[*1]

Civil Court of the City of New York, Richmond County, March 5, 2010

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**29 Misc 3d at 187} OPINION OF THE COURT

Katherine A. Levine, J.

During oral argument, the parties stipulated that the only issue before the court was whether 11 NYCRR 65-3.6 (b) requires the insurer to notify the injured party when it sends the follow-up verification request to the plaintiff provider. This court has already determined and reiterates herein that the injured party need not be notified. (See Cambridge Med., P.C. v Nationwide Prop. & Cas. Ins. Co., Civ Ct, Richmond County, Feb. 22, 2010, index No. 4561/08.)

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 889-890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].) An insurer may toll the 30-day period by properly requesting additional verification within 15 days from the receipt of the no-fault insurance claim forms (NF-3 or claim form). (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004]; 11 NYCRR 65-3.5 [b].) If the

“requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b] [emphasis added]; see Pine Hollow Med., P.C. v Global Liberty Ins. Co. of N.Y., 25 Misc 3d 244 [Civ Ct, Richmond County 2009].)

If the insurer does not receive the verification request after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Westchester County Med.{**29 Misc 3d at 188} Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999].) The insurer must pay or deny the claim within 30 days after it receives verification of all relevant information it requested pursuant to its original request for additional information. (11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1]; Westchester County Med. Ctr., supra.)

The clear language of 11 NYCRR 65-3.6 (b) does not even mention the term “applicant” within the context of its requirement that the insurer follow up with the party from whom the verification was requested. Rather, the term “applicant” is only utilized within the context of the further obligation of the insurer to inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.

Plaintiff interprets the term “applicant” of 11 NYCRR 65-3.6 (b) to mean that the insurer must inform the assignor and the assignor’s attorney of the reasons why the claim is delayed at the same time the defendant requests a follow-up verification from the provider, since the defendant failed to notify the assignor and the assignor’s attorney, hence negating its motion for summary judgment. The defendant counters that upon the assignment of no-fault [*2]benefits, the medical provider steps into the shoes of its assignor and assumes all of his rights and obligations, thereby becoming the applicant within the meaning of 11 NYCRR 65-3.6 (b). Moreover, defendant argues that the plaintiff provider’s attorney’s letter directing the defendant to send all correspondence, including payment and verification requests to the provider’s attorney’s office or to “face unnecessary litigation,” placed the defendant on notice that the provider’s law firm was acting as the agent for the bills at issue.

In East Acupuncture, P.C. v Allstate Ins. Co. (61 AD3d 202 [2d Dept 2009]), the Second Department recognized that the no-fault regulations do not specifically define the term “applicant,” which generically refers to both the provider/assignee and injured persons in various no-fault sections. In Doshi Diagnostic Imaging Servs. v State Farm Ins. Co. (16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]), the Appellate Term interpreted the term “applicant” as used in 11 NYCRR 65-3.6 (b), to apply to an MRI facility which was the medical services provider/assignee. Accordingly, the plain meaning of 11 NYCRR 65-3.6 (b) refers to any entity, whether an injured person or a provider/assignee, who submits a claim or applies to an insurance{**29 Misc 3d at 189} company for no-fault benefits. (East Acupuncture, P.C., 61 AD3d at 210, citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

Furthermore, the objective behind the aforementioned law is the efficient and speedy processing of the no-fault claims. It therefore begs all reason to require an insurer to seek verification from a party who has divested his interest in no-fault benefits by assigning his rights to his provider. (Mia Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [assignment of no-fault benefits divests eligible injured persons of their interest in no-fault benefits and makes them nonparties to actions commenced by their assignees].) The letter mailed by the plaintiff provider’s attorney to the defendant, directing that all correspondence, including payment and verification requests, be mailed to the plaintiff provider’s attorney clearly placed the defendant on notice that the provider’s law firm was acting as the agent for receipt of all correspondence concerning the bills at issue. (See Lenox Hill Radiology & MIA P.C. v Global Liberty Ins., 20 Misc 3d 434 [Civ Ct, NY County 2008].)

The court therefore deems the provider to be the applicant in the instant matter. Since the plaintiff did not provide the verification sought by the defendant, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run and the instant case is premature. (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999].)

Accordingly, the defendant’s motion is granted.

[*1]

Civil Court of the City of New York, Richmond County, February 5, 2010

APPEARANCES OF COUNSEL

Law Office of Robert P. Tusa, Brooklyn, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**27 Misc 3d at 699} OPINION OF THE COURT

Katherine A. Levine, J.

The novel issue presented is what type of proof a defendant insurance company must present at trial in order to prevail on its defense that the injury billed for by a plaintiff medical service provider was not medically ascertainable within a year. Both parties concede that in order for this defense to be even raised, the insurance company must issue a timely denial.

This action was commenced by plaintiff AP Orthopedics & Rehabilitation, P.C. (AP Orthopedics) to obtain payment from defendant Allstate Ins. Co. (defendant or Allstate) for medical services it provided to its assignor Nelson Hernandez (assignor) in the form of arthroscopic surgery of the shoulder on October 11, 2006. Allstate received the bill on June 14, 2007 and timely denied it within 30 days on the grounds that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Defendant presented the testimony of its claims examiner Nicholas D’Ermilo (claims examiner or D’Ermilo) to prove its defense. D’Ermilo testified that he had been employed by [*2]Allstate for over 27 years in its no-fault department and was a unit supervisor in no-fault in 1999 when Allstate first received claims from the assignor. He testified, that within one year of the accident, which occurred on February 14, 1999, Allstate received a number of bills from various medical providers other than plaintiff regarding the assignor and denied many bills (defendant’s exhibits A, D). He testified that defendant also received claims in 1999 from Flatbush Diagnostic for physical therapy on, and treatment of the assignor’s ankle, which it timely paid. Defendant also paid claims in 1999 from Alpha Chiro for chiropractic treatment it provided to the assignor’s cervical and lumbar spine.

On June 14, 2007, defendant received a bill for arthroscopic surgery of the assignor’s shoulder which was performed on October 11, 2006. D’Ermilo’s review of the file revealed that, between 2000 through June 2007, Allstate did not receive any further bills from physicians or providers pertaining to the assignor.{**27 Misc 3d at 700} His review of the file also revealed that the assignor’s shoulder had never been treated within one year of the accident, that no X rays or MRIs or CAT scans were taken of the shoulder, and there had been no chiropractic care of the shoulder. Nor was there any indication that the assignor would require future treatment of the shoulder.

On cross-examination, the claims examiner admitted that his testimony was based upon his review of the electronic files and that Allstate had closed the physical file on the assignor back in December 1999. His testimony was based solely upon the denials that Allstate had issued and which had been stored in Allstate’s computer system; Allstate no longer had access to the assignor’s application for benefits (NF-2) back in 1999. He did not know whether any chiropractic or physical therapy notes had been submitted to Allstate back in 1999 or what the chiropractor’s diagnosis had been.

At the close of the defendant’s case, plaintiff argued that defendant had the burden of proving, by the preponderance of the evidence, that the 2007 claim for arthroscopic surgery was not related to the accident. Plaintiff contended that it was impossible for defendant to meet this burden as the claims examiner was not a doctor, and that pursuant to Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [2d Dept 1999]), the issue of lack of causation could only be established through the testimony of an expert witness. Defendant countered that since there was no dispute that between 2000 and 2007 the assignor had not presented any bills for treatment, and that the 1999 to 2000 bills were solely for the cervical/lumbar spine and the ankle, defendant had met the burden of proving that the injury to the assignor’s shoulder was not ascertainable within one year of the accident.

Insurance Law § 5102 (a) (1) provides, in pertinent part, that an insurer must pay all necessary medical expenses of its insured without limitation as to time “provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” (Emphasis added.) The implementing regulations (11 NYCRR 65-1.1 [d] [Sec I, Medical Expense]) further provide that “medical expenses will not be subject to a time limitation, provided that, within one year after the date of the accident, it is ascertainable that further medical expenses may be [*3]sustained as a result of the injury.”

The scant case law interpreting this provision has held that “an injury is not ascertainable if no evidence of it is submitted{**27 Misc 3d at 701} to the insurer within a year of the accident.” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [3d Dept 1996].) For example, if an insured submitted expenses for a cervical injury and then three years later submitted expenses for a knee injury, the latter would not be ascertainable within the meaning of section 5102. On the other hand, if the subsequent treatment was for cervical injury, “that injury would be ascertainable since expenses for treatment for that injury had been submitted to the insurer within the one-year period.” (229 AD3d at 873.)

