SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered August 12, 2005, deemed from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 12, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,404.30.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claim for $270, and matter remanded to the
court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted plaintiff’s motion for summary judgment and the instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The NF-3 forms submitted in support of plaintiff’s motion for summary judgment regarding two of its claims ($630 and $694.30) identified the treating provider as Kimer Arkady and under the “Business Relation” category therein, a “V” was placed in the box labeled “Independent Contractor.” It is well settled that “[w]here a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a provider’ of the health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11[a]) and is therefore not entitled to recover direct payment’ of assigned no-fault benefits from the insurer . . . .” (Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d & 11th Jud Dists 2006] [citations omitted]). Consequently, plaintiff was not entitled to summary judgment on its claims for the sums of $630 and $694.30.

Furthermore, plaintiff was not entitled to summary judgment on its claim for the sum of $810. Defendant established that this claim was timely denied on the ground, inter alia, that the fees charged for the services provided were excessive and not in accordance with the Workers’ Compensation fee schedule. Accordingly, said defense raised a triable issue of fact (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists 2005]).

Turning to plaintiff’s claim for the sum of $270, since defendant failed to pay or deny the claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense that the assignor’s injuries were not causally related to the accident despite its untimely denial (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists 2006]), the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries sustained by plaintiff’s assignor was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant failed to establish the existence of a triable issue of fact with respect to this claim.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $270 claim, and the matter is remanded to the court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur. [*3]
Decision Date: February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered October 28, 2005. The judgment confirmed three arbitration awards and awarded petitioner the principal sum of $10,300.80.

Judgment affirmed without costs.

Petitioner commenced compulsory arbitration proceedings against respondent, pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.11 (see Insurance Law § 5105 [b]), seeking reimbursement in the amount of $10,300.80 for no-fault benefits paid to three claimants. The arbitrator issued three awards in favor of petitioner. Respondent did not seek to vacate or modify the awards, but submitted opposition to the petition to confirm said awards. The court below granted the petition, ruling that, inter alia, respondent failed to seek to vacate the arbitration awards within the statutory period pursuant to CPLR 7511. A judgment was entered and the instant appeal ensued.

As a preliminary matter, we note that respondent was entitled to make its arguments for vacating the arbitration awards in opposition to a petition to confirm the awards, even though the statutory 90-day period in which to seek vacatur of the arbitration awards had expired (see Matter of Brentnall v Nationwide Mut. Ins. Co., 194 AD2d 537 [1993]; State Farm Mut. Ins. Co. v Fireman’s Fund Ins. Co., 121 AD2d 529 [1986]).

Upon a review of the record, we find that the instant awards in the compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v [*2]Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). In the awards, the arbitrator indicated that he had considered, inter alia, respondent’s affirmative defenses and the police report. Accordingly, it cannot be said that the
arbitration awards were arbitrary and capricious or unsupported by any reasonable hypothesis. Consequently, the judgment is affirmed.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: February 08, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered October 11, 2006, deemed from a judgment entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 11, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $5,416.42.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. A judgment was subsequently entered.
On appeal, defendant asserts that the affidavit by plaintiff’s employee, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
In view of the foregoing, we reach no other issue.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered June 7, 2006, deemed from a judgment entered July 31, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 7, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

Judgment reversed without costs, so much of the order entered June 7, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant contends, inter alia, that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s [*2]practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Defendant cross-moved for summary judgment dismissing the complaint on the ground that it timely denied plaintiff’s claims based on a lack of medical necessity as set
forth in affirmed peer review reports. Plaintiff’s contention that defendant was not entitled to summary judgment because its NF-10 denial forms are fatally defective lacks merit (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). However, defendant failed to establish that its denial of claim forms were timely since defendant admittedly mailed its NF-10 denial forms more than 30 days following its receipt of the claim forms (Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]) without also demonstrating that its time to pay or deny same was tolled pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (a) (1). Accordingly, defendant’s cross motion for summary judgment was properly denied since defendant failed to demonstrate that its defense of lack of medical necessity was not precluded.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated July 19, 2006, deemed from a judgment entered November 14, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 19, 2006 order granting plaintiff’s cross motion for summary judgment and denying, in effect as academic, defendant’s motion to compel depositions, awarded plaintiff the principal sum of $4,670.12.

