaintiffs in 1997. Such proof is insufficient to defeat this branch of defendant’s motion for summary judgment to dismiss. If such authorizations existed in May, 1997, it was imperative that Weinberg come forth with same, which he has failed to do.

Significantly, even if the court were to overlook the apparent lack of authorization in 1997, the documents purported to authorize both Dr. Abraham and Mr. Weinberg as collection agents for Drs. Casson and Schur are not properly before the Court. These statements were appended to two affirmations, dated August 20, 2002 and January 28, 2003, submitted by Attorney Weinberg, which due to his failure to properly subscribe the affirmations, are not being considered by this court.

Accordingly, the branch of the motion for summary judgment for dismissal of the causes of action herein pertaining to Drs. Choi, Casson and Schur on the ground of counsel’s lack of authority to institute the causes of action on behalf of these plaintiffs is granted; and the causes of action pertaining to plaintiffs Dr. Choi, Dr. Casson and Dr. Schur are dismissed.

With respect to the ten remaining causes of action asserted by plaintiff Dr. Abraham, defendant has moved for dismissal, pursuant to CPLR § 3126(3), upon the ground of the willful obstruction of discovery. Defendant specifically contends that Dr. Abraham had an employee of his, Lionel Bhadai, testify on his behalf at a March, 2000 deposition in which Bhadai testified under oath that Dr, Koven was at that time a medical provider at Park Health, despite the fact that Dr. Koven had filed for bankruptcy in April, 1997 and had died in November, 1998. As to this ground, a complaint may be dismissed where there is a ” clear showing that the failure to comply with discovery demands is willful, contumacious and in bad faith” ( Yona -v- Beth Israel Medical Center [*5]285 AD 2nd 460, 461; see also Brown -v- Michelin Tire Corp. 204 AD 2nd 255). Dr. Abraham admitted at the November 15th hearing that he became aware of Dr. Koven’s bankruptcy and subsequent death when served with the bankruptcy notice sometime in 1998. However, he attempts to excuse Bhadai’s clearly erroneous deposition testimony on the basis that Bhadai was merely negligent in assuming facts on matters of which he had no clear knowledge. Given that Dr. Abraham conceded at the November 15th hearing that while he selected Bhadai to testify at the deposition, he-Dr. Abraham- would have been the best person to testify. While the court finds that Bhadai himself may have only been negligent, plaintiff Dr. Abraham’s conduct in this regard, which had the effect of hiding from defendant the fact of a claimant’s death and, at the time the action was commenced- the filing of bankruptcy, was willful conduct, done in bad faith, attributable to plaintiff Dr. Abraham. Furthermore, a court’s striking of a pleading has been upheld where a party has “supplied false and fraudulent information”, as Dr. Abraham implicitly did with regard to Dr. Koven,s bankruptcy and subsequent death ( see Garnett -v- Hudson Rent A Car 258 AD 2nd 559). Additionally, in light of the above, Dr. Abraham, as the self-appointed collections agent for the other purported claimants herein, by his contumacious conduct infected the entire case brought before the court.

Accordingly, that branch of the motion for summary judgment to dismiss, upon the foregoing ground, the causes of action asserted by plaintiff Dr. Abraham, is granted and those causes of action are dismissed.

Date Judge, Civil Court

Decision Date: June 30, 2003