In Hospital for Joint Diseases v Allstate Ins. Co. (21 AD3d 348 [2d Dept 2005]), the Appellate Division, Second Department, further spelled out how this defense could be raised, albeit through a motion for summary judgment. After a plaintiff made out a prima facie case, the defendant had to raise a triable issue of fact as to whether the medical expenses submitted beyond a year after the accident “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident.” (Id. at 349, quoting Stanavich at 873; see 11 NYCRR former 65.15 [new regulation § 65-1.1].) The court also held that the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver. (Id., citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; see also Matter of Fields [Allstate], AAA case No. 4120070557, Mar. 20, 2008 [failure to submit any evidence which indicated that the applicant would in fact require further treatment after a gap of almost five years]; Ops Gen Counsel NY Ins Dept No. 08-04-16 [Apr. 2008]; see also Barki v Employers Mut. Liab. Ins. Co. of Wis., 87 Misc 2d 912, 913 [Kingston City Ct 1976] [burden is upon plaintiff to prove the fact of “ascertainability” within one year of the accident].)

Thus, according to Stanavich and its progeny, it would appear that as long as the insurance company can prove that it received no claims for a shoulder injury within one year of the accident, it would prevail on its defense that a claim submitted for a shoulder injury some seven years after the accident was not ascertainable within one year of the accident. However, plaintiff contends that only a medical expert can establish that a claim for a new type of injury was not ascertainable, from the medical claims previously supplied, within a year of the date of the injury. Plaintiff is, in essence, contending that it is entitled to a presumption of medical necessity, regardless of the time frame in which it submits a claim, and that defendant can only rebut{**27 Misc 3d at 702} this presumption by establishing a lack of medical necessity through an expert.^[FN*] [*4]

Under the No-Fault Law, individuals are entitled to be compensated for “basic economic loss” resulting from injuries caused by the operation of a motor vehicle. (Insurance Law § 5101 et seq.) “Basic economic loss” is defined to include “[a]ll necessary expenses” incurred for medical services “all without limitation as to time, provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury.” (Insurance Law § 5102 [a] [1]; 11 NYCRR 65-1.1; see Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 438 [Civ Ct, NY County 2005].)

A presumption of medical necessity attaches to a timely submitted no-fault claim. (All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists 2006].) The burden then shifts to the defendant to rebut the presumption of medical necessity. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept 2004]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]; A Plus Med., P.C. v Government Empls. Ins. Co., 21 Misc 3d 799 [Civ Ct, Kings County 2008].)

However, the term “provided that” constitutes a proviso to this section of the No-Fault Law. According to the general rules for statutory construction, the words “provided, however,” are deemed to denote the expression of a limitation or exception. (Matter of Livingston, 14 AD2d 264, 265 [1st Dept 1961].) “It is the province of a proviso to restrain the enacting clause, to take something back from the power first declared, to except something which would otherwise have been within it, or in some measure to modify the enacting clause.” (Id., quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 212.) Thus, a proviso is ” ‘a condition, qualification, or limitation,’ a clause ‘to modify the operation of that part of the statute.’ ” (Ferrer v{**27 Misc 3d at 703} State of New York, 136 Misc 2d 218, 221 [Ct Cl 1987], quoting Webster’s Third New International Dictionary 1827 [unabridged 1993 ed]; Statutes § 212; see County of Erie v City of Buffalo, 4 NY2d 96, 103-104 [1958].)

The term “provided that within one year after the date of the accident . . . it is ascertainable that further expenses may be incurred as a result of the injury” thus serves as an exception or limitation to the presumption of medical necessity that generally attaches to claims that are submitted within one year of the accident. In other words, as long as the insurer can establish that it timely denied the claim and that no claims were presented to it within one year of the accident that were for injuries that were subsequently submitted outside of the one-year period, the insurer will prevail.

This construction comports both with explicit language of the proviso and with the legislative purpose behind the enactment of the No-Fault Law. The governing rule of statutory construction is that when the statutory “language is clear and unambiguous, it should be [*5]construed so as to give effect to the plain meaning of [the] words” used. (People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989], citing Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675 [1988].) Furthermore, it is a general rule of construction that “omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction.” (Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 517 [1st Dept 1980]; Statutes §§ 75, 363.) Thus, a court cannot insert words into a statute that are not there and cannot read into a statute a provision which the Legislature did not see fit to enact. (People v Harris Corp., 123 Misc 2d 989, 995 [Clinton County Ct 1984].)

The proviso requires that within one year of the accident, it is ascertainable that further expenses may be incurred. Ascertainable has a clear and unambiguous meaning: “to find out or learn with certainty,” to discover. (Webster’s New Collegiate Dictionary.) The clause does not require that it be medically ascertainable that further expenses be incurred. Thus, if within a year it is not clear with certainty or discoverable that further expenses may be incurred, the insurer is under no obligation to pay for services rendered way after a year has expired. This determination can be made by a claims examiner who reviews records submitted or denials made on claims within the first year of the accident.

Moreover, this interpretation comports with the goal behind the No-Fault Law—to promote the “prompt payment of legitimate{**27 Misc 3d at 704} claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), and the prompt resolution of injury claims. (Pommells v Perez, 4 NY3d 566 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997] [“(t)he tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices”]; All Health Med. Care v Government Empls. Ins. Co., 2 Misc 3d 907, 910 [Civ Ct, Queens County 2004].) The regulations require insurers to act quickly in evaluating insureds’ claims and to avoid prejudicial delays. (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723, 725 [Civ Ct, Queens County 2004].) Accordingly, it is the court’s duty to interpret and apply the no-fault regulations in a consistent manner leading to the prompt payment of valid, documented claims. (Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 766, 774 [Civ Ct, NY County 2007].)

To hold otherwise, and require an insurance company to present a medical expert to validate a claims examiner’s testimony that the assignor failed to file any claims relating to the shoulder within a year of the accident, would run contra to the intent of the legislation and stymie the insurer’s expeditious processing of claims. It would force insurers to dwell on every claim they received to ascertain what claims for possible new injuries might be sent by the assignor more than a year after the assignor submitted his initial claims. The insurers would be foreclosed from closing any cases for fear that they might need a medical expert, some seven years after the accident, to pour over notes from doctors that were submitted within the initial year of the accident to opine as to whether the claim for new injuries was ascertainable within one year of the accident. [*6]

In light of the above, defendant has proved its defense. Since plaintiff offered no evidence to rebut defendant’s proof that the injury for the shoulder was not readily ascertainable within one year of the accident, judgment is rendered for defendant and the case is dismissed.

Footnotes

Footnote *: Plaintiff’s reliance on Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]) is misplaced since Mount Sinai did not involve a determination as to whether a claim for a new injury, presented more than a year after the accident, was ascertainable, from the records presented, within a year. Rather, it involved the purely medical determination as to whether an injury was entirely preexisting (i.e., not covered under the insurance agreement) or was in whole or part caused by an insured accident, which would require a review of medical facts. (263 AD2d at 18.)

Civil Court of the City of New York, Richmond County

19752/07

Defendant:

Law Offices of Teresa M. Spina

GEICO Insurance Co.

170 Froehlich Farm Blvd

Woodbury NY 11797

(516) 496-5822

Plaintiff:

Joseph Sporacio, P.C., Attorney for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

(718) 966-0055

Katherine A. Levine, J.

The primary issue presented at trial was whether plaintiff Healthcare Associates in Medicine (“plaintiff” or “Health Care”) violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations – 11 NYCRR 65 – 1.1 – by failing to submit its proof of claim for services to defendant Geico Insurance (“defendant” or “Geico”) within 45 days from the date services were rendered. Since the two aforementioned cases presented the same issue, they were consolidated for trial. [*2]

Defendant moved for a directed verdict after plaintiff presented the testimony of Ms. Sparta, its collection account representative. Defendant contended that Sparta failed to establish that either of the assignor’s bills were sent within 45 days since she admitted on cross that she did not know whether or when the bills were actually sent out. She did not generate the bill and did not see the representative responsible for billing GEICO either generate the bills or mail them or give them to the postal clerk. Rather, it is her responsibility to supervise the assigned representatives, including “Mary Ann” who was responsible for GEICO billing. Mary Ann was supposed to take the information from the patient and generate a bill after the patient was seen and send out the bill was supposed to generate a visit for the day, attach it to the bill and send it out. She “hopes and assumes” that Maryann took the bill and put it into the mail room.

Due to the computer program utilized by plaintiff, she cannot print out a hard copy of the bill for the first date of service of a particular assignor since each time a new bill is generated the computer overrides the original bill that was created. Therefore the dates on the claim forms submitted by plaintiff (plaintiff’s “1” and “3”) are not the dates for the first bills that were generated for the assignors but rather the dates for the last bills that were generated. There is no proof of mailing for the bills containing the original dates of service and nothing on the bills that would show that they were mailed. However, the computer also prints out a claims history report ( plaintiff’s “2” and “4”) which chronologically lists from the bottom upwards the dates that the bills were generated. Sparta claims that based upon the claims history forms, the bill for the first date of service on Varallo- April 7, 2006 – was generated on April 12, 2006 and that the girls should have mailed the bill out that day. With respect to assignor Galanti, the bill for the first date of service on May 16, 2006 was generated was May 17, 2006.