Judgment reversed without costs, order dated July 19, 2006 vacated, plaintiff’s cross motion for summary judgment denied and matter remanded to the court below for determination of defendant’s motion to compel depositions.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order, pursuant to CPLR 3124 and 3126, to compel depositions of plaintiff, plaintiff’s assignor and the treating physician, and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit stated in a conclusory manner that the documents annexed thereto were plaintiff’s business records. Defendant opposed plaintiff’s cross motion. The court granted plaintiff’s cross motion for summary judgment and denied, in effect as academic, defendant’s motion to compel depositions. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in [*2]support of plaintiff’s cross motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s cross motion for summary judgment is denied.

Inasmuch as the lower court denied defendant’s motion to compel depositions as a result of its conclusion that plaintiff was entitled to summary judgment, the matter is remanded to the court below for a determination of defendant’s motion.

In light of the foregoing, we reach no other issue.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered March 2, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate a default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a), both a reasonable excuse for the default and a meritorious defense (see
Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]). Despite the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.

Defendant’s conclusory allegations that it possessed a meritorious defense were insufficient to warrant vacatur of the default judgment since defendant failed to show that its [*2]proffered defenses were set forth in timely denial of claim forms such that defendant is not precluded from interposing its defenses (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). The documentary proof annexed to defendant’s opposing papers was insufficient to give rise to a presumption that the denial of claim forms were timely mailed pursuant to a standard office practice or procedure (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that it possessed a reasonable excuse for its failure to timely serve its answer. Defendant’s claims representative merely assumed that defendant’s time to serve its answer was enlarged because she faxed a proposed stipulation to plaintiff granting defendant an enlargement of its time to answer. The claims representative never spoke to plaintiff’s counsel about such an extension, and she never received any indication that plaintiff agreed to extend defendant’s time to answer.

In light of the foregoing, the order is reversed and defendant’s motion to vacate the default judgment is denied.
Weston Patterson, J.P. and Rios, J., concur.
Decision Date: February 06, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 19, 2006. The judgment denied the petition to vacate a master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

563 Grand Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which denied its claims for assigned first-party no-fault benefits. After respondent opposed the petition, the court denied the petition. This appeal by petitioner ensued.

An arbitrator in an arbitration proceeding to recover no-fault benefits may raise any issue which the arbitrator deems relevant (see Insurance Department Regulations [11 NYCRR] § 65-4.4 [e]; § 65-4.5 [o]; see also Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 872 [2003]; 563 Grand Med., P.C. v New York State Ins. Dept., 24 AD3d 413 [2005]; cf. Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]). The master arbitrator determined that, based upon the documents submitted to the arbitrator, the arbitrator had a rational basis for finding that petitioner was not entitled to recover because, among other things, petitioner may have been seeking to recover for work performed by an independent contractor. In our view, the master arbitrator’s determination was not arbitrary, capricious or irrational (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [*2][2003]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: January 8, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the
documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below denied the motion, finding that defendant provided proof of timely verification requests and of a timely denial based upon a peer review. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Weston Patterson, J.P., Golia and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered December 1, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of
lack of medical necessity or, in the alternative, on the ground that the assignor was not injured in a covered accident. The court below denied plaintiff’s motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient and granted defendant’s cross motion for summary judgment due to plaintiff’s failure to proffer evidence rebutting the peer review report annexed to defendant’s cross motion. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to [*2]establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Plaintiff’s contention that defendant was not entitled to summary judgment on its cross motion because the NF-10 denial form is fatally defective lacks merit. Inasmuch as defendant’s omissions from the NF-10 denial form in this matter are neither “basic” (cf. Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]) nor “numerous” (cf. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]), they do not render the denial form fatally defective.

Further, defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant’s cross motion for summary judgment (A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]).

Weston Patterson, J.P., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
DELTA DIAGNOSTIC RADIOLOGY, P.C.
a/a/o FRANCISCA CHANEYFIELD,

Appellant,

-against-
AMERICAN TRANSIT INSURANCE CO., [*3]

Respondent.

Golia, J., concurs with the result only, in the following memorandum:
While I am in total agreement with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. I note an important legal issue which is an integral part of the majority opinion, that is, the concept that the failure of an answering party to respond to the facts presented by the moving party requires the court to accept those facts as proven.
Decision Date: December 27, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), dated May 16, 2006, deemed an appeal from the judgment entered September 20, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,650.

Judgment reversed without costs and matter remanded to the court below for a new trial.

At the commencement of the trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff’s prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff’s claims were denied, based upon peer reviews, on the ground of lack of medical necessity. After defendant announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff’s claims were denied. The court granted plaintiff’s motion to preclude testimony by defendant’s medical expert. After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued. [*2]

Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify (see Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept]).

In light of the foregoing, the judgment is reversed and a new trial ordered.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007