Due to the alleged deficiency in Sparta’s testimony as well as deficiencies in the documentary evidence, GEICO contends that it is not necessary for it to present its own witness to establish its receipt of the bills or its generation of timely denials. Despite this contention, Geico asserts in its brief that it received the bill for the date of service of April 7, 2006 (Varallo) on June 26, 2006 and timely denied the bill on June June 29, 2006. Geico also asserts that it received the bill for the date of service of May 16, 2006 (Galanti) on July 7, 2006 and timely denied it on July 20, 2006. However, these are merely assertions; Geico did not place its denials in evidence.

Curiously, Geico does not dispute that plaintiff’s witness “adequately testified that she had personal knowledge of the mailing procedures sufficient to raise a presumption that the bill(s) were mailed to Defendant.” Therefore defendant does not dispute that but for the 45 day issue, plaintiff would have proven its prima facie case. Rather defendant challenges plaintiff’s ability, on its prima facie case, to submit both testimony and evidentiary documentation to establish that the bills were mailed within the mandatory statutory time period of 45 days. In essence Geico contends that it would be redundant and a waste of time for it to have to place its claims examiner on the stand to establish that the bill was mailed and received beyond the 45 [*3]days since plaintiff would not be able, based upon Sparta’s testimony in plaintiff’s case, to rebut its testimony and documentary evidence.

Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002, are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days (11 N.Y.C.R.R. 65.12 [e] (“old regulations)) to 45 days (11 N.Y.C.R.R. § 65-1.1 [b] (“new regulations.”)). See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130(A), 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). Where one proof of claim is submitted for several medical treatments, the 45 day period commences the day after the first treatment is rendered. SZ Medical P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term., 2nd & 11th Jud. Dists. 2006), citing Informal Opinion, New York State Insurance Department, June 30, 2003.

Insurance Law § 3425 (a) (8) sets forth that the policy period for newly issued and renewed automobile insurance policies is one year. See also Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 (2001). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003. S & M Supply v State Farm Mut. Auto. Ins. Co., supra . When an automobile policy is issued after that date, the defendant insurer need not prove that the policy at issued contained such an endorsement, “(s)ince an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [a][8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]”. Eagle Chiropractic, supra . See also, Lenox Hill Radiology and MIA, P.C. v. Regina Alsis, 2009 NY Slip Op. 51966U, 2009 NY Misc. LEXIS 2471 (Civil Ct., Bronx Co. 2009).

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider’s untimely submission of claim if it does not issue a timely denial of claim. Rockman v. Clarendon Nat. Ins. Co., supra , citing Mid Atlantic Medical P.C. v. Travelers Indemnity Co., 12 Misc 3d 147(A), 824 NYS2d 769 (App. Term, 1st Dept. 2006). Pursuant to both the Insurance

Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. Presbyterian Hosp. v. Md. Cas. Co., 90 NY2d 274, 278 (1997), citing Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). See, Bayside Rehab & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542 (Civil Ct., Richmond CO. 2009). [*4]

Thus, in Montefiore Med. Ctr. v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354 ( 2d Dept. 2004), the court found that despite the fact that the medical service provider had submitted a proof of claim that was incomplete and untimely, the plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period NYCRR 651.1(d) ( new regulation). St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 (2d Dept. 1994).However, since the defendant offered sufficient evidence to raise a triable issue of fact whether as to whether the plaintiff’s claim was denied as untimely, summary judgment should not have been granted to the plaintiff. See also, Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op 52143U, 17 Misc 3d 1125A (Civil Ct., Kings Co. 2007) (parties stipulated at outset of trial that plaintiff’s bills were submitted beyond 45 days after services were rendered, the defendant submitted a timely denial, and the plaintiff’s prima facie case was established).

GEICO submits that it need not present a witness to establish that it timely denied the bills because plaintiff failed, in its prima facie case, to establish that it mailed the bills within the statutory 45 day period and failed to present any testimony as whether it had a reasonable justification for the delay in mailing the bills. However, since GEICO concedes that plaintiff made out its prima facie case of generating and then mailing a bill, GEICO cannot then attack the validity of the very bills it concedes were properly mailed and generated by arguing that they do not contain proof that they were mailed within 45 days. The fact that a plaintiff’s bill may ultimately be deemed to be untimely does not create an obligation upon the plaintiff, in the first instance, to prove timeliness as part of its prima facie. Rather, precedent requires that an insurance company establish the untimeliness of the bills by putting in its timely denials which contain the dates that the bills were received. GEICO may be able to prevail if the documents it puts into evidence substantiate its assertions, in its brief, that it received both claims beyond the 45 day manage.

As such, defendant’s motion for judgment as a matter of law and for the dismissal of the case is denied. The parties shall contact the court within 20 days of receipt of this decision to set a trial date if they cannot resolve these two cases based upon the afore stated decision. A trial shall be held to give GEICO an opportunity to present its defense.

The foregoing constitutes the Decision and Order of the Court.

Dated: January 6, 2010______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________ [*5]

A P P E A R A N C E S

Civil Court of the City of New York, Richmond County

13134/07

Counsel for Plaintiff:

Joseph Sparacio

2555 Richmond Avenue

Staten Island, New York 10314

(718) 966-0055

Counsel for Defendant:

Diamond, Rutman, Costello & Si

291 Broadway, Suite 1100

New York, New York 10007

(212) 267-4731

Katherine A. Levine, J.

This case calls upon the court to again examine whether an expert witness called by a defendant insurance company may rely upon medical records, prepared by an entity other than the plaintiff medical service provider, to formulate an opinion as to the medical necessity of services provided by the plaintiff.

Plaintiff Popular Imaging, P.C., (“plaintiff” or “Popular Imaging”), a medical service provider, seeks to recover r payments from defendant State Farm Insurance Co. (“defendant” or “State Farm”) for an MRI of the lumbar spine that it provided to the assignor Belquis Perez (“assignor” or “Perez”) as a result of the injuries that she sustained in an automobile accident. Defendant claims that the services were medically unnecessary. At the trial, the parties stipulated to plaintiff’s prima facie case and to defendant’s timely denial of the claim. Therefore, the only issue before the court was whether the medical services provided was medically necessary. [*2]

Dr .James B. Sarno (“Dr. Sarno”), who is a board certified neurosurgeon, prepared a peer review report and testified that the MRI performed on the assignor’s lumbar spine was medically unnecessary. At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.

Dr. Sarno’s testimony referred, for the most part, to the records and reports of Dr. Noel Fleisher, a board certified neurologist, who was the assignor’s treating physician and who referred the assignor to the plaintiff for an MRI. On August 23, 2002, Dr. Fleisher issued a report as to the results of his neurological consultation with the assignor some two weeks after the accident. He set forth as his impressions post concussion syndrome, traumatic cervical radiculopathy, traumatic lumbar radiculopathy, and myofacial pain syndrome. He indicated that he would consider a MRI scan and/or EMG studies. He listed the prognosis as guarded. Dr. Sarno also listed on his peer review the March 7, 2003 letter from plaintiff to Dr. Fleisher explaining the results of the MRI of the lumbar spine.The peer review report also lists a number of other reports, letters or diagnosis from other entities that were independent of both Dr. Fleisher and plaintiff (“independent reports’) such as New York Neurology, P.C.; Central Park Physical Medicine and Rehabilitation, etc.

It is well settled that when records are prepared by a plaintiff medical service provider’s own principal, who treated the claimant and conducted the tests in questions, a plaintiff cannot viably argue that a defendant’s expert opinion “was not derived from a professional reliable source or to otherwise challenge the reliability of its own medical records and reports which were used as proof of its claim”. Andrew Carothers, M.D. (Martinez) v. GEICO, 2008 NY Slip Op 50456U, 18 Misc 3d 1147A (Civil Ct., Kings Co. 2008);. See, Cross Continental Medical v. Allstate, 13 Misc 3d 10 (App. Term 1st Dept. 2006).

In Velen Medical Supply Inc. V. Travelers Ins. Co., 20 Misc 3d 781 (Civil Ct., Queens Co. 2008), the court extended this ruling to permit testimony by a defendant’s expert based upon medical records and reports prepared by entities other than the plaintiff. The court first found that the records at issue fell within the fourth category of admissible opinion evidence set forth in the leading case of Wagman v. Bradshaw. 292 AD2d 84, 86-87 ( 2d Dept. 2002) : “material not in evidence provided the out- of-court material is accompanied by evidence establishing its reliability.” The court then cited to Hambsch v. N.Y.C. Transit Auth., 63 NY2d 723, 726 (1884) where the Court of Appeals held that an expert “may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion’ or if it comes from a witness subject to full cross examination.'”.

As to the Wagman issue, the Velen court found that in the context of no-fault, a plaintiff could not challenge the reliability of the assignors’ medical records and reports, even if those [*3]reports were not prepared by the plaintiff, if they were provided by plaintiff in response to defendant’s verification requests and were affirmatively relied upon by plaintiff as proof of claim. 20 Misc 3d at 784.See, Home Care Ortho. Med. Supply Inc., v. American MFRS. Mut. Ins. Co., 2007 NY Slip Op 50302[U] , 14 Misc 3d 139A (App. Term,1st Dept. 2007). Subsequently, Judge Sweeney extended this reasoning to the situation where the plaintiff’s assignor, rather than the plaintiff, provided the medical records to the defendant in response to a verification request. See, Primary Psychiatric Health, P.C., v. State Farm Mutual, 2007 NY Slip Op 50583U, 15 Misc 3d 1111A (Civil Ct., Kings Co. 2007). In fact, the Appellate Term has recently ruled that a defendant’s expert may not be precluded from testifying even though his opinion was based upon medical records prepared by physicians other than the plaintiff relating to treatment provided to the assignor. Bronx Expert Radiology v. NY Central Mutual, 2009 NY Slip Op 514575U, 2009 NY Misc. LEXIS 1796 ( App. Term, 1st Dept. 2009).

Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor^[FN1] and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment. Hazel Bruce Bishop v. Jafar, 302 AD2d 345 (2d Dept. 2003). Furthermore, an expert is entitled to rely upon facts set forth in medical records so long as he did not base his opinions upon the conclusions contained in the records. Meagan Murray v. Weisenfeld 37 AD3d 432, 434 (2d Dept. 2007); Bruce Bishop v. Jafar, supra. [*4]

Dr. Sarno then testified that it is generally accepted medical procedure to send a patient for a lumbar MRI where there is actual evidence of radiculopathy, irregularities in the neurological exam or failure to respond to conservative treatment. None of these factors were present in the documents reviewed by Dr. Sarno so as to justify the medical necessity of the lumbar MRI. On cross examination. Dr. Sarno reiterated that there were no actual neurological findings in the lower extremities to support a finding of radiculopathy He also testified that no EMG/NCV studies were even performed in the lumbar area of the body. Plaintiff presented no evidence or testimony in this matter, choosing instead to rely upon the aforementioned argument concerning the ability of Dr. Sarno to render an opinion and its cross examination of Dr. Sarno. Plaintiff has failed to refute the expert testimony and opinion and failed to produce evidence to rebut the lack of medical necessity for the lumbar MRI. As such, judgment is rendered in favor of defendant

.

Dated: November 5, 2009

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

Footnotes

Footnote 1:(Since Dr. Sarno relied for the most part upon Dr. Fleisher’s records, it is not necessary for this court to render an opinion about the admissibility of the panoply of reports from other doctors that were reviewed by Dr. Sarno and which accompanied his peer review report. However, it appears that these reports were provided to Sarno by DND – a third party- who apparently received all the records from plaintiff as a result of defendant’s verification request (defendant’s 2). As such, in accordance with the aforementioned precedent, Dr. Sarno could also properly rely upon these records in formulating an opinion.

Civ Ct, Richmond County

Index No.: 21379/07

Counsel for Defendant:

Gina M. DiGaudio, Esq.

GULLO & ASSOCIATES, LLP

520 86TH Street

Brooklyn, New York 11209

718-238-9555

Counsel for Plaintiff:

Joaquin J. Lopez, Esq.

BAKER, SANDERS, BARSHAY, GROSSMAN, FASS, MUHLSTOCK & NEUWIRTH

150 Herricks Road

Mineola, NY 11501

516-741-4799

Katherine A. Levine, J.

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

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Plaintiff Administrative Assets (“plaintiff” or “Assets”), a medical service provider, commenced this action, pursuant to the No-Fault Law, to recover payments from defendant Zurich American Transit Insurance Company (“defendant” or “Zurich”) for services plaintiff rendered to its assignor Frank Saccente (“assignor” or “Saccente”) as a result of the injuries that he sustained in an automobile accident.

Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because the assignor was an employee who was injured on the job while working, thus granting the Workers Compensation Board (“Board”) primary jurisdiction over issues of coverage. In support of its motion, defendant presented the affidavit of its no fault specialist – Mr. Herbert – who, in a conclusory fashion, described how defendant ” obtained documents from the Workers’ Compensation Board which revealed that the assignor was injured in the course of employment.” Specifically, attached to his affidavit is an “Employer’s Report of Work-Related

Accident”(“Employer’s Report”) filled out by a third party – the assignor’s employer.

Plaintiff asserts that a no-fault insurer asserting a defense that workers compensation is primary must establish, as a threshold matter, that the claimant was employed at the time of the underlying motor vehicle accident. Plaintiff asserts that defendant failed to submit any admissible evidence on this point that the claims specialist’s affidavit is insufficient to lay a foundation to admit a hearsay document (the Employer’s Report) into evidence. Specifically, under Dan Medical P.C. v. NY Central Mutual Fire, Ins.,14 Misc 3d 44 (App. Term, 2d Dept. 2006), the claims specialist failed to demonstrate that he possessed sufficient personal knowledge of defendant’s business offices practices and procedures so as to lay the foundation for the [*2]admission of the assignor’s Employer’s Report.

The Court finds that the Employer’s Report is inadmissable, since defendant has failed to lay a foundation establishing that this Report, which was prepared by a third party – the assignor’s employer – is a business record of defendant. As such, the information contained in the report is inadmissable hearsay.

In the leading case of People v. Kennedy, 68 NY2d 569 (1986), the Court addressed several issues relating to the hearsay exception to business records contained in CPLR 4518(a). This provision provides that “[t]he term business includes a business, profession, occupation and calling of every kind.” The business records exception “grew out of considerations of necessity and trustworthiness – the necessity for alternatives to permit large and small business to prove debts by their records of account, and the unusual degree of trustworthiness and reliability of such records owing to the fact that they were kept regularly, systematically, routinely and contemporaneously.” Id at 579 citing 5 Wigmore, Evidence, §§ 1421-22, 1546. “The essence of the business records exception …is that records systematically made for the conduct of a business …are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise.” 68 NY2d at 579.

The foundation requirements of CPLR 4518, which incorporate these common law precepts,

mandate that the proponent establish that the writing was made in the regular course of business, i.e. that the writing reflects a routine, regularly conducted business activity; that it was the regular course of business to make the writing; and that the writing was made at or about the time of the transaction; and that the writing was made at or about the time of the transaction.” Id at 580. See, Lenox Hill Radiology P.C. (Sardar) v. American Transit Ins CO., 2008 NY Slip Op. 50330U, 18 Misc 3d 1136A (Civil Ct., NY Co. 2008). In Aram Barbikian v. Nikki Midtown LLC, 60 AD3d 470, 471-72 (1st Dept. 2009), for example, the court held that the bookkeeper’s affidavit did not lay the foundation

necessary for the admissibility of purported employment records and a computer printout submitted to show where the employees were on the date of the attack. The bookkeeper did not state that she was in charge of employment or employment records or otherwise have firsthand knowledge of the plaintiff.

Similarly, here, the affidavit of John Herbert does not specify defendant’s regular business procedures for obtaining information regarding an assignor’s employment status vis a vis workers compensation, and defendant clearly does not have personal knowledge much less any knowledge as to how the third party – the assignor’s employer – filled out the Employer’s [*3]Report or submitted it to the Workers Compensation Board. The affidavit is silent as to whether either it was either defendant’s or the third party employer’s business duty to record the act, transaction or occurrence sought to be admitted.

As such, the third party report may not be considered in this summary judgment motion and the defendant therefore cannot show, in its papers that there is potential merit’ to its claim that [the assignor] was employed at the time of the accident so as to trigger a determination by the Workers’ Compensation Board. Lenox Hill Radiology, supra citing A.B. Medical Serv. PLLC v. American Transit Ins. Co., 8 Misc 3d 127A, 801 NYS2d 776 (App. Term, 2d Dept. 2005 ). In light of the inadmissibility of this record, this court finds that defendant has not submitted sufficient evidence that the assignor was employed at the time of the accident, that workers compensation is primary, and that the issue of coverage must first be presented to the Workers Compensation Board. See, Arvatz v.v. Empire Mut. Ins. Co., 171 AD2d 262, 268 (1st Dept. 1991); Lenox Hill Radiology, supra .

As defendant’s motion for summary judgment is denied, this case shall proceed to trial.

The foregoing constitutes the decision and order of the court.

Dated:October 1, 2009

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

ASN by _______ on ____________

A P P E A R A N C E S

Counsel for Defendant:

Gina M. DiGaudio, Esq.

GULLO & ASSOCIATES, LLP

520 86TH Street

Brooklyn, New York 11209

718-238-9555

Counsel for Plaintiff:

Joaquin J. Lopez, Esq.

BAKER, SANDERS, BARSHAY, GROSSMAN, FASS, MUHLSTOCK & NEUWIRTH

150 Herricks Road

Mineola, NY 11501

516-741-4799

Civil Court of the City of New York, Richmond County

08R000954

Katherine A. Levine, J.

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Defendant’s motion for summary judgment raises anew whether the recent Court of Appeals decision in Fair Price Medical Supply Corp. V. Travelers Indemnity Co., 10 NY3d 556 (2008) requires an insurer to deny a claim on the grounds that the assignor was involved in an accident while on the job and that workers compensation is hence primary within 30 days, or whether that defense is not subject to the preclusion rule.

Plaintiff Lenox Hill Radiology and MIA, P.C. A/A/O (“Lenox Radiology”

or “plaintiff”), a medical service provider, brought this action seeking reimbursement in the amount of $878.67 for medical services it provided to its assignor Zulfiqar Ahmad (“assignor or “Ahmad”) stemming from a motor vehicle accident that occurred on September 19, 2007. Plaintiff timely submitted its bill to defendant Global Liberty Insurance Co. (“defendant” or “Global”) which is a “licensed insurance carrier for vehicles for hire” (affidavit of Dwight Geddes -“Geddes affidavit” ). Global received the claim on November 2, 2007, and denied and mailed the claim on November 28, 2007 on the grounds of lack of medical necessity based upon a performed peer review report. ^[FN1] The denial did not list as a grounds lack of coverage based upon workers compensation being primary. [*2]

Defendant moved for summary of judgment on the grounds that there is no coverage since it “has reason to believe” that the assignor was in the course of his employment at the time of the accident and that therefore, workers compensation is primary and the assignor is not entitled to no -fault benefits. It further contends that the Workers Compensation Board (“Board”) is vested with the responsibility of resolving questions of fact or mixed questions of law and fact and that the Board hence has”primary and exclusive jurisdiction” to resolve questions of coverage. Thus, a no -fault insurer is only obligated to pay no-fault benefits if the workers compensation carrier denies liability for benefits. From these propositions, defendant argues that “there is no coverage” from an insurance company for no – fault benefits until the Board makes a determination that there is no workers compensation coverage and that hence, defendant’s time in which to issue a denial does not even commence until the Board makes its determination.

Plaintiff cross moved for summary judgment on the ground that the defense that a “claimant is eligible for workers compensation” is not a coverage defense but rather a “statutory offset” which must be contained in a timely denial. Plaintiff contends that there are only four “coverage defenses” that are not subject to preclusion even if not raised in a timely denial and that the instant defense is not included in this group. Since defendant did not preserve this defense by issuing a timely denial, plaintiff contends it is entitled to partial summary judgment.

In response, defendant contends that if in fact the Board were to determine that the assignor was not working at the time of the accident but rather was using the vehicle for personal reasons, this would be in violation of his policy of insurance or “contract” with Global and would constitute a “material misrepresentation” by the insured so as to warrant a forfeiture of his rights under the policy. Defendant further contends that “misrepresentation by an insured and a material breach of the contract of insurance result in the vitiation of coverage.”

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented” Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). A plaintiff establishes a prima facie entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing form has been mailed and received, and that payment of no -fault benefits was overdue.” Mary Immaculate Hosp. v. Allstate Ins.,, 5 AD3d 742, 743 (2d Dept. 2004); Second Medical v. Auto

One Ins., 20 Misc 3d 291, 293 (Civil Ct., Kings Co. 2008).

The burden then shifts to the defendant in a no fault case to show a triable issue of fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To defeat an award of summary judgment to plaintiff, defendant must provide proof, in evidentiary form, that it either paid or denied the claim within 30 days of receipt or that it asserts a non- precludable defense. Carle Place Chiropractic v. NY Central Mutual Fire Ins. Co., 2008 NY Slip Op 51065U; 19 Misc 3d 1139A (Dist. Ct. Nass. Co. 2008). District supra at 8. See Central General Hospital v. Chubb Insurance Co, 90 NY2d 195 (1997); Presbyterian Hosp. City of NY v. Maryland Casualty Co., 90 NY2d 274 (1997). [*3]

In Fair Price Medical v. Travelers Ins., 10 NY3d 556 (2008), the Court of Appeals clarified when an insurance company would not be precluded from offering a defense to its refusal to pay no – fault benefits even though it denied the claims beyond the 30 day period. There, Travelers issued its denial nearly two years after receiving the claim, based upon the assignor’s statement that he had never received medical supplies from the plaintiff. The Civil Court denied plaintiff’s motion for summary judgment, finding that defendant was not precluded by the 30 day rule since it had asserted fraud as a defense. The Appellate Division affirmed the Appellate Term’s reversal of the lower court’s order denying plaintiff summary judgment on the grounds that :

in this case, unlike a staged accident case, there was an actual automobile accident, which

caused Nivelo to sustain actual injuries, for which he was treated by actual health care providers, who issued actual prescriptions for medical supplies to treat his injuries. Nivelo’s undisputably real accident had resulting injuries triggered with the coverage provided for in his insurance policy with the defendant” Fair Price Med. Supply Corp. V. Travelers Indem. Co. 42 AD3d 277, 284 (2d Dept. 2007) affg 9 Misc 3d 76 (App. Term 2d and 11th Jud. Dist 2005).

In sum, the Appellate Division concluded that while Travelers could contest the assignor’s claim as fraudulent, it must do so within the tight deadlines imposed by the no -fault system. 42 AD3d at 286.

The Court of Appeals affirmed . It first cited to its recent review of the legal framework behind the No – Fault Law in Hospital for Joint Diseases v. Travelers Prop. Cas. Ins., 9 NY3d 312, 317 (2007); namely that the no fault insurance system was designed to ensure “prompt compensation for losses incurred by accident victims without regard to fault or negligence,” to reduce the burden on the courts, and to provide substantial premium savings to New York motorists. ” Citing to its prior decision in Central General Hospital, supra, the Court cautioned that there was only one “narrow” exception to the preclusion rule for those situations where an insurance company raises the defense of lack of coverage. 9 NY3d at 318 . The Court explained that in such cases “an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the

first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. Fair Price, 10 NY3d at at 563 citing Joint Diseases, 9 NY3d at 318. See, e.g. Tahir v. Progressive Casualty Ins. Co., 12 Misc 3d 657, 662 (Civil Ct., NY Co., 2006) (“staged accident fraud” actually posed an issue of non coverage as opposed to fraud because under no -fault concepts, insurance coverage is limited to an “accident”).

Thus, the “key issue” in every case is whether the “facts fit within the narrow no-coverage exception to the preclusion rule” 10 NY3d at 564. A court, in determining whether a specific defense is precluded under the 30 day rule or falls within the exception entails a judgment as to whether the defense is more like a “normal exception ” from coverage such as a policy exclusion or a lack of coverage in the first instance, i.e. a defense “implicating a coverage matter.” 10 NY3d at 565. [*4]

In Westchester Medical Center v. Lincoln General Ins. Co., 60 AD3d 1045 (2d Dept. 2009), the Second Department found that the defendant failed to raise a triable issue of fact solely based on the hearsay statement of its investigator, as to whether the accident was covered by Workers Compensation benefits. The court then added that “defendant’s possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a workers compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be a timely service of the disclaimer” Id at 1046 citing Fair Price supra.,

The Second Department decision in Westchester, supra, despite its brevity, controls the instant matter. Furthermore, as set forth above, the Second Department has previously enunciated its position on the preclusion rule in Fair Price, supra wherein it declared that as long as there was an actual automobile accident, which caused the assignor to sustain actual injuries for which he was treated by an actual health care provider, the case would not fall within the narrow exception to the preclusion rule. Defendant does not contend otherwise but merely argues that workers compensation is “primary” and that there is no coverage for no fault benefits until and unless a workers compensation board makes a determination that the assignor is not covered by workers compensation at which point the no – fault insurer is obligated to pay first party benefits.

Defendant cannot escape this rule by now claiming that there was “fraud ” or “misrepresentation” by as the assignor in obtaining the policy. Defendant fails to allege the type of fraud which will warrant the suspension of the preclusion. This distinction was aptly drawn in

Carnegie Hill Orthopedic Servs. P.C. v. GEICO Ins. Co., 2008 NY Slip Op 50639U, 19 Misc 3d 1111A, 862 N.Y.S.2d 813 (NY Sup. Ct. 2008) wherein the court stated that “(t)he defense of fraud based upon “staged accidents” or intentional collisions are considered defenses premised on lack of coverage, and have been found not subject to the rigorous 30-day rule because there was, in fact, no “accident.” See, Mtr. of Allstate Ins. Co v Massre, 14 AD3d 610 (2nd Dept. 2005); State Farm Mutual Automobile Ins. Co. v Laguerre, 305 AD2d 490 (2nd Dept. 2003); Metro Medical Diagnostics, P.C. v Eagle Ins. Co., 293 AD2d 751 (2nd Dept. 2002). On the other hand, cases involving fraudulent billing or excessive treatment are considered claims of “provider fraud” and can be precluded by the 30-day rule. Carnegie Hill, supra at 4 . See, Careplus Medical Supply Inc v State-Wide Ins. Co., 11 Misc 3d 29 (App Term, 2nd & 11th Jud Dists 2005); MGM Psychiatry Care PC v Utica Mutual Ins. Co., 12 Misc 3d 137(A), 824 N.Y.S.2d 763,(App Term, 2nd & 11th Jud Dists 2006).

The Carnegie court noted that the ” key distinction is that in the first circumstance the insurance carrier demonstrated that an issue existed as to whether there was any coverage at all, whereas in the second the courts were presented with an exclusion under the policy, which does not mean that there was no contractual obligation in the first instance. In the latter, the 30-day rule still applies”. Id at 4 citing Fair Price Supply Corp., supra at 42 AD3d 277.

In fact, in Fair Price, supra, the Second Department specifically stated that the exception [*5]to the preclusion rule was carved out specifically where an insurer failed to timely pay or deny fraudulent claims that arise out of staged automobile accidents. 42 AD3d at 283. The rationale for such a holding was that “a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an “accident” covered by the subject insurance policy.” Id. To that end, no matter how “egregious” the alleged fraud was in the case before it ( medical supply company’s claim was fraudulent as medical supplies were never delivered), it was not related to the existence of coverage in the first instance. Id. at 284.

Nor does the fraudulent misrepresentation raised by defendant herein fall into the category of fraudulent incorporation A defendant is not precluded from raising its defense that plaintiff may be fraudulently incorporated since it is ” possibly” owned by both a physician and non physician, the latter of which is prohibited by both the Business Incorporation Law, the No – fault regulations and the seminal case of State Farm Mutual Auto Ins. V. Mallela, 4 NY3d 313 (2005).^[FN2]

In Eastern Medical P.C. v. Allstate Ins. Co., 19 Misc 3d 775 (Dist. Ct. Nassau Co. 2008), the court rejected Allstate’s contention that Fair Price had reshaped the analysis of fraud based defenses so as to make a Mallela fraudulent incorporation defense untimely if not made within the 30 day denial period. See, Manhattan Medical Imaging, P,C, v, State Farm Auto Ins,., 2008 NY Slip Op. 51844 (U), 20 Misc 3d 1144 (A) (Civil Ct., Richmond Co. 2008). The court found that the Mallela defense was not predicated upon a policy exclusion or the extent of coverage provided by a contract of insurance but rather upon a statutory defense arising from a claimant’s failure to comply with applicable sections of the Business Corporation, Limited Liability and Education Laws. Id at 779-780. Hence, the challenged regulation in Mallela did not create a new category of exclusion but rather was “a condition precedent with which all claimants must comply in order to receive benefits.” Id at 780 citing 4 NY3d at 321 n.3. Therefore, Fair Price did not

alter, much less address prior precedent that a fraudulent incorporation defense “is a non- waivable defense .and is therefore not subject to the 30-day preclusion rule” ( Midwood Acupuncture P.C. v. State Farm Mutual Auto, 14 Misc 3d 131A, 2007 N.Y Slip Op 50052 U

( App. Term, 2d Dept. 2007). Id at 781. Nor was such a defense waived by the failure to assert it in a denial of claim form. Multiquest v. Allstate Ins. Co., 17 Misc 3d 37, 39 ( App. Term, 2d Dept. 2007).

Since the instant defendant’s claim of fraud does not fall into the category of fraud in pursuance of a staged accident or fraudulent incorporation, it does not fall within the exception to [*6]the preclusion. Having failed to raise the defense that claimant is eligible for workers compensation or that workers compensation is primary in a timely denial, plaintiff is entitled to partial summary judgment. However, since defendant timely mailed its denial based on lack of medical necessity and annexes a sufficient peer review report in support of its denial, this matter will proceed to trial on the issue of medical necessity.

In sum, defendant’s motion for summary judgment is denied and plaintiff’s cross-motion for summary judgment is granted solely with respect to the defense of workers compensation.

DATED: July 6, 2009

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASNbyon

Footnotes

Footnote 1:The court finds that the defendant established that it generated and then mailed out a timely denial based on lack of medical necessity on November 28, 2007 in accordance with its well established procedures and through the personal knowledge of the mail clerk at Global.

Footnote 2:This defense is typically referred to as the “Malella defense” or “fraudulent incorporation” defense.

[*1]

Civil Court of the City of New York, Richmond County, June 30, 2009

APPEARANCES OF COUNSEL

Barry & Associates, L.L.C., Plainview, for defendant.[*2] Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**25 Misc 3d at 244} OPINION OF THE COURT

Katherine A. Levine, J.

{**25 Misc 3d at 245}This case calls the court to reconcile the seeming anomaly between precedent and the insurance regulations as to what repercussions attach to an insurance carrier’s failure to adhere to the time limits for requesting follow-up verification in no-fault insurance cases. Since the regulations only address the repercussion that attaches to an insurer’s late submission of an additional verification request,^[FN1] and the tenets of statutory construction mandate that different parts of one statute are to be construed together, this court concludes that an insurance carrier should not be subject to greater penalties for submitting a late follow-up verification request than for submitting a late additional verification request.

Plaintiff Pine Hollow Medical, P.C., a medical service provider, brings this action pursuant to Insurance Law § 5106 (a) to recover $699.34 for services it provided to its assignor Jonathan Aurelien, for injuries he allegedly sustained in an automobile accident. Defendant Global Liberty Insurance moved for summary judgment on the grounds that plaintiff’s lawsuit was premature since plaintiff failed to comply with defendant’s verification requests. Plaintiff does not dispute defendant’s assertion that it never provided the requested information, but asserts that defendant’s follow-up verification request was late because it was made on the 11th day after 30 days had already transpired since defendant’s first request for verification, in violation of 11 NYCRR 65-3.6 (b).

Aurelien was allegedly injured in an automobile accident and received medical treatment at Pine Hollow on March 23, 2006. Global sent a verification request to plaintiff’s attorney for a [*3]letter of medical necessity from the referring physician on April 6, 2006. Having received no response, defendant mailed a second verification request dated May 17, 2006, requesting the same letter of medical necessity. It appears that defendant was thus one day late in requesting the follow-up verification.

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].) An insurer may toll the 30-day period by properly{**25 Misc 3d at 246} requesting additional verification^[FN2] within 15 days from the receipt of the no-fault insurance claim forms (NF-3 or claim form). (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004]; 11 NYCRR 65-3.5 [b].^[FN3]) If the “requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b]).^[FN4] If the insurer does not receive the verification request after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]). The insurer must pay or deny the claim within 30 days after it receives verification of all relevant information it requested pursuant to its original request for additional information (11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1];^[FN5] Westchester County Med. Ctr. at 554).

In Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431, 432 [2d Dept 1996]) the court found that the follow-up requirements for verification requests, as contained in 11 NYCRR 65.15 (e) (2) (the predecessor to 11 NYCRR 65-3.6 [b]), must be “strictly[*4] construed” so that “when an insurance company has not received ‘verification’ within 30 days after requesting it, [the insurer] must, within the ensuing 10 days, ‘follow up’ with a second request, documenting the second request in the file and notifying the applicant or the applicant’s attorney.” In Presbyterian (supra) the insurer, after not receiving{**25 Misc 3d at 247} a response to its request for additional verification, failed to make any follow-up request and merely waited three months until it received the requested records after which it issued a denial. The Second Department found that the 30-day period within which the carrier should have paid or denied the claim had run ” ‘even before verification [was] obtained’, due to the carrier’s ‘lack of diligence in obtaining the verification’ ” (233 AD2d at 433, quoting Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 154 [2d Dept 1986]).

There have been divergent opinions on whether the defendant insurance company must wait until 30 days have expired before sending out the follow-up verification request. In Psych. & Massage Therapy Assoc., PLLC (5 Misc 3d at 724-725), the court found that the regulations do not mandate that the insurer wait 30 days before sending a follow-up request since the time frame of 30 days was a limit to the amount of time an insurer may wait before sending a follow-up request. This expeditious handling of the verification follow up was consistent with the case law and the goals of the No-Fault Law.^[FN6] In Park Slope Med. & Surgical Supply, Inc. v Country-Wide Ins. Co. (19 Misc 3d 1138[A], 2008 NY Slip Op 51063[U] [Civ Ct, Richmond County 2008]), this court adopted the reasoning of Psych. & Massage Therapy Assoc. (supra) and held that defendant is allowed to send a follow-up verification request on the 30th day after the original request for verification.

Based upon the aforementioned precedent, it would appear that since defendant was one day outside the 10-day window period in which it had to mail its follow-up verification request, defendant could not take advantage of the tolling period and hence could not argue that the instant lawsuit was premature. However, unlike the arguments presented in the aforementioned cases, defendant here raises the somewhat novel argument that even if its follow-up verification request was untimely, “such untimeliness is not fatal but would merely reduce the number of days it has to either pay or deny the claim.” Specifically, defendant argues that since it was only one day late in mailing its{**25 Misc 3d at 248} follow-up verification request, the 30-day time period it had to pay or deny the claim would still begin to run after it received all of the requested verification but would be reduced by one day to 29 days. Defendant does not cite any authority for this proposition. [*5]

11 NYCRR 65-3.8 (j) states that “[f]or the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue . . . , with the exception of section 65-3.6 of this subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.” Section 65-3.6 (b), as set forth above, governs the follow-up requirements for verification requests if any verification has not been supplied to the insurer pursuant to the additional request.

There appears to be no higher court analysis of what the phrase “with the exception of section 65-3.6” means within the context of ascertaining what repercussions, if any, attach to an insurer’s late submission of a follow-up verification. However, in Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553 [1999]), the Second Department found that under the old regulations, a follow-up letter that was sent beyond the 10-day window period was timely and that the insured was entitled to the tolling of the 30 days as contained in 11 NYCRR 65.15 (g). Since the plaintiff never responded to the follow-up verification letter, the 30-day period in which defendant had to pay or deny the claim never commenced and defendant’s denial of the claim was not untimely.

There, the defendant received the claim on April 28, 1997, and made a timely demand for additional verification on May 1. Having not received verification within 30 days, the defendant then made a “timely demand” for follow-up verification on June 13. (262 AD2d at 555.) The defendant thereupon denied the claim on June 19. In its brief before the Second Department, the defendant insurer argued that even assuming June 13^[FN7] was the date it mailed the follow-up request, its denial was still timely on the grounds that the regulations (11 NYCRR 65.15 [g] [10]) only addressed the repercussions if the initial{**25 Misc 3d at 249} (additional) verification request was not timely sent, and then did not require preclusion of the defense but only a reduction of the 30-day period in which the insurer had to pay or deny the claim, after receiving the verification material, by the amount of the delay. Without commenting on defendant’s reasoning, the Second Department found that defendant had submitted a timely follow-up request.

Subsequently, in Liberty Queens Med. v Tri-State Consumer Ins. (188 Misc 2d 835 [Nassau Dist Ct 2001]), the court dealt directly with the apparent inconsistency between the Appellate Division precedent that the verification requirements must be strictly complied with [*6]and the regulatory language which provided for an extension of time in which a defendant insurer had to pay or deny a claim based upon outstanding verification pursuant to 11 NYCRR 65.15 (d) (2) and (g) (1) (under the new regulations—11 NYCRR 65-3.6 [b] and 65-3.8 [j]). There, the defendant insurer made the additional verification request 11 days after receiving the claim and hence was one day late in making the request pursuant to 11 NYCRR 65.15 (d) (2).

The plaintiff argued that because the request for additional verification was untimely, the defendant insurer waived its right to extend the 30-day period and therefore was required to make a determination on the claim within 30 days of the initial submission, citing Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431 [1996]). The Liberty court first distinguished the matter before it from Presbyterian where the court was not required by the facts before it to focus on the “specific issue presented here,” i.e., the tolling provision of section 65.15 (g) (10). (188 Misc 2d at 839.) Therefore, the “broad general language” utilized by the Presbyterian court should not be construed as determinative of how the court should rule upon a one-day delay in complying with the specific regulation before it. (Id.)

Addressing the insured’s “one-day deviation” from the requirement that it send its additional verification request within 10 days, the court found that the purpose of the No-Fault Law—”avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims”—was sufficiently served by “truncating the presumptive 30-day period which the insurer itself would otherwise have to eventually review the proof submitted” as set forth in 11 NYCRR 65.15 (g) (10). (Liberty at 840.) To impose the “draconian result” requested by plaintiff for a “one-day deviation” from the promulgated standards{**25 Misc 3d at 250} would deprive the insurer entirely of its right to obtain and review the needed proof and would “contravene rather than implement the statutory intent.” (Id.)

Based upon the two aforementioned precedents, it is clear that defendant should not be deprived entirely of the opportunity to review and obtain the needed proof by dint of its one-day tardiness in submitting its follow-up request. 11 NYCRR 65-3.8 (j) only addresses the repercussions of an insurer’s failure to request the additional verification within the set time lines, since it expressly excludes section 65-3.6, which discusses follow-up verification requests, and then sets forth that any deviation from the time frame shall reduce the 30 calendar days allowed in which to pay or deny the claim. As such, the regulations do not even contain a punitive provision for an insurer who does not make a follow-up verification request within the 10-day period.

“A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent” (McKinney’s Cons Laws of NY, Book 1, Statutes § 97; Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 691 [2006]) and construed so as to harmonize [*7]with one another (Anglin v Anglin, 80 NY2d 553, 558 [1992]). In the interpretative context, a court “must read the entire law and accord respect to the interlocking and interrelated features of all its parts.” (Anglin at 558.) Furthermore, even apparently conflicting provisions of a statute must be reconciled in a manner most consistent with the overall legislative intent. (Statutes § 98; Schulman v Group Health Inc., 39 AD3d 223 [1st Dept 2007].) Finally, the common mandate of statutory construction is to assume that the Legislature “did not intend a patently absurd result.” (Covington v Walker, 307 AD2d 908, 909 [2d Dept 2003]; see Statutes § 145; In re Adamo, 619 F2d 216, 219 [2d Cir 1980].)

It would be patently absurd and contravene the meaning of 11 NYCRR 65-3.8 (j) to impose a more draconian punishment on an insurer who is one day late in requesting follow-up verification than on an insurer who is one day late in requesting additional verification. Since in the latter situation, the only repercussion to the insurer’s tardiness is the diminution in the time it has to issue a denial or pay the claim, it begs all credulity to impose the more drastic remedy of precluding the insurer from even issuing a denial because of its tardiness in requesting follow-up verification. If anything, the aforementioned regulation{**25 Misc 3d at 251} imposes no repercussion upon the insurer who is tardy in requesting follow up.

Since defendant has yet to receive any response to its verification requests, its 30-day period in which to deny or pay the claim has not yet commenced and the instant action is premature. In light of the above, it is not necessary for this court to determine whether the defendant’s time to deny or pay the claim, once it does receive the requested information, is diminished by one day.

Defendant’s motion for summary judgment is granted and the case is dismissed.

Footnotes

Footnote 1: As will be explained below, an additional verification request precedes a follow-up verification request under the no-fault insurance regulations.

Footnote 2: The additional verification request is to be distinguished from the initial verification forms (including the claim form or NF-3) which must be forwarded by the insurer to the parties required to complete them within 10 days of receipt of the completed application for no-fault benefits (NF-2).

Footnote 3: This opinion will also cite to the analogous provisions under the old no-fault regulations (old regulations) which were effective through December 31, 2002, since many of the operative cases were brought under the old regulations. The analogous provision to section 65-3.5 (b) under the old regulations is 11 NYCRR 65.15 (d) (1), which provided that an insurer shall request additional verification within 10 days of receiving the prescribed verification forms.

Footnote 4: The analogous provision under the old regulations is 11 NYCRR 65.15 (e) (2).

Footnote 5: The analogous provision under the old regulations is 11 NYCRR 65.15 (g) (1).

Footnote 6: However, in Sea Side Med., P.C. v State Farm Mut. Auto Ins. Co. (12 Misc 3d 1127 [Civ Ct, Richmond County 2006]), Judge Sweeney found that the clear language of 11 NYCRR 65-3.6 (b) required the insurer to “follow up with the plaintiff for the verification at least once in the 10-day period specified therein” (id. at 1131). By sending the follow-up verification request only 28 days after the first verification request had been mailed, defendant failed to mail the follow-up request within the 10 days and “the toll occasioned by defendant’s initial requests for verification dissipated ab initio” (id.).

Footnote 7: (See reply brief for defendant-appellant in Westchester, available at 1999 WL 34593237 [briefs and other related documents].) In their briefs, the parties differed as to when the insurer sent the follow-up verification request; the plaintiff contended that it was sent on June 13 while the defendant insurer argued it was sent on June 3. The Appellate Division adopted June 13 as the date that the follow-up verification request was sent and this court will presume that the Appellate Division, after considering all the evidence, properly ascertained the operative date.

Civil Court of the City of New York, Richmond County

21817/07

Attorney’s for Defendant:

Gullo & Associates

520 86th Street

Brooklyn, New York 11209

Attorney’s for Plaintiff:

Phillips, Krantz & Levi, LLP

14 Avenue T

Brooklyn, New York 11223

Katherine A. Levine, J.

This case calls into question what precisely a peer review report, submitted by an insurance company in support of its denial for lack of medical necessity, must contain in order to defeat a plaintiff’s motion for summary judgment and/or to grant a defendant’s cross motion for summary judgment. As will be explained below, while a peer review report may be sufficient to defeat a plaintiff’s motion for summary judgment it may not be sufficient to warrant granting of summary judgment to the defendant insurer, even when the plaintiff does not submit evidence to rebut the report. This dichotomy, in the context of no-fault insurance, has not been definitively clarified by the higher courts.

Plaintiff Millennium Radiology, P.C, (“plaintiff” or “Millennium”) commenced this action to recover from defendant, New York Central Mutual Fire Insurance Company (“defendant” or “NY Central”), the sum of $1,791.71 for the two MRIs it performed upon its assignor, Adrine Grant (“Grant” or “assignor”). In support of its application for summary judgment, plaintiff contends that the defendant has not submitted competent medical evidence to support its denial of the claim for lack of medical necessity.

Defendant opposed plaintiff’s application and cross-moved for summary judgment on the [*2]grounds that the services provided by plaintiff were not medically necessary. In support of its denial, defendant submitted a copy of a peer review prepared by its chiropractor Albert Claps, D.C. who concluded that there was no justification for the MRIs performed upon the assignor because the referring provider failed to indicate whether the assignor was experiencing “an improvement or degradation with regard to her causally related symptoms” and because the doctor failed to reveal why the MRIs were ordered or how the outcomes of these tests would assist in the treatment of the assignor.

During oral argument, defendant maintained that the complaint should be dismissed because the plaintiff had failed to submit any medical evidence to rebut the peer review report. Plaintiff responded that it was under no duty to offer any evidence in rebuttal and that the conclusion of defendant’s expert regarding the medical necessity of the MRIs created an issue of fact which must be determined at trial.

A plaintiff makes a prima facie case “by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits were was overdue.” A.B. Medical Services, v. Liberty Mutual Ins. Co., 39 AD3d 779, 780 (2d Dept. 2007). See, Ins. Law, §5106(a); 11 NYCRR 65-3.8(c); Nyack Hospital v. Metropolitan Property & Cas. Co., 16 AD3d 564 (2d Dept. 2005); Mary Immaculate Hospital v. Allstate Ins. Co., 5 AD3d 742– 43 (2d Dept. 2004). It is clear that plaintiff has established its prima facie case. The affidavit of plaintiff’s billing manager exhaustively details the record keeping procedures of the business, and clearly sets forth the procedures for the creation and retention of bills, of which she has personal knowledge. See Manhattan Medical v. State Farm Mutual Automobile, 2008 NY Slip Op. 51844(U), 20 Misc 3d 1144(A)(Civil Ct., Richmond Co.2008) citing Second Medical v. Auto One Ins., 20 Misc 3d 291, 294-95 (Civil Ct., Kings Co. 2008). The affidavit further details that the bills at issue were made and kept in the ordinary course of business at the time the services were rendered and sets forth the precise mailing procedure that was followed. Moreover, the billing manager personally mailed the bill and forms.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 NYS2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). Thus, once a plaintiff has proven its prima facie case, the defendant must prove that the test was not medically necessary. Nir. v. Allstate Insurance Co., 7 Misc 3d 544, 546 (Civil Ct, Kings Co. 2005). A defendant may raise a triable issue of fact by submitting a denial of claim form stating that the claim is being denied based on a medical examination or peer review report requested by the insurer. The insurer need not set forth the medical rationale in its denial of claim form. Rather, the insurer need only submit a copy of that report to the applicant or its attorney upon written request. A.B. Medical Services, PLLC v GEICO, 39 AD3d 778, 779 ( 2d Dept. 2007); A B. Medical Services v. Liberty Mutual Ins. Co., 39 AD3d 779 ( 2d Dept. 2007). See, 11 NYCRR 65-3.8(b)(4).

Summary judgment is a “drastic and harsh” remedy and “should be used sparingly.” Utica National Ins. Group v. Providian Medical Services, P.C.,2008 N.Y Slip. Op.52610U, 22 Misc 3d 1107A ( Sup. Ct., Queens Co., 2008). See Epstein v. Scally, 99 AD2d 713, 714 (1st Dept. 1984 ). Summary judgment cannot be resolved by conflicting affidavits. Epstein v. Scally, [*3]supra . To grant summary judgment, it must clearly appear, on the papers alone, ” that no material and triable issue of fact is presented”. Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980); Utica Nat’l Ins. Group, supra . The court’s function on a motion for summary judgment is issue finding rather than issue determination. Precision Diagnostic Imaging, P.C., v. Travelers Insurance Co., 8 Misc 3d 435, 436 ( Civil Ct., N.Y Co. 2005), citing Brown v Achy, 9 AD3d 30, 33 n 2 (1st Dept. 2004). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

To defeat a plaintiff’s motion for summary judgment, the report must be in admissible form; i.e. signed and sworn to. See, Radiology Today v. GEICO, 20 Misc 3d 70

(App. Term, 2d Dept. 2008); A.B. Medical Services PLLC v. Lumbermens Mutual Cas. Co., 4 Misc 3d 86 (App. Term, 2 & 11th Jud. Dists. 2004). Some courts have also held that in additional to being in admissible form, the peer review report or medical examination must raise a triable issue of fact for lack of medical necessity by setting forth “a sufficiently detailed factual basis and medical rationale for the claim’s rejection.” Nir, supra at 546 citing Amaze Medical Supply v. Eagle Ins., 2 Misc 3d 134A, 2004 NY Slip Op. 51701U (App. Term, 2d and 11th Jud. Dists. 2003). Cross bridge Diagnostic Radiology, PC v. Progressive Ins. Co. 2008 NY Slip Op 51761U , 20 Misc 3d 143A (App. Term, 2d Dept. 2008); Delta Diagnostic v. Chubb Insurance Co., 17 Misc 3d 16 (App. Term, 2d Dept. 2007). The quantum of evidence presented in the peer review report need not rise to the level of evidence presented at trial through the peer review doctor to substantiate the peer review report’s conclusion as to lack of medical necessity. Nir, supra at 546-547.

Plaintiff errs in contending that its motion should be granted since the peer review report does not contain competent medical evidence to support a finding of medical necessity, as a party cannot establish its entitlement to judgment “merely by pointing to gaps in the opponent’ s proof.” Falah v. Stop & Shop Companies, Inc., 41 AD3d 638 (2d Dept. 2007). Furthermore, the peer review report is in admissible form and contains a sufficient rationale so as to create an issue of fact concerning medical necessity. While somewhat bare bones, the report does in artfully state that the MRI studies appear to be medically unnecessary because the referring doctor does not indicate whether the claimant experienced improvement or degradation with regard to her causally related symptoms, and there was no indication from the referring doctor why the MRIs were ordered or how the anticipated outcome of the tests would assist with the management of the assignor’s case.

However, while a peer review report may be sufficient to defeat a motion for summary judgment by the plaintiff, at trial, the peer review report must be supported by testimony regarding the “generally accepted medical/professional practice. “Nir, supra at 547 citing CityWide Social Work & Psychological Servs. v. Travelers Indemnity Co., 3 Misc 3d 608, 612 (Civil Ct., Kings Co. 2004). Generally accepted practice “is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling. CityWide, supra at 616. As this court held in H.M. Parekh v. Allstate Ins. Co., Index No. 2041/07, Civil Ct, Richmond County, 3/04/08, at trial a defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” H.M. Parekh v. Allstate Ins. Co., supra , citing Fifth Ave. Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 807-08 (Civ. Ct. Queens Co. 2003).

The instant peer review report, standing alone, does not rise to this standard and does not establish, as a matter of law, that the services rendered were not medically necessary. As such, this court finds the contents of the report to be insufficient to warrant the granting of defendant’s cross motion, even though the plaintiff failed to submit evidence to rebut the peer review.

Defendant cites a plethora of Appellate Term cases for the proposition that once the defendant insurer rebuts the inference that the services are not medically necessary, the plaintiff must refute this inference in order to create a triable issue of fact. The court first notes that the Appellate Term at times has not ruled that defendant must be awarded summary judgment unless plaintiff refutes the evidence offered by defendant, but only that “such proof may entitled the insurer to summary judgment.” Damadian MRI in Elmhurst v. Liberty Mutual Ins., 2 Misc 3d 128A, 787 NYS2d 919 (App. Term, 2d & 11th Jud. Dists 2004). See A.B. Medical Servs.v. NY Central Mutual Fire Ins., 3 Misc 3d 136A, 787 NYS2d 675 (App. Term 9 & 10th Jud. Dists. 2004)(“summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact). The Appellate Division has not addressed this dichotomy.

Since the report does not contain sufficient evidence to demonstrate the absence of any material issues of fact so as to warrant judgment to defendant (See, e.g.,. Delta Diagnostic v. Chubb, 17 Misc 3d 16, 18 (App. Term 2d Dept. 2007), this case will proceed to trial.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 30, 2009______________________Honorable Katherine A. Levine

Judge, Civil